MINERAL LANDS AND THE RIGHT OF PRE-EMPTION.
The lead and copper lands of the Northwest--The gold-bearing regions
of the Pacific, and their disposition--A legislative reminiscence
--Mining Act of 1866, and how it was passed--Its deplorable failure,
and its lesson--Report of the Land Commission--The Right of Pre-
emption, and the "Dred Scott decision" of the settlers.
The action of the Government in dealing with the mineral lands of
the United States forms one of the most curious chapters in the
history of legislation. It had its beginning in the famous
Congressional Ordinance of May 20, 1785, which reserved one third
part of all gold, silver, lead and copper mines to be sold or
otherwise disposed of as Congress might direct. From this time
till the discovery of gold in California in 1848, the legislation
of Congress respecting mineral lands related exclusively to those
containing the base or merely useful metals, and applied only to
the regions now embraced by the States of Michigan, Wisconsin,
Iowa, Illinois and Missouri. The policy of reserving mineral lands
from sale was obviously of feudal origin, and naturally led to the
leasing of such lands by the Government, which was inaugurated by
the Act of Congress of March 3, 1807. The Act of Congress of March
3, 1829, provided for the sale of the reserved lead mines and
contiguous lands in Missouri, on six months' notice, but mineral
lands elsewhere remained reserved, and continued to be leased by
the Government. This policy was thoroughly and perseveringly tried,
and proved utterly unprofitable and ruinous. President Polk, in
his message of December 2, 1845, declared that the income derived
from the leasing system for the years 1841, 1842, 1843 and 1844
was less than one fourth of its expense, and he recommended its
abolition, and that these lands be brought into market. The leasing
policy drew into the mining regions a population of vagrants, idlers
and gamblers, who resisted the payment of tax on the product of
the mines, and defied the agents of the Government. It excluded
sober and intelligent citizens, and hindered the establishment of
organized communities and the development of the mines. The miners
were violently opposed to the policy of sale, but the evils incident
to the leasing policy became so intolerable that the Government
was at length obliged to provide for the sale of the lands in fee,
which it did by Acts of Congress of July 11, 1846, and March 1 and
3, 1847. The tracts occupied and worked by the miners under their
leases possessed every variety of shape and boundary, but there
were no difficulties which were not readily adjusted under the
rectangular system of surveys and the regulations of the Land
Department. A new class of men at once took possession of these
regions as owners of the soil, brought their families with them,
laid the foundations of social order, expelled the semi-barbarians
who had secured a temporary occupancy, and thus, at once promoted
their own welfare, the prosperity of the country, and the financial
interests of the Government. Under this reformed policy the lead
and copper lands of the regions named were disposed of in fee.
But the gold-bearing regions covered by our Mexican acquisitions
created a new dispensation in mining, and invited the attention of
Congress to the consideration of a new and exceedingly important
question. How should these mineral lands be disposed of? They
covered an area of a million square miles, and their exploration
and development became a matter of the most vital moment, not only
in a financial point of view, but as a means of promoting the
settlement and tillage of the agricultural lands contiguous to the
mineral deposits. President Fillmore, in his message of December
2, 1849, recommended the sale of these lands in small parcels, and
Mr. Ewing, his Secretary of the Interior, urged upon Congress the
consideration of the subject, and recommended the policy of leasing
them; but no attention seems to have been given to these recommendations.
By Act of Congress of September 27, 1850, mineral lands in Oregon
were reserved from sale; and by Acts of March 3, 1853, and of July
22, 1854, they were reserved in California and New Mexico. This
was the extent of Congressional action. Early in the late war,
the Secretary of the Interior, Hon. Caleb B. Smith, referred to
the question, and the Commissioner of the General Land Office
afterward repeatedly recommended the policy of leasing, but Congress
took no notice of the subject. My interest in the question was
first awakened in the fall of 1864, in carefully overhauling our
land policy. Our mineral lands for more than sixteen years had
been open to all comers from whatever quarter of the globe, during
which time more than a thousand million dollars had been extracted,
from which not a dollar of revenue reached the National Treasury
save the comparatively trifling amount derived from the Internal
Revenue tax on bullion. This fact was so remarkable that it was
difficult to accept it as true. The Government had no policy
whatever in dealing with these immense repositories of national
wealth, and declined to have any; for a policy implies that something
is to be done, and points out the method of doing it. It had
prohibited the sale of mineral lands, and then come to a dead halt.
