The United States General Mining Act of 1872 ended a lengthy period of confusion and fragmentation in the mining industry, and has endured as the country’s dominant policy on domestic mining practices ever since. Prior to its passage, U.S. policy on mining had been irregular, differing from state to state, but the frontier had always effectively been open to wildcat prospecting and digging. Galvanized by increased mineral exploration on the frontiers – and in particular the California Gold Rush of 1848-49 – the General Mining Act formalized the practice of open-entry mining, and in doing so spurred further settlement of the western hinterlands of the country. This paper seeks to identify the means by which natural resources were enclosed in early American California, and to further explain how that process of enclosure became legally enshrined, and applied on a national level in the United States. Some scholars have strenuously emphasized the precedents for the Californian system in common law and Hispanic law. In reality, the system that emerged from the gold rush was unprecedented, slipshod, and created with little but the most tokenistic references to prior legal regimes. A certain system had indeed already been established to provide a rudimentary legal framework for claim staking, but it was developed through informal contracts among the miners themselves, and this system is precisely what became legally enshrined in 1872.The directionality of influence should thus be seen as moving primarily from the frontier to the capital, and not the reverse. Despite some congress members’ desire to claim the western mines to help pay for the debt incurred in the Civil War, the legislative establishment’s contributions to the law in its final form were merely dedicated to guaranteeing property rights such that further settlement would be facilitated.

CONQUEST, ANNIHILATION AND SETTLEMENT: CALIFORNIA IN 1848

In 1848, after nearly two years of fighting, the Mexican-American War came to an end on February 2 with the signing of the Treaty of Guadalupe Hidalgo. The Treaty increased the U.S.’s landholdings significantly, winning Washington the rights to California, Nevada, Utah, Arizona, Colorado, New Mexico, and Texas (which had been the source of the initial dispute). The area that would soon develop into the capital of Sacramento was in the early stages of European settlement at the time, largely driven by a Swiss businessman and ranchero named Johann Sutter. An arid an obscure outpost in 1848, the region would change radically following the discovery of gold only nine days before the Treaty’s signing by an American carpenter named James Marshall, who had been working for Sutter at the time.[i]

California’s population was extremely sparse in 1848. Its non-Indian population was close to 15,000, slightly over half of whom were Spanish-speaking and Catholic Californios, while the remainder were more recent American settlers.[ii] Estimates on the Indian population at the time are more spotty. At the time of the first Spanish settlements there in the late eighteenth century, it is thought that their population was close to half a million.[iii] Largely the result of the Spanish mission system – which caused epidemic levels of malnourishment, abortion and infanticide, and disease – that number had dwindled to about 100,000 by the 1840s.[iv] The mission regime was phased out by the Mexican government in 1833, but it was closely followed by an equally brutal system in the cattle- and sheep-raising ranchos. Following a visit to Sutter’s rancho in 1846, traveller James Clyman described the scene at mealtime:

The Capt. [Sutter] keeps 600 or 800 Indians in a complete state of slavery and [as] I had the mortification of seeing them dine I may give a short description. 10 or 15 troughs 3 or 4 feet long were brought out of the cook room and seated in the broiling sun. All the labourers grate and small ran to the troughs like so many pigs and fed themselves with their hands as long as the troughs contain even a moisture.[v]

The ranchos only lasted fifteen years under Mexican rule, and the extraordinarily high rate of Indian mortality had already led to an untenable situation in which the rancheros increasingly needed to defend themselves from restive and retaliatory Indians.[vi] But by the late nineteenth century, their ranks had been reduced to a mere 10,000.[vii]

The legal and political ramifications of the Gold Rush – the General Mining Act included – first need to be understood within the context of urban America’s cultural interpretations of the Western frontier. Following Marshall’s discovery of gold, American settlers migrated to the area in unprecedented numbers, with the population of San Francisco growing from about 1,000 to 25,000 within a single year,[viii] and to about a quarter million by 1880.[ix] There was no feasible way for the state apparatus to keep up. Given the unprecedented nature of this massive influx into public land, there was no effective government and therefore no enforcement of the rule of law. It is within this precise circumstance of indigenous extermination, conquest, and a gaping legal vacuum that American policy on mineral rights were born.

