San Andreas independent., 1858-04-17
Correspondence of the Independent.

MuRPHys, April 9th, 1858.
! Mr. EDITOR The storm God is hoyerino
about this good old town of Murphy's and the
rain beats steadily upon the house tops, the
/ hill and the valley. The outer man is driven
to shelter, and the wandering, speculative
thoughts gather closer home, and one begins
to think, for it is most excellent stimulant to
meditation, this pat, pat, pat of the rain drops
on the roof of an old shanty. But man is bv
nature social being; he likes to communicate
his thoughts to his fellows; and as have been
thinking of matters that seem to me of general
and grave interest to my brother miners,
VIII give some OF them, that you may, in your
discretion, either consgn them to the flames,
or give them publicity through the columns OF
your pleasant freside journal
1t seems to me that the question now mooted
by the Legislature of California, to exempt
mining claims, by legislative enactment, from
forced sale under execution, although right in
principle and policy, is utterly useless and in
effective in point of fact for the simple reason
that mining claims are already exempt from
sale under execution. 1t is true that the al
most uniform practice heretofore, is opposed
to the principle above stated but your CORES
pondent believes this to be owing to the fact
that the principle has never been fully tested.
1t is certainly question that gravey interests
the mining community; and this is my excuse
for submitting to the public the following
views in support of the position have assu-
med.
All the interest miner has in the mineral
land, is right to extract the gold from the
earth and appropriate it to his own use 1t is
purely personal right--a naked franchise
This right exists so long as the United States
government-the sole owner of the soil--shal
be pleased to extend it, and no longer The
General government has imposed solitary
restriction upon the exercise of this right,
which is, that it must accord with the customs
Of miners; and the laws or lawmakers of
California can impose no other restrictions
All, then, that is sold under an execution, is
the right of miner to work in the place of
his choice; and the simple question is wheth-
er this right is such property or interest as
can properly be reached by legal process un-
der execution.
If A owns farm, with an unoccupied house
thereon, and gives his fried permission 10
occupy the house and till the ground, until A
shall wish to make other disposition of the
premises, 1t is plain that B's creditor cannot
withdraw AS hospitality and sell B out of AS
house and land. If \ have spare bed and
room in his house, and give his friend B per-
mission to sleep in the bed until otherwise no
ti6ea, it 10 vlcrr that e cannot sell out of his
right to sleep in AS bed. And yet the inter
est that the miner has in his claim, is almos.
identical with the right that B may have ac
quired under AS hospitality. e.-to enjoy
the premises until the proprietor forbids him
A has a personal right to sell goods or prac
tice law or midicine in any town that he NAV
select. This right is not subject to forced
sale under execution, though it may be very
valuable to him. but he can himself sell it
calling it in his deed: his good ,ciV 1t will
be seen from this illustration, that the mere
fact of Ualue being attached to right, does
not necessarily subject the right to sale for
debt-the only real plausible argument that
can be produced in refutation of the position
assumed by your correspondent.
Another view may be taken of the subject,
ON strictly legal grounds. The right of the
miner to extract gold from the mines, is q
purely personal right-a franchise granted by
the. government. BY the common law of
England, a franchise was not subject to forced
sale This principle of the common law, not
having been altered BY statute, is the law of
California. The Supreme Court of California
in the case Of q ferry, have decided that a
franchise, or bare privilege, where the right
carried no title to property, was not subject to
forced sale. The principle will be readily seen
to be broadly applicable to the relation of the
miner to the ground he works.
1t would seem, from the propositions above
stated, now before the legislature for the pro-
lection (?) OF ranchmen in the mines, and all
other bills restricting the free exercise of the
rights granted to the miner by the General
Government, is totally Ineffective in its practi-
cal results. Such laws seem to be plainly be-
yond the pale of legislative authority. If the
General Congress has the right to dispose of
its own property, then any legislation, by our
State legislature, to interfere with this dispo-
sition of the property of the General Govern
ment, by Congress, is plainly going beyond
the bounds of legislative authority. Congress
has declared that miners shall have the right
to work the mines, subject to the solitary re-
striction above mentioned and it is too plain
to admit of an argument that the State legis
lature cannot turn the mines into agricultural
lands, by passing such laws as will conflict in
any way with the exercise of the rights gran
ted to the miner by the General Government
and hence in conflict with the laws of the
General Government, enacted under authority
from the National Constitution.
Yours, LELAS.
B9-The Vide West has just entered
upon vol. V, and comes to US in an en-
tire new dress bv far more neat and taste