The Constitution expressly provides that Congress shall have power
"to make all needful rules and regulations respecting the territory
or other property belonging to the United States"; but Congress,
in reserving these lands from sale and taking no measures whatever
respecting their products, simply abandoned them, and, as the
trustee of the Nation, became as recreant as the father who abandons
his minor child.
The case was a very curious one, and the more I considered it, the
more astonished I became at the strange indifference of the
Government, and that no public man of any party had ever given the
subject the slightest attention. The Nation had been selling its
lands containing iron, copper and lead, and the policy of vesting
an absolute fee in individual proprietors had been accepted on
actual trial, and after the leasing policy had signally failed,
and I could see nothing in the distinction between the useful and
precious metals which required a different policy for the latter.
Some policy was absolutely demanded. The country, loaded down by
a great and continually increasing war debt, could not afford to
turn away from so tempting a source of revenue. To sleep over its
grand opportunity was as stupid as it was criminal. It was obvious
that if the Government continued to reserve these lands from sale,
some form of tax or royalty on their products must be resorted to
as a measure of financial policy; but this would have involved the
same political anomaly as the policy of leasing, and the same
failure. In principle it was the same. To retain the fee of the
lands in the Government and impose a rent upon their occupiers,
would make the Government a great landlord, and the miners its
tenants. Such a policy would not be American, but European. It
would not be Democratic, but Feudal. It would be to follow the
Governments of the Old World, which reserve their mineral lands
for the Crown, because they are esteemed too precious for the
people. It was at war with our theory of Democracy, which has
respect chiefly to the individual, and seeks to strengthen the
Government by guarding his rights and promoting his well-being.
These considerations convinced me that the time had come to abandon
the non-action course of the Government, and adopt a policy in
harmony with our general legislation; and that the survey and sale
of these lands in fee was the best and only method of promoting
security of titles, permanent settlements, and thorough development.
As early as December, 1864, I therefore introduced a bill embodying
this policy, which was followed by a similar measure, early in the
Thirty-ninth Congress, accompanied by an elaborate report, arguing
the question pretty fully, and combating all the objections to the
principle and policy of sale. My views were commended by Secretary
McCullough, as they had been by Mr. Chase, while I was glad to find
them supported by intelligent men from California, who spoke from
actual observation and extensive experience in mining.
But although this measure fully protected all miners in the right
of exploration and discovery, and carefully guarded against any
interference with vested rights, the idea was in some way rapidly
and extensively propagated that it contemplated a sweeping confiscation
of all their claims, and the less informed among them became wild
with excitement. The politicians of California and Nevada, instead
of endeavoring to enlighten them and quiet this excitement, yielded
to it absolutely. They became as completely its instruments as
they have since been of the Anti-Mongolian feeling. They argued,
at first, that no Congressional legislation was necessary, and that
while the Government should retain the fee of these lands, the
miners should have the entire control of them under regulations
prescribed by themselves. This, it was believed, would placate
the miners and settle the question; but the introduction of the
measure referred to, and the agitation of the question, had made
some form of legislation inevitable, and the question now was to
determine what that legislation should be. Senators Conness of
California, and Stewart of Nevada, who were exceedingly hostile to
the bill I had introduced, and feared its passage, sought to avert
it by carrying through the Senate "a bill to regulate the occupation
of mineral lands and to extend the right of pre-emption thereto,"
which they hoped would satisfy their constituents and prevent
further legislation. They supported it as the next best thing to
total non-action by Congress. It provided for giving title to the
miners, but it did this by practically abdicating the jurisdiction
of the National Government over these lands, with its recognized
and well-settled machinery for determining all questions of title
and boundary, and handing them over to "the local custom or rules
of the miners." These "local rules" were to govern the miner in
the location, extension and boundary of his claim, the manner of
developing it, and the survey also, which was not to be executed
with any reference to base lines as in the case of other public
lands, but in utter disregard of the same. The Surveyor General
was to make a plat or diagram of the claim, and transmit it to the
Commissioner of the General Land Office, who, as the mere agent
and clerk of the miner, with no judicial authority whatever, was
required to issue the patent. In case of any conflict between
claimants it was to be determined by the "local courts," without
any right of appeal to the local land offices, the General Land
Office, or to the Federal courts. The Government was thus required
to part with its lands by proceedings executed by officials wholly
outside of its jurisdiction, and irresponsible to its authority.