Upon arrival, the miners had little choice but to establish their own legal institutions – or a loose code of conduct at the very least. Congress had adjourned in 1848 before any serious effort could be made at establishing a territorial government in California, and it would not be until 1850 that such a federal sanction would finally come about.[x] There was no land office in which to register a claim,[xi] nor had a geological survey of the place ever been conducted.[xii]

THE MYTHOLOGIZATION OF WESTERN MINING

The anarchic nature of the place gave rise to a pervasive machismo, whereby honor and violence served as the primary moral compass in the camps. Wrote one miner, “Every man carried his code of laws on his hip and administered it according to his pleasure. There was no safety of life or property. So far as the intervention of law was concerned there was no police. … We were absolutely in a state of chaos, society was entirely disorganized.”[xiii]

In the early years of the rush, even the military was incapable of remaining organized; virtually all soldiers would desert upon arrival, trading their meager $7 monthly salary for more lucrative prospects in the mines.[xiv] What system of government the camps did implement was entirely ad hoc, and despite its brutality, nearly every published account of the camps – written primarily for a more urban east coast audience – boasted of the valour of the roughneck system of justice and governance. Another miner later wrote in his memoir:

Formal law was powerless, through corrupt or inefficient officers, to keep in check the many scoundrels and desperados that infested the cities and the diggings; so the miners themselves administered summary justice by means of extemporized courts, and for high crimes were prompt to inflict the highest punishment after the verdict of Judge Lynch. It is undeniable that, in a pioneer society, such rough-and-ready justice was a necessity and that its effects were salutary.[xv]

Indeed, the mythological dimensions of the frontier were not lost on the early boosters of the state. A romanticized archetype of the rugged frontiersman – already a force in popular culture for several decades by then – came to the fore as the true paragon of American liberty and strength. Charles Howard Shinn, author of the 1884 work Mining Camps: A Study in American Frontier Government, was among the most important writers in portraying life on the frontier to a predominantly eastern audience. In so doing, he also consolidated the image of the rugged frontiersman: “He was a plain American citizen cut loose from authority, freed from the restraints and protections of law, and forced to make the defense and organization of society a part of his daily business.”[xvi] Rudimentary, evanescent, and corrupt as they often were, the camps were also exalted as the basis of a new, perhaps truer, American democracy.

Americans were simultaneously re-imagining the frontier as the locus of their national character. This was epitomized in particular by the “Frontier Thesis” of Frederick Jackson Turner, which held that the American character, for the breadth of its existence, had been defined by “the ideal of discovery, the courageous determination to break new paths, indifference to the dogma that because an institution or a condition exists, it must remain. All American experience has gone to the making of the spirit of innovation; it is in the blood and will not be repressed.”[xvii]

While these cultural representations of the frontier played an important role in familiarizing the urban east coast with the emergent society of western mining, the miners themselves began consolidating the process of claim staking. Initially, there was not even an expectation that a tax would be paid on a concession nor was there a coherent system for claim staking under the General Land Office until the passage of the Mining Law of 1866.[xviii] The first-come-first-served nature of early claim staking frequently led to tension among the miners themselves. In his investigation of early law formation, and property rights in Gold Rush California, John Umbeck finds little more by way of quasi-legal institutions than the employment of a handful of Mormons and Indians by Johann Sutter, agreements made among men using machinery that required multiple hands, and the construction of a ramshackle prison at Point Quinton.[xix] In the first years of the rush, in other words, few deals were made, and those that were made were frequently broken. Even had laws been in place at the time, writes Umbeck, they would have been unenforceable given the meager capacity of the state at that time.[xx]

Despite the inchoate state of property rights, however, vagrants continued to flock in the direction of the camps for the simple reason that they were phenomenally lucrative. Given the complexities raised by sluicing and other extraction methods, miners would often overstep their circumscribed plots and interfere with the work of their neighbours.[xxi] In cases where disputes could not be resolved, a general meeting would be called, where a jury would be struck in order to deliver a verdict on the matter. Much romantic emphasis was placed on the institution of the miners’ meeting, which pervaded southwestern camps.[xxii] Operating always on the basis of majority-rule voting, the ad-hoc governance structure was celebrated as a prime example of an American proclivity for pure and direct democracy, and proof that government itself had no necessary role to play in the process of settlement in the west.

