California Romantic and Resourceful / A plea for the Collection, Preservation and Diffusion of Information Relating to Pacific Coast History

by John Francis Davis

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 precious metal mining of the Far West have, for the most part, swarmed out of the California hive, California ideas have not only been everywhere dominant over the field of the industry, but have stemmed the tide of Federal land policy, and given us a statute-book with English common law in force over half the land and California common law ruling in the other."

I have spoken of these two incidents, the one of the peaceable civilization of the missions, and the other of the strenuous life issuing in the adoption of the mining law, as illustrative incidents of the variety of California history. Let me briefly speak of a third one, California's method of getting into the Union. But two other states at the present time celebrate the anniversary of their admission into the Union; the reason for California's celebration of that anniversary is well founded. The delay incident to the admission of California into the Union as a State was precipitated by the tense struggle then raging in Congress between the North and the South. The admission of Wisconsin had made a tie, fifteen free states and fifteen slave states. The destiny of the nation hung upon the result of that issue, and when California finally entered the Union, it came in as the sixteenth free State, forever destroyed the equilibrium between the North and the South, and made the Civil War practically inevitable. The debate was a battle of giants. Webster, Clay and Calhoun all took part in it. Calhoun had arisen from his death-bed to fight the admission of California, and, upon reaching his seat in the Senate, found himself so overcome with weakness and pain that he had Mason of Virginia read the speech he had prepared in writing. Webster atoned for his hostility to the Pacific Coast before the Mexican War by answering Calhoun. "I do not hesitate to avow in the presence of the living God that if you seek to drive us from California . . . I am for disunion," declared Robert Toombs, of Georgia, to an applauding House. "The unity of our empire hangs upon the decision of this day," answered Seward in the Senate. National history was being made with a vengeance, and California was the theme. The contest was an inspiring one, and a reading of the Congressional Record covering the period makes a Californian's blood tingle with the intensity of it all[[6]].

The struggle had been so prolonged, however, that the people upon this coast, far removed from the scene of it, and feeling more than all else that they were entitled to be protected by a system of laws, had grown impatient. They had finally proceeded in a characteristically Californian way. They had met in legislative assembly and proclaimed: "It is the duty of the Government of the United States to give us laws; and when that duty is not performed, one of the clearest rights we have left is to govern ourselves."

The first provisional government meeting was held in the pueblo of San Jose, December 11, 1848, and unanimously recommended that a general convention be held at the pueblo of San Jose on the second Monday of January following. At San Francisco a similar provisional meeting was held, though the date of the proposed convention was fixed for the first Monday in March, 1849, and afterward changed to the first Monday in August.

The various assemblies which had placed other conditions and fixed other dates and places for holding the same gave way, and a general election was finally held under the provisions of a proclamation issued by General Bennet Riley, the United States General commanding, a proclamation for the issuance of which there was no legislative warrant whatever. While the Legislative Assembly of San Francisco recognized his military authority, in which capacity he was not formidable, it did not recognize his civil power. General Riley, however, with that rare diplomacy which seems to have attached to all Federal military people when acting on the Pacific Coast, realizing that any organized government that proceeded from an orderly concourse of the people was preferable to the exasperating condition in which the community was left to face its increasing problem under Congressional inaction, himself issued the proclamation for a general convention, which is itself a gem. The delegates met in Monterey, at Colton Hall, on the 1st of September, and organized on the 3d of September, 1849.