The act not only abolished our rectangular system of surveys, but
still further insulted the principles of mathematics and the dictates
of common sense by providing that the claimant should have the
right to follow his vein or lode, "with its dips, angles and
variations to any depth, although it may enter the land adjoining,
which land adjoining shall be sold subject to this condition"; a
right unknown to the mining codes of England, France or Prussia,
and not sanctioned by those of Spain or Mexico. Subject to this
novel principle the crudely extemporized rules of the miners were
to be recognized as law, and this system of instability and
uncertainty made the basis of title and the arbiter of all disputes,
instead of sweeping it away and ushering in a system of permanence
and peace through the well-appointed agency of the Land Department.
It was easy to see that this was an act to encourage litigation
and for the benefit of lawyers, and not to promote the real interest
of the miners or increase the product of the mines.
This was made perfectly clear at the time, by the report of a Senate
committee of the Legislature of Nevada. In speaking of the local
laws of the miners, it says, "There never was confusion worse
confounded. More than two hundred districts within the limit of
a single State, each with its self-approved code; these codes
differing not alone each from the other, but presenting numberless
instances of contradiction in themselves. The law of one point is
not the law of another five miles distant, and a little further on
will be a code which is the law of neither of the former, and so
on, _ad inifitum;_ with the further disturbing fact superadded,
that the written laws themselves may be overrun by some peculiar
custom which can be found nowhere recorded, and the proof of which
will vary with the volume of interested affidavits which may be
brought on either side to establish it. Again, in one district
the work to be done to hold a claim is nominal, in another exorbitant,
in another abolished, in another adjourned from year to year. A
stranger, seeking to ascertain the law, is surprised to learn that
there is no satisfactory public record to which he can refer; no
public officer to whom he may apply, who is under any bond or
obligation to furnish him information, or guarantee its authenticity.
Often, in the new districts, he finds there is not even the semblance
of a code, but a simple resolution adopting the code of some other
district, which may be a hundred miles distant. What guarantee
has he for the investment of either capital or labor under such a
system?" The report proceeds to show that these regulations can
have no permanency. "A miners' meeting," it declares, "adopts a
code; it stands apparently as the law. Some time after, on a few
days' notice, a corporal's guard assembles, and, on simple motion,
radically changes the whole system by which claims may be held in
a district. Before a man may traverse the State, the laws of a
district, which by examination and study he may have mastered, may
be swept away, and no longer stand as the laws which govern the
interest he may have acquired; and the change has been one which
by no reasonable diligence could he be expected to have knowledge
of." Of course these facts thus officially stated in the interest
of the miners of Nevada, were applicable to California, and all
the mining States and Territories, and they fitly and very forcibly
rebuked the attempt to enact the Senate bill.