Representations of this ad-hoc form of governance only served to further the Turner-esque romanticisation of the frontier. “The rapidity with which society was organized, order restored, and law and equity resumed the balance between man and man, shows the inherent good qualities of the early emigrants,” wrote the Reverend W.A. Scott in his 1855 book, The Wedge of Gold, Or Achan in El Dorado.[xxiii]The governor of California, speaking to his legislature in the same year, echoed these sentiments: “The intelligence and virtue of the people… may be justly esteemed the mainstay of our republican government, and the perennial spring whence issue the streams of enduring prosperity and happiness.”[xxiv]

THE EVOLUTION OF CLAIM STAKING

The legal practice of claim staking directly mirrored its ad hoc practice on the frontier. In other words, the state, where it made any legislation whatsoever, continually validated and strengthened existing practices of claim staking, never impinging on the industry to any significant degree. The fact that miners themselves tended to settle the territory before government had established itself – first California, and then the eastern frontier, pushing into Nevada, New Mexico, Arizona, and Colorado ­– ­fed into this pattern.

The pattern of government ratification of existing practices can be seen in the earliest years of the Gold Rush. The role of federal troops at that time was exclusively relegated to protecting the mining camps from hostile Indians[xxv] – a task which the settlers themselves “vigorously enjoined.”[xxvi]Agreements were first composed by the miners themselves, though they were liable to disintegrate due to their lack of clarity. Frequently, these agreements stopped short of delegating exclusive rights to an individual miner for a given tract of land, and there was no provision as to how the gold extracted from the claim would be shared, if at all.[xxvii]

Miners and prospectors staked their claims in rudimentary fashion at first, by demarcating them with trenches or wooden stakes. The question as to what determined a legitimate claim soon arose, as prospectors began laying claim to vast and multiple swaths of land, then abandoning them until a buyer could be found. In the years following the establishment of a territorial government in California, state legislators attempted to rationalize the system of mining claims. Among the first of these attempts was the Possessory Act of 1850, which facilitated the expropriation of large tracts of land for settlement, with the exception of “lands containing mines of any of the precious metals.”[xxviii]Another, the “Act for the better regulation of the mines and the government of foreign miners,” was passed that same year, but beyond levying a small tax on foreign miners, it scarcely impacted the business.[xxix]

Other problems involving land claims arose as the new judicial system attempted to grapple with the legal precedence that mining would be accorded. One important case involved a land dispute between the military leader and first Republican presidential candidate John Charles Frémont, who in the 1840s had obtained license to two tracts that turned out to contain large quantities of gold.[xxx] In the cases of both tracts, mining companies filed lawsuits claiming rights to mine the land. The miners argued, correctly, that the legal precedents in common law and Hispanic law treated minerals as sovereign property.[xxxi] They built a case by arguing that mineral claims should therefore treat Frémont’s property as though it were public land, and therefore open to resource development. In both cases, the courts were ultimately swayed by the exhortation of Frémont’s attorney that such a compromising of “the security of property” would send civilization back to “the barbarian life of the wilderness.”[xxxii] These rulings – both made in the 1850s – marked an important and decisive break from the regimes of Hispanic and common law, and marked an early move in American mining laws toward a regime of exclusive private mineral rights.[xxxiii] Frémont proceeded to profit significantly from his land holdings by leasing tracts out to outside miners. Historian Peter Reich points out that by and large the justices in these cases were perfectly aware that legal precedent would have mandated some public stake in subsurface minerals, but that they “deliberately distorted it to justify mineral monopolization.”[xxxiv]

THE COMSTOCK LODE

Frémont’s case was a unique one, given that he had obtained the land privately during the war, with no knowledge of its mineral wealth. There remained virtually no coherent means for staking a mining claim. Technically, from 1848 until the passage of the first federal mining act in 1866, the Californian miners were squatting on public land.[xxxv] No attempts were made in Washington during the Civil War period to address the legal questions of mineral rights, and by the time the 1866 legislation was being debated on the floor of Congress, the mining industry had undergone significant change. It had moved from the small-scale informal workers cooperatives, whereby men were collecting whatever fragments of gold they could from their ten-foot-squared tracts,[xxxvi] to a professionalized, capital-intensive industrial model that focused increasingly on large-scale lode mining.

