I’m continuing to read The Not So Wild, Wild West by Terry L. Anderson and Peter J. Hill. For those unfamiliar with the title it explores the development of property rights on the American Frontier (Old West). Chapter six discusses the development of property rights in California and Nevada during the gold rush.
During the start of the time period no formal government existed in the gold rich areas of California. The federal government laid claim to the territory but had no means of enforcing any laws it enacted leaving the people living in the area to develop their own system of law. Laws were primarily developed on a mining camp by mining camp basis. Each camp had its own system of laws related to claims, water rights, and law enforcement that were development organically. This system of private law worked exceedingly well as the mining camps had notably few instances of violence. What violence did exist was usually between two individuals with some kind of private grudge, not all out fights as often portrayed in Hollywood movies.
What I found most interesting regarding California was how the state gained control over the legal system. In 1851 California passed the Civil Practices Act. The Civil Practices Act basically established a state recognized judicial system over miners, one that recognized each camp’s system of laws. Justices were required to admit as evidence “the customs, usages, or regulations established or enforced at the bar or diggings embracing such claims, and such customs, usages, and regulations, when not in conflict with the Constitution and laws of this States, shall govern the decision of the action.” Effectively the state of California claimed jurisdiction over the camps but ruled based on each camp’s system of laws so long as they didn’t conflict with California’s laws or constitution.
Afterward the federal government got involved in the legal process. In 1865 the United States Supreme Court, in Sparrow v. Strong, ruled that local rules were sanctioned by the federal government. Then in 1866 the federal government passed legislation recognizing an individuals ability to claim public lands for mining through improvement and occupancy (homesteading).
Legislation is only effective if it has the support of popular opinion and is enforceable. If popular opinion opposes the legislation people will ignore it and if the legislation is unenforceable it’s meaningless by default. Considering the strongly independent nature of frontiersmen why would they have accepted either government meddling in their affairs? Simple, neither government was really meddling in the miners’ affairs. Both governments passeds legislation that basically codified each camp’s system of laws. Nothing really changed for the miners.
This is a common way for states to create precedence to obtain further control at a later time. A state will often begin by codifying a currently established custom or private agreement. Such actions are seldom met with protest by the public because nothing is changing, the state is simply saying, “Hey, we recognize the agreements you guys have come up with.” What’s dangerous is that these recognitions set a precedence, they are a legal beachhead. Once one of these legal beachheads is established it’s easy for a state to enact further restrictions by claiming the previous codification of already accepted customs as precedence. Logically the state says it has the authority to create more laws effecting a group of people because those people never objected to the state’s previous interference. What appeared to be a benign action is really a mechanism of establishing future controls.
When the state passes a law that enacts an already generally accepted custom people generally don’t protest. The few who do protest are met with criticism by those who see no problem with the newly enacted law. Supporters of the state will say, “What the big deal? This is how we’ve been doing things. Nothing is changing.” They’re not lying, nothing changes, initially. What they fails to see is what future implications such laws hold. It is important to fight any power grab the state makes, even if that power grab seems benign. Every action taken by the state sets a precedence that the state can later use to justify future grabs for power. Let what happened to the mining industry be a lesson to us all. What started off as mere codification of currently accepted mining camp customs has turned into complete and total state regulation over the mining industry.