JUDGE FIELD AS A LEGISLATOR.

The Legislation secured by him for the Protection of Miners in their Mining Claims.

From the San José DAILY HERALD (California) of November 18, 1879.

"The long judicial service of our distinguished fellowcitizen, embracing nearly six years in the Supreme Court of the State, and more than sixteen in the Supreme Court of the United States, has been marked by most able opinions on many great leading questions. This fact has very naturally connected his name in the public mind mainly with those questions, and few are aware of other, and even more important services, rendered our State by him, as a legislator, in the early days of the State's history. He was a member of the second legislature which was chosen in the Fall of 1850, and represented the then county of Yuba, which at that time included also what are now Sierra and Nevada counties.

"The first legislature had enacted a general system of laws, such as are indispensable to the government of any community. It had done nothing, however, toward the protection or regulation of that great interest which had gathered together from every State in the Union, and from every nation of the world, the restless and sometimes turbulent population of the California of thirty years ago. The

gold seekers were left to jostle each other, and to settle their disputes as best they might. The ownership of the mines was held by some to be in the United States, and by others to be in the State, while all were alike extremely jealous of any assertion of power over them by the government of either. It was evident that the miners could not long be left to fight among themselves over questions of priority or extent of claims, while it was equally evident that legislation on the subject must be in accord with generally accepted opinion or it would be a dead letter. The situation was a grave one, and it demanded statesmanlike treatment. To do nothing was to leave the peace of the State at the mercy of those whose fierce thirst for gold might outrun their respect for fair dealing. Honest misunderstandings as to facts were oftenest settled by immediate appeal to brute force. The world has probably never seen a similar spectacle that of extensive gold-fields suddenly peopled by masses of men from all States and countries, restrained by no law, and not agreed as to whence the laws ought to emanate by which they would consent to be bound. As in all other emergencies, the one man was there to bring forward the saving measure. Stephen J. Field solved the difficult problem. He saw that the rude society around him would shatter to fragments any system in which its own strong will and native common sense were not taken into account. The miners had, in each camp, held meetings, and enacted rules and regulations by which they agreed to be governed in that place. These had reference to the extent of each claim in the given locality, the acts necessary to constitute location or appropriation of the same, and the amount of work which should entitle the claimant to continued possession. The State could not safely attempt to substitute for these various rules any of a more general and uniform character. This fact was the basis of the measure brought forward by Judge Field in the Legislature of 1851, and by him urged to final success. He did not leave the miners to be a law unto themselves, but held

them to the laws they had made for themselves. His plan was simple and at the same time thorough and sound. It was that the rules made by the miners should be enforced by the State. What they had declared to be fair play should be the law of the land, and should govern the courts in their decisions in mining disputes. Here is the language:

"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 claims, 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."

"The principle contained in the fifty-two words above quoted was adopted in other mining regions of the country, and finally by the Congress of the United States. The author of it has seen its wisdom vindicated by more than twenty-eight years of experience, and for it the people of the State and of Nevada should ever hold him in grateful remembrance. When they think of him only as a judge deciding upon the administration of laws framed by others, let them be reminded that in a single sentence he laid the foundation of our mining system so firmly that it has not been, and cannot be, disturbed."

At the time the above legislation was had actions for mining claims, the mines being in the lands of the United States, were usually brought upon an alleged forcible or unlawful detainer. The rule adopted by the enactment in question, originally applicable only in actions before local magistrates, was soon extended to actions for mining claims in all courts, and, as stated above, now prevails in all the mining regions of the country.

Many years afterwards Mr. Field, in giving the opinion of the Supreme Court of the United States in an import

ant case before it, spoke of the usages and regulations of miners, to which this legislation gave the force of law, as follows:

"The discovery of gold in California was followed, as is well known, by an immense immigration into the State, which increased its population within three or four years from a few thousand to several hundred thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed, and not open, by law, to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nevada Mountains. Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches, and cañons, and probing the earth in all directions for the precious metals. Wherever they went they carried with them that love of order and system and of fair dealing which are the prominent characteristics of our people. In every district which they occupied they framed certain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines, distinct provisions being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized discovery followed by appropriation as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining, upon the public lands in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines could not be worked without water. Without water the gold would remain forever buried in the earth or rock. To carry water to mining localities, when they were not on the banks of a stream or lake, became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropriator of water to be conveyed to such localities for mining or other beneficial purposes, was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the condition of miners in the mountains. The waters of rivers and lakes were consequently carried great distances in ditches and flumes, constructed with vast labor and enormous expenditures of money, along the sides of mountains and through cañons and

ravines to supply communities engaged in mining, as well as for agriculturists and ordinary consumption. Numerous regulations were adopted, or assumed to exist from their obvious justness, for the security of these ditches and flumes, and the protection of rights to water, not only between different appropriators, but between them and the holders of mining claims. These regulations and customs were appealed to in controversies in the State courts, and received their sanction; and properties to the value of many millions rested upon them. For eighteen years, from 1848 to 1866, the regulations and customs of miners, as enforced and moulded by the courts, and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands. Until 1866 no legislation was had looking to a sale of the mineral lands. The policy of the country had previously been, as shown by the legislation of Congress, to exempt such lands from sale. In that year the act, the ninth section of which we have quoted, was passed.* In the first section it declared that the mineral lands of the United States were free and open to exploration and occupation by citizens of the United States, and those who had declared their intention to become citizens, subject to such regulations as might be prescribed by law and the local customs or rules of miners in the several mining districts, so far as the same were not in conflict with the laws of the United States. In other sections it provided for acquiring the title of the United States to claims in veins or lodes of quartz bearing gold, silver, cinnabar, or copper, the possessory right to which had been previously acquired under the customs and rules of miners. In no provision of the act was any intention manifested to interfere with the possessory rights previously acquired, or which might be afterwards acquired; the intention expressed was to secure them by a patent from the government. The Senator of Nevada,† the author of the act, in advocating its passage in the Senate, spoke in high praise of the regulations and customs of miners, and portrayed in glowing language the wonderful results that had followed the system of free mining which had prevailed with the tacit consent of the government. The Legislature of California, he said, had wisely declared that the rules and regulations of miners should be received in evidence in all controversies respecting mining claims, and when not in conflict with the constitution or laws of the State or of the United States, should govern their determination; and a series of wise judicial decisions had moulded these regulations and customs into 'a comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining purposes.' The miner's law, he added, was a part of the miner's nature. He had made it, and he trusted it and obeyed it. He had given the honest

*The act of July 26, 1866, "granting the right of way to ditch and canal owners over the public lands, and for other purposes."—(14 U. S. Statutes, 251.)

+ Hon. Wm. M. Stewart.