The Comstock Lode in western Nevada epitomized and in many ways defined this shift. Upon its discovery by a small ragtag group of wildcatters in the late 1850s, Mount Davidson became the site of a relatively superficial silver mining operation. In the subsequent years, however, the lode of silver and gold was discovered to be the largest North America has ever known.[xxxvii] The nearby settlements of Carson City, Gold Hill, and Virginia City exploded over night, becoming home to tens of thousands of settlers by 1870.[xxxviii]

The output of bullion more than doubled every year from 1860 to 1863, and in 1864 it churned out an unprecedented $16 million dollars in precious metal.[xxxix] Over the course of the mine’s lifespan, it yielded approximately $400 million in gold and silver.[xl] Writes historian Rodman Wilson Paul,

No California mining venture of the 1850s had demanded such a huge investment, none had been conducted on such a flamboyantly large scale, none had required such a rapid advance in the field of engineering. Nor had California mining… led to the factorylike industrial relations that so coon characterized Virginia City and Gold Hill.[xli]

Similar problems surrounding property rights emerged, but the nascent Nevada Territorial Government, established in March 1861, was quicker to respond than its Californian predecessor.[xlii] Property rights had indeed been managed on an ad-hoc basis among miners for the few years prior, but the semi-formal consolidation of land claims provided by the territorial authority established a property rights regime that was coherent enough to facilitate the large-scale corporate investment that would ultimately characterize the boom there. It is worth noting, however, that significant disputes continued even after 1861. Over the course of the subsequent five years, mining companies spent a total of approximately $4.5 million on litigation.

The influence of big capital started to make itself felt at Comstock as soon as the breadth of the lode became clear to the miners there. At two and a half miles long, 175 feet in depth, up to 3000 feet underground, and 45 to 65 feet in width, mining the lode demanded significant investment and innovative engineering.[xliii] Cave-ins were frequent until the miners began to apply the square set timbering method, which allowed them to open underground cavities of virtually any size, and which Paul identifies as “easily the most important technical development” of the early mining practices at the Comstock.[xliv] Similarly, new methods in drilling were required, and by the mid 1860s the miners were using such sophisticated machinery as jackhammers and diamond-studded drills – both of which had initially been developed in France – as well as nitroglygerine and dynamite.[xlv] Early on, a stamp mill using pan amalgamation – a process used to extract silver from ore using mercury – was erected in Virginia City, and by 1870 a railroads had been constructed to transport the bullion, workers and machinery to and from Mount Davidson. [xlvi] Most impressive of all was the scope of the diggings by the end of the bonanza: the total length of the shafts and galleries was close to 190 miles in length.[xlvii]

Problems of logistics continued to arise as the shafts delved deeper into the mountain range. The most excruciating as far as the workers were concerned was the heat. At a depth of 3000 feet, the miners encountered streams of water at 170° Farenheit. Conditions were too hot for the men to work for more than an hour at a time, and large quantities of ice water had to be piped into the shafts to allow them to cool off.[xlviii] Worse was the flooding that occurred at that depth, and a significant amount of capital had to be put toward the construction of pumping mechanisms.[xlix]

The very nature of the Comstock meant that few but the most well-financed of corporations were equipped to bear the costs and risks of extraction. The most important shift the western mining industry saw in the 1860s was therefore the emergence of a corporate superstructure that began to resemble its 20^th and 21^st century  counterparts. Litigation, high-tech engineering, and the garnering of funds from capital markets in London, New York City, and especially San Francisco were all demonstrative of this trend.

