One of the topics I’ve had to research for my work-in-progress is the mining laws of California at the time of the Gold Rush. Essentially, there were no laws. In January 1848, when gold was discovered, California was under the control of the U.S. Army, which had taken California from Mexico in the Mexican American War.
There were serious questions as to whether Mexican land grants were valid. And in the areas where gold was found, there hadn’t been a lot of Mexican land grants. In fact, Johann Sutter, who was building the mill where gold was first found, sent representatives off to Monterey to confirm his land rights.
The Native Americans did not hold land individually, and the whites who came to seek gold thought of it as open territory. It was each man for himself.
I was surprised when my research indicated how small the land claims were. Many were only ten feet by ten feet. The prospectors hunted for gold by panning in creeks and by digging with knives and shovels on dry land.
When they could no longer find gold by panning and digging, men banded together to use more effective means of processing the dirt, like rockers and long-toms, which required more space.
Despite the violence that old Western movies show us, the first miners typically resolved their disputes themselves, which is how the practice of staking claims developed. Staked claims were generally respected, at least as long as men stayed on their claims.
Over time, each area where prospectors congregated because of a gold find figured out ways to police themselves. They developed local codes that they enforced to keep each other and newcomers in line.
First, let me explain to you the ‘claiming’ system. As there are no State laws upon the subject, each mining community is permitted to make its own. Here, they have decided that no man may ‘claim’ an area of more than forty foot square. This he ’stakes off’ and puts a notice upon it….If he does not choose to ‘work it’ immediately, he is obliged to renew the notice every ten days; for without this precaution, any other person has the right to ‘jump it’….There are many ways of evading the above law. For instance, an individual can ‘hold’ as many claims as he pleases if he keeps a man at work in each….The laborer…can jump the claim of the very man who employs him…[but] generally prefers to receive the six dollars per diem, of which he is sure…[rather than] running the risk of a claim not proving valuable….The labor of excavation is extremely difficult, on account of the immense rocks…[in] the soil. Of course, no man can work out a claim alone. For that reason…they congregate in companies of four or six, generally designating themselves by the name of the place from whence the majority of the members have emigrated; for example, the ‘Illinois,’ ‘Bunker Hill,’ ‘Bay State,’ etc., companies. In many places the surface soil, or ‘top dirt,’ ‘pays’ when worked in a ‘Long Tom.’
It wasn’t until the unruly Forty-Niners arrived and the gold fields became overrun that claim jumping became a real problem. Unscrupulous people who wanted to sell their claims, would “salt” them by scattering gold on the land.
When crimes were discovered, the miners meted out harsh and speedy justice. Small crimes were punished by flogging, more serious crimes—including robbery and murder—resulted in a quick hanging. Sometimes mobs lynched a man without bothering with a trial.
As an attorney, I loved reading law review articles about these early mining codes. Most people might find them dry, but they appealed to me, and gave me the level of detail I wanted to write my novel. Here are a couple of my favorites:
- McDowell, Andrea G. (2002), “From Commons to Claims: Property Rights in the California Gold Rush,” Yale Journal of Law & the Humanities, Vol. 14: Iss. 1, Article 1.
- Clay, Karen, and Wright, Gavin, “Property rights during the California gold rush, Explorations in Economic History, Vol. 42, pp. 155–183 (2005).
Of course, the first-person accounts, such as the one from Dame Shirley quoted above, were also fun to find as I researched.
When have you been surprised to learn something about history?