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Show LEGAL ASPECTS OF MINERAL RESOURCES EXPLOITATION 717 at the advocates of sale of the mineral lands.123 Stewart's greatest accomplishment in the 38th Congress came when the Senate as a Committee of the Whole was considering a bill to create Federal district and circuit courts in Nevada. Stewart was wary of an earlier Supreme Court decision which held that the Court had no appellate jurisdiction to review a state supreme court decision which involved a contest between private claimants over land owned in fact by the United States.124 With the enthusiastic support of both Stewart and Conness a statute applicable to all Federal courts was adopted. Under the act, no possessory action for the recovery of any mining "title" would be affected by the fact that the land was owned by the United States, and "each case shall be adjudged upon the law of Possession."125 This seems to have been the first Federal statute expressly recognizing, to a limited extent, an implied license to miners to go upon Federal land to extract minerals. Two other special acts applicable to Nevada were enacted in 1866. The first confirmed possessory rights to mining claims acquired in compliance with the rules and regulations adopted by miners in the Pah-Rangat and other mining districts.126 The second granted a title in fee to designated mineral land to A. Sutro for the construction of a drainage and exploration tunnel to the Comstock Lode.127 These confirmatory acts were adopted only shortly before the 1866 legislation. During 1865 and 1866 the Congressional Globe is replete with petitions and memorials by private citizens (usually miners' groups), as well as state legislatures, imploring Congress not to take any action 122 Cong. Globe, 38th Cong., 2d Sess., 1367-68. 123 Id. at 886. 124 Lownsdale v. Parrish, 21 How (U.S.) 290 (1859) . 125 13 Stat. 440 (1865) . 128 14 Stat. 43 (1866) . 127 14 Stat. 242 (1866). which would involve the sale of the mineral lands at public auction (the Julian plan) ,128 Senator John Sherman of Ohio, having undergone a change of philosophy since he sponsored a plan similar to Julian's, introduced in April 1866 a bill, S. 257, to regulate the occupation of, and to extend the right of preemption to, mining land.129 After referral to the Committee on Mines and Mining, it was reported back in May, accompanied by an amendment which was explained in a written report. The amended bill was supported by the Treasury as well as the Interior Department. Debate began on June 18. Briefly, the bill opened the mineral lands to free exploitation with the right to secure, for a nominal amount, title in fee simple to a lode mining claim. Senator Stewart, the principal draftsman, defended the bill on economic grounds.130 His logic, which escapes one from time to time, went something like this. By permitting a miner to patent a lode claim, the act will give security to mining titles. This, in turn, will encourage investment in mining property with a resulting increase in the production of gold. The principal asset of the United States which backs up its debts is land. Increased production of gold will raise the value of land, and, presto, the national debt will be proportionately reduced. Whatever one may think of Stewart's economic theories, it is clear that his arguments were most effective in convincing the Senate to pass the bill. Senator Williams of Oregon worried about the provisions in S. 257 for obtaining patents in fee to mining claims, although he generally favored free and open exploration and a preservation of the existing customary law of the miners. When the Senator became involved in technical 1J8£.g., Cong. Globe, 39th Cong., 1st Sess., 360, 494, 518, 978, 1036, 1390,1724 (1866) . 129 Id. at 1844. 130 Id. at 3225-29. |