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Show 712 HISTORY OF PUBLIC LAND LAW DEVELOPMENT enact interim legislation were largely unsuccessful.77 Some of the California legislation dealing with the gold mines is well known. The famous "Possessory Act" of 1850 and 1852 provided that persons in possession of public lands for cultivation or grazing purposes were entitled to protection from interference with their possession.78 This was subject, however, to the proviso that if such lands contain mines of precious metals, miners were not precluded from working the mines. The "unusual circumstances" prevailing in the California gold fields were felt to be a sufficient basis for legalizing what would otherwise be a trespass. Certainly there was a strong feeling that a few individuals should not be permitted to monopolize mining land by preempting large tracts ostensibly for agricultural purposes.79 The California Legislature also recognized in 1851 the right of miners to establish their own rules in an amendment to the Civil Practice Act to the effect that in actions involving mining claims, courts should receive proof of the customs, usages, and regulations established in the mining camps unless they were in conflict with the laws of the state.80 The state assembly also heard much discussion of the foreign miners' taxes, and there was some agitation for other types of taxes on the mines.81 The Fremont Bill. Although both President Polk and President Taylor made general recommendations concerning the Cali- " Yale, Legal Titles to Mining Claims and Water Rights 84-86 (1867) . "California General Laws 1850-64 § 6790 (1868) . "Early California cases dealing with the application of the Possessory Act are discussed in 1 American Law of Mining 29-31 (Martz ed. 1960). 80 California General Laws 1850-64 § 5552 (1868). ¦ See generally Ellison, The Mineral Land Question in California 1848-1866, 30 Southwestern Hist. Q. 34 (1926), reprinted in The Public Lands 71, 77-82 (Carstensen ed. 1963) . fornia mineral lands,82 the first real debate in Congress was touched off by a bill introduced by Senator John Fremont of California on September 10, 1850.8* Rejecting any notion that the mineral lands should be a source of revenue to the Federal government, the Senator suggested that Federal agents be authorized to issue permits to miners (who were citizens) to work lots either by hand (30 square feet) or by machinery (210 square feet). Relatively small fees were to be charged for the permits, and no person could have two permits at the same time. Debate centered around the revenue issue, the requirement of citizenship to qualify for a permit, and the administrative machinery which would be required to supervise the gold fields. Senator Thomas Ewing of Ohio, a former Secretary of the Interior, favored a plan under which substantial profits would accrue to the government and proposed an amendment requiring miners to sell their gold to the government at the rate of exchange currently prevailing in the mining region.84 Since the rate elsewhere was $2 per ounce higher, the government stood to make a profit. Senator Benton of Missouri, erstwhile foe of leasing of the lead mines, suggested that this would invite corruption and establish an expensive and unpopular bureaucratic system.85 This rather vague objection defeated the amendment.8" The debate switched to citizenship as a basis for eligibility for a permit. The discussion was not illuminating. Senator Se-ward of New York felt that any person expressing an intention to become a citizen should in fact be eligible for a permit.87 Undoubtedly aware of the California legis- m Cong. Globe, 30th Cong., 2d Sess., App. 6 (1848) (President Polk) ; Con(.. Globe, 31st Cong., 1st Sess., App. 3 (1849) (President Taylor) . mCong. Globe, 31st Cong., 1st Sess., 1793 (1850) . */d. at App. 1363. *Id. at 1364. 84 Id. at 1365. |