Reflecting the emergent corporate hierarchy of the industry as it moved away from the informal cooperative model was the top-heavy distribution of wealth at Comstock. By the end of 1861, 86 mining corporations with a combined capital stock of over $61 million existed in San Franciso, and many of them had stakes in the Comstock.[l] By the end of the bonanza, however, 95 percent of the mineral wealth had been extracted from the lode by only 22 companies.[li] One contemporary noted that the Comstock “made enormous fortunes for half a dozen men.”[lii] The enormous wealth of the handful of bonanza kings – many of whom began as humble forty-niners – made a palpable impression on the culture of the towns. Writes Paul, “No one could fail to be aware of the new-rich millionaires who built houses that looked like grotesque wedding cakes and sent their wives to Europe with unlimited bank accounts to purchase titled sons-in-law.”[liii]

THE 1866 MINING ACT

As stated previously, the development of mining laws continually mirrored existing practices on the frontier. Even before the consolidation of federal mining laws in 1866, a pattern of increasing corporate favouritism could be seen developing within the legal practices of the new states in the southwest as corporations began to actively lobby their regional governments. Beginning in the 1850s, writes Carl J. Mayer, “mining corporations rapidly replaced individual miners as the primary developers of the nation’s resources. The new mining corporations obtained passage of favorable, uniform state mining statutes to supplant the often hostile rules of the local miners.”[liv] Across California, mining districts moved away from the practice of claim-staking by means of ongoing labour and occupancy and toward one of formalized land title, which edged out independent placer miners.[lv] New regulations implemented at the state level in Arizona, Colorado and Nevada were even more corporate-friendly. Through laws such as Nevada’s “Act Concerning the Location and Possession of Mining Claims,” (1866) or the “Act Empowering Corporations and Associations for Mining to Sue Individual Members,” (1862) restrictions on the allowable size of mining tracts were lifted and the legal rights of the corporations tremendously expanded.[lvi]  Perhaps the most important of the early legal innovations was the apex law, first proposed by the Nevada City-based lawyer, William Morris Stewart in 1852.[lvii] The principle of the apex rule was that the possessor of the tract in which the peak of a vein can be found has the “extralateral right” to follow the lode’s “dips, spurs, angles, variations, veins, cross ledges, strings and feeders” for as long as they continue – even onto adjacent property.[lviii]

Stewart’s career is in many ways indicative of the predominant trends in 19^th century southwestern American judicature. Enterprise forged ahead of government, and as laws were being established and formalized, few were as powerful as corporate affiliates who were well-versed in the law. A New York-born graduate of Yale, Stewart was the most influential and important corporate litigator at the Comstock Lode in the early 1860s. Upon Nevada’s acceptance into the Union in 1864, he moved to Washington D.C. to become one of the state’s first Senators and a principal author of the 1866 Mining Law.[lix]

The 1866 law, (officially, An act granting the right of way to ditch and canal owners over the public lands,) was the first and most important comprehensive federal legislation to deal with the legal questions of mining. Stewart and three other representatives (one from Colorado and two from California) had won approval to introduce a bill on mining policy in 1864; by the summer of 1866 it had been cobbled together in committee and was presented to Congress.[lx]

The bill’s contents were geared toward the development of further lode claims, and gave tremendous jurisdiction to regional governments. It consecrated the right of miners and prospectors to stake a claim on federal lands, but gave tremendous jurisdiction to regional governments in the handling of those claims. The opening section of the legislation read:

That the mineral lands of the public domain…are hereby free and open to exploration and occupation by all citizens of the United States…subject to such regulations as may be prescribed by law, and subject also to the local custom 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.[lxi]

Restraints were few. Patenting a claim with the local land office required nothing more than a diagram of the site. The only up front cost to the miner was (and remains) $5 per acre for lodes, and $2.50 for placers.[lxii] A claim could be up to 200 feet in width as it followed the vein, and could not total more than 3,000 squared feet. Most importantly, it “fixed the apex rule on federal paper.”[lxiii] The minerals themselves would not be taxed unless extracted by non-U.S. citizens.[lxiv]

The Congressional debate rapidly demonstrated the ideological differences between the southwesterners and the older eastern and Midwestern establishment. The bill’s most vocal opponent was a Whig Congressman from Indiana named George Washington Julian. As the chairman of the Committee on Public Lands, Julian had attempted to draft an alternative legislation that would have raised revenues for the treasury, which had incurred significant losses during the war. Ultimately, however, the vociferous opposition by western members of the Committee, Stewart included, killed the draft bill.[lxv] Instead, the drafting of the law was wrested under the control of the Committee on Mines and Mining, which Stewart himself had hastily established after joining the Senate.[lxvi]

“This bill is an outrage,” pronounced Julian upon the bill’s first reading, “a wholesale abandoning by the nation of its authority and duty respecting its vast mineral domain.”[lxvii] In particular, Julian was infuriated by the notion that claims would continue to be “local custom or rules of miners”[lxviii] – a clause that he felt would leave mining in regulatory disarray and was tantamount to an abdication of the country’s own national wealth at a time when it needed it most.