When this bill reached the House it was properly referred to the
Committee on Public Lands, which then had under consideration the
bill I had reported providing for the survey and sale of mineral
lands through the regular machinery of the Land Department. The
House Committee subsequently reported it favorably, and could not
be persuaded by the delegations from California and Nevada to adopt
the Senate bill as a substitute. Senators Stewart and Conness,
finding their project thus baffled, and becoming impatient of delay
as the session neared its close, called up a House bill entitled
"An Act granting the right of way to ditch and canal owners over
the Public Lands in the States of California, Oregon and Nevada,"
and succeeded, by sharp practice, in carrying a motion to strike
out the whole of the bill except the enacting clause, and insert
the bill which the Senate had already enacted and was then before
the House Committee. This maneuver succeeded, and the bill, thus
enacted by the Senate a second time, and now under a false title,
was sent to the House, where it found its place on the Speaker's
table, and was lying in wait for the sudden and unlooked-for movement
which was to follow. The title was misleading, and thus enabled
Mr. Ashley of Nevada, to obtain the floor when it was reached, and
under the gag, which of course would cut off all amendment and
debate, he attempted to force through a measure revolutionizing
the whole land policy of the Government so far as relates to the
Western side of the continent, and surrendering the national
authority over its vast magazines of mineral wealth to the legalized
jargon and bewilderment I have depicted. I succeeded in preventing
a vote by carrying an adjournment, but the question came up the
next day, and the Senators referred to, with their allies in the
House, had used such marvelous industry in organizing and drilling
their forces, and the majority of the members knew so little about
the question involved, that I found the chances decidedly against
me. I was obliged, also, to encounter a prevailing but perfectly
unwarranted presumption that the representatives of the mining
States were the best judges of the question in dispute, while it
was foolishly regarded as a local one, with which the old States
had no concern. The clumsy and next to incomprehensible bill thus
became a law, and by legislative methods as indefensible as the
measure itself.
Such is the history of this remarkable experiment in legislation;
but it is an experiment no longer. Its character has been perfectly
established by time, and the logic of actual facts. It has been
extensively and thoroughly tried, and after repeated attempts to
amend it by supplementary legislation, its failure stands recorded
in the manifold evils it has wrought. The Land Commission, appointed
under the administration of President Hayes in pursuance of an Act
of Congress to classify the Public Lands and codify the laws relating
to their disposition, visited the mining States and Territories in
detail, and devoted ample time to the examination of witnesses and
experts in every important locality touching the policy and practical
operation of the laws in force relating to mineral lands. This
Commission condemned these laws on the strength of overwhelming
evidence, and recommended a thorough and radical reform, including
the reference of all disputed questions as to title and boundary
to the regular officials of the United States; the abolition of
the "local custom or rules of miners," with the "local courts"
provided for their adjudication; and the adoption of the United
States surveys as far as practicable, including the geodetical
principle of ownership in lieu of the policy of allowing the miner
to follow his vein, "with its dips, angles and variations under
the adjoining land of his neighbor," which policy is declared to
be the source of incalculable legislation. The Commission, in
short, urged the adoption of the principles of the Common Law and
the employment of the appropriate machinery of the Land Department,
as a substitute for the frontier regulations which Congress made
haste to nationalize in 1866. It declared that under these
regulations "title after title hangs on a local record which may
be defective, mutilated, stolen for blackmail, or destroyed to
accomplish fraud, and of which the grantor, the Government, has
neither knowledge nor control"; that in the evidence taken "it was
repeatedly shown that two or three prospectors, camped in the
wilderness, have organized a mining district, prescribed regulations
involving size of claims, mode of location and nature of record,
elected one of their number recorder, and that officer, on the back
of an envelope, or on the ace of spades grudgingly spared from his
pack, can make with the stump of a lead pencil an entry that the
Government recognizes as the inception of a title which may convey
millions of dollars; that even when the recorder is duly elected
he is not responsible to the United States, is neither bonded nor
under oath, may falsify or destroy his record, may vitiate the
title to millions of dollars, and snap his fingers in the face of
the Government; and that our present mining law might fitly be
entitled 'An Act to cause the Government to join, upon unknown
terms, with an unknown second party, to convey to a third party an
illusory title to an indefinite thing, and encourage the subsequent
robbery thereof.'"
These strong statements are made by a Government commission composed
of able and impartial men, who were guided in their patient search
after the truth by the evidence of "a cloud of witnesses," who
spoke from personal knowledge and experience. The character of
our mining laws is therefore not a matter of theory, but of
demonstrated fact. They scourge the mining States and Territories
with the unspeakable curse of uncertainty of land titles, as
everywhere attested by incurable litigation and strife. They thus
undermine the morals of the people, and pave the way for violence
and crime. They cripple a great national industry and source of
wealth, and insult the principles of American jurisprudence. And
the misfortune of this legislation is heightened by the probability
of its continuance; for it is not easy to uproot a body of laws
once accepted by a people, however mischievous in their character.
Custom, and the faculty of adaptation, have a very reconciling
influence upon communities as well as individuals. Moreover, men
absorbed in a feverish and hazardous industry, and stimulated by
the hope of sudden wealth, are not disposed to consider the advantages
of permanent ownership and security of title. Their business is
to make their locations according to local custom, and sell out to
the capitalists; while the men who feel the burden of litigation
and the evil of uncertain titles, are not the men who control public
opinion and influence the course of legislation. It may thus happen
that a system of laws initiated by itinerant miners solely for the
protection of their transient posessory interests, and carried
through Congress at their behest by parliamentary roguery, may be
permanently engrafted upon half the continent. If California had
been contiguous to the older States, and her mining operations had
only kept pace with the progress of settlements, or if her
representatives had been less ready to sacrifice the enduring
interests of their constituents for temporary and selfish ends,
the wretched travesty of law which now afflicts the States and
Territories of the West would have been unknown, and the same code
and forms of administration would have prevailed from the lakes to
the Pacific.
The lesson of this vital mistake is a pregnant one. The laws
regulating the ownership and disposition of landed property not
only affect the well-being but frequently the destiny of a people.
The system of primogeniture and entail adopted by the Southern
States of our Union favored the policy of great estates, and the
ruinous system of landlordism and slavery which finally laid waste
the fairest and most fertile section of the republic and threatened
its life; while the New England States, in adopting a different
system, laid the foundations of their prosperity in the soil itself,
and "took a bond of fate" for the welfare of unborn generations.
Their political institutions were the logical outcome of their laws
respecting landed property, which favored a great subdivision of
the land and great equality among the people, thus promoting
prosperous cultivation, compact communities, general education, a
healthy public opinion, democracy in managing the affairs of the
church, and that system of local self government which has since
prevailed over so many States. So intimate and vital are the
relations between a community and the soil it occupies that in the
nomenclature of politics the word "people" and "land" are convertible
terms; but no people can prosper under any system of land tenures
which tolerates a vexatious uncertainty of title, and thus prompts
every man to become the enemy of his neighbor in the scuffle for
his rights. Such a state of affairs is worse than pestilence or
famine; but the evil of uncertain titles puts on new and very
aggravated forms in our gold-bearing regions. The business of
mining naturally awakens the strongest passions. It sharpens the
faculties and dulls the conscience. It gives to cupidity its
keenest edge. Its prizes are often rich and suddenly gained, and
when they are sought through the forms of a law which compels a
man to choose between an expensive and hazardous litigation and
robbery, human nature is severely tried. No situation could well
be more deplorable than that which obliges a man to pay heavy black-
mail as the only means of saving his property from legal confiscation
by another; and the moral ravages of a code which allows this can
not be computed. It tempts civilized men to become savages and
savages to become devils. It is not a mistake merely, but a great
misfortune, that our laws touching so delicate and vital a question
as the ownership and transfer of mineral lands were not so framed
as to avert these frightful evils. As far as the past is concerned
they are without remedy, and there is no positive safeguard for
the future but in a return to the time-honored principles which
give to the owner of the surface all that may be found within his
lines, extended downward vertically, and refer all disputes to the
old-fashioned and familiar machinery of the General Land Office.