When Nevada Congressman Delos Ashley – probably the most vocal advocate of the bill as it passed through the House – noted that “The Representatives from the States interested in this measure are unanimous in favor of its passage,”[lxix] Julian rebutted, “Why, undoubtedly it is acceptable to them. I should deem it marvelous if they did not accept a free gift of the gold and silver to be found interspersed over a million square miles of the richest mineral lands on the globe, at the hands of the United States, which is thus to renounce and abdicate in their behalf its ownership of the whole of it.”[lxx]

Ashley and Stewart were both instrumental in propagating a rhetoric of western entitlement, which the House and Senate both evidently found sufficiently persuasive. Ashley’s comment amidst the debate provides a case in point: “As to the peculiar mode of disposing of the public lands to miners in our section of the country, the members from that region are better entitled to speak than men who have never dug the soil, as have most of the Representatives from the Pacific coast.”[lxxi] Thus the mining bill in turn promoted the time-honoured and secessionist discourse of states rights.

The bill ultimately passed on July 23 with 73 voting in favour, 37 against, and 71 abstentions.[lxxii] It set the tone for its successor in 1872, which remains in effect today and did not significantly alter the initial bill. Some of the regulations for claim staking were consolidated as the bill was finessed in committee, and when it came back to the floor, Mayer notes, it “provoked little debate.”[lxxiii] Representative Aaron Sargent of Massachusetts stated that the new bill “does not change in the slightest degree the policy of Government in the disposition of the mineral lands,” but “simply oils the machinery a little.”[lxxiv] Most importantly, the apex rule and the jurisdiction of state and local authorities remained on the books.

1866 thus marks an important turning point in the history of American mining law. Although mining law was never consolidated until that point, the bill’s few precedents had mandated a very different approach. Though none were very overbearing in their regulatory restrictions, they do appear to have been a far cry from the open-entry policies that emerged from the California gold rush. Under the 1785 General Land Act, for instance, Congress reserved a full third of any gold, silver or copper extracted from the ground.[lxxv] Under other acts that developed in the early 19^th century in response to the growth of lead mining in Indiana, Congress leased the land out to miners rather than charging them a negligible fee for an indefinite patent.[lxxvi]

In large part, the laissez-faire attitude of the 1866 law was a response to the seemingly infinite quantity of land that Washington had just acquired, as rapid settlement and economic growth became a central priority of the government. This is perhaps the most important systemic factor to influence the new mining laws. The ideology motivating the bill was not unanimously accepted in U.S. government, but the western representatives – new to federal politics though they were – mounted such an aggressive campaign to push it through that their opponents scarcely had a chance.

A time has worn on, the act has come under increasing criticism, and several legal and environmental scholars have made the case for its repeal. Gordon Morris Bakken notes that even the 1848 gold rush – which was conducted with extremely rudimentary tools and superficial extraction methods – had a devastating environmental impact. “What we did not watch,” he writes, “was the turbidity of the stream increase, the clear water growing dark with debris, and the trout chocking to death down the creek and washing ashore.”[lxxvii] Yet it was difficult enough to force the frontiersmen into respect for the rule of law, and it would be several decades before environmental regulation even entered the conversation on resource extraction in the U.S.

The Mining Law of 1872 should be understood as a result of the varying legal and cultural attitudes 19^th century Americans applied to the frontier. While these factors were no doubt systemic in nature, it would also be a fallacy to view the law through the lens of historical determinism. Rather, the open-entry mining system should be seen as a historically specific phenomenon, developed to encourage white settlement of the west, and occurring within a context of a devastating annihilation of the area’s indigenous population. The historical specificity of the context from which it emerged should be seen as intrinsically related to the resistance the law has faced since, as its stipulations – many of which have since been amended – continue to permit mining companies to operate in or near populated and environmentally sensitive federal territories.[lxxviii]

REFERENCES

[i] John Umbeck, “The California Gold Rush: A Study of Emerging Property Rights,” Explorations in Economic History 14 (1977): 203