This system gave order and peace to the great lead and copper
regions of the Northwest, and it would bring with it the same
inestimable blessings to the harassed and sorely tried regions of
the Pacific slope.
About the same time the action of Congress supplied another example
of hasty and slip-shod legislation, which has been perhaps equally
prolific of evil. The State of California, soon after her admission,
had assumed the right to dispose of the public lands within her
borders according to her own peculiar wishes, and in disregard of
the authority of the United States. This led to such serious
conflicts and complications, that a remedy was sought in a bill to
quiet land titles in that State. It was a very questionable measure,
inasmuch as the parties claiming title under the State could only
be relieved by recognizing her illegal acts as valid, and at the
expense of claimants under the laws of the United States. It
necessarily involved the right of pre-emption, and this was distinctly
presented in connection with what was known as the Suscol Ranch in
that State. It contained about ninety thousand acres, and was
covered by an old Spanish grant which the Supreme Court of the
United States in the year 1862 had pronounced void, soon after
which numerous settlers went upon the land as pre-emptors, as they
had a right to do. Their claims as such, being disputed by parties
asserting title under the void grant, the General Land Office, on
the reference of the question to that department, decided in favor
of the pre-emptors, upon which the opposing parties procured the
submission of the question to the Attorney-General. That officer
gave his opinion to the effect that a settler under the pre-emption
laws acquires no vested interest in the land he occupies by virtue
of his settlement, and can acquire no such interest, till he has
taken _all_ the legal steps necessary to perfect an entrance in
the Land Office, being, in the meantime, a mere tenant-at-will,
who may be ejected by the Government at any moment in favor of
another party. In pursuance of this opinion scores of _bona fide_
settlers were driven from their pre-emptions, which the laws of
the United States had offered them, on certain prescribed conditions,
with which they were willing and anxious to comply, and their homes,
with the valuable improvements made upon them in good faith, were
handed over to speculators and monopolists. The proceeding was as
outrageous as the ruling which authorized it was surprising to the
whole country; and it naturally awakened uneasiness and alarm among
our pioneer settlers everywhere. It seemed to me very proper,
therefore, that in a bill to quiet land titles in California, these
troubles on this Ranch should be settled by a fitting amendment,
which should protect the rights of these pre-emptors against the
effect of the ruling referred to. The opinions of the Attorney-
General had completely overturned the whole policy of the Government
as popularly understood, and I simply proposed to restore it by a
proviso guarding the rights of _bona fide_ settlers who were claiming
title under the laws of the United States; but to my perfect
amazement I found the California delegation bitterly opposed to
this amendment. The reading of it threw them into a spasm of rage,
and showed that they were less anxious to quiet titles in their
State than to serve the monopolies and rings which had trampled on
the laws of the United States, and thus involved themselves in
trouble. The zeal and industry of the delegation in this opposition
could only be paralleled by their labors for the passage of their
mineral land bill; and the same appeals were made in both cases.
They said this was a "local measure," and that they understood the
interests of the Pacific coast better than men from the old States,
while they begged and button-holed members with a pertinacity very
rarely witnessed in any legislative body. They turned the business
of log-rolling to such account that the amendment was defeated by
a strong majority, while it proved the entering wedge to other and
greater outrages upon the rights of settlers which the country has
since witnessed, and was followed by a decision of the Supreme
Court of the United States, fully affirming the principle laid down
in the opinion of the Attorney General. This ruling, which has
been aptly styled "the Dred Scott decision of the American Pioneer,"
has been repeatedly re-affirmed, while the claim of pre-emption,
once universally regarded as a substantial right, has faded away
into a glamour or myth.