LAW AND SOCIETY ACROSS THE PACIFIC

Nevada County, California, 1849 - 1860 and Gympie, Queensland, 1867 - 1880

Simon Chapple

School of History and Philosophy University of New South Wales February 2010

Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy

1 Originality Statement

I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgment is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged.

Simon Chapple

2 ABSTRACT

This thesis explores the connection between legal history and social history through an analysis of commercial, property and criminal laws, and their practical operation, in Nevada County, California from 1849 to 1860 and the Gympie region, Queensland from 1867 to 1880. By explaining the operation of a broad range of laws in a local context, this thesis seeks to provide a more complete picture of the operation of law in each community and identify the ways in which the law influenced social, political and economic life.

The history of law cannot be separate from its social, economic, geographic, and political context.

Each of these factors influenced both the text of the laws, and their practical application. In the

Gympie region and Nevada County, the law had the effect of, in various guises, safeguarding private property, promoting short term productivity, and enforcing public morality. This was often at the expense of individual autonomy, the physical environment and the rights of minority groups. This was not a result of the operation of one dominant force in the lawmaking process. Instead, government regulation, government inactivity, informal customs, and judicial lawmaking worked together to create a legal order on either side of the Pacific. The comparison reveals that the same pattern of tensions gave the legal regime in each region a substantially similar shape.

At another level, this thesis demonstrates that two regions, although on different continents and separated by a 20 year time gap, were nevertheless linked across time and space. By comparing the regions, this thesis demonstrates the possibilities of a more international legal history. While there were certainly differences between each region, these differences should not obscure the substantial similarities, and the fact that an analysis of these similarities illuminates the shared influences between the regions. By conceiving of legal regimes as being shaped by shifting patterns of tensions, defining the pattern of those tensions, and then connecting those patterns across national borders it is possible to write a more complex, interesting, and transnational version of legal history.

3 TABLE OF CONTENTS

Acknowledgments 5 Tables and illustrations 6

1 Introduction 8 2 Legal Regimes across the Pacific 35

PART ONE

3 Mining Law in Nevada County 53 4 Mining Law in Gympie 105 5 Mining Law across the Pacific 150

PART TWO

6 Commercial Law in Nevada County 170 7 Commercial Law in Gympie 211 8 Commercial Law across the Pacific 241

PART THREE

9 Criminal Law in Nevada County 255 10 Criminal Law in Gympie 309 11 Criminal Law across the Pacific 355

12 Law and Society across the Pacific 371

Bibliography 378

4 ACKNOWLEDGMENTS

I would like to thank my supervisor, Professor Ian Tyrrell, who helped me through the often daunting process of research and writing with his constant encouragement, insightful comments, and bibliographic knowledge of Australian and American historiography.

This thesis required me to spend time researching in Queensland and the United States. Thank you to the Faculty of Arts and Social Sciences at the University of New South Wales for assistance with funding. In California, the staff at the Bancroft Library, California State Archives, California State

Library, and Placer County Archives were particularly helpful. The knowledgeable volunteers at the

Doris Foley Historical Library and the Searls Historical Library in Nevada City not only helped me to navigate their wonderful collections, but were ever willing to help me to understand better their town and its rich history. Amanda Barbera, Jake Chapple and Cathy Schenck, Mitch Freeman, Rachel

Jacqueline, and Monika Walsh all kindly allowed me to stay with them while researching in the

United States. In Queensland, the staff of the State Library of Queensland and the Queensland State

Archives helped me to find sometimes obscure legal records. My grandmother, Cookie, generously allowed me to stay with her in Brisbane.

Thank you to all my colleagues who offered comments and suggestions on sections of my thesis. In particular, the participants at the Australian and New Zealand Law and History Society conferences in

Hobart and Armidale, and the participants at the Australian and New Zealand American Studies

Association conferences in Launceston and Sydney. Lucy Arblaster, Garry Chapple, Julie Chapple,

Sara Chapple, and Ivan Yu have all read portions of the thesis and provided me with valuable comments (particularly my father, Garry, who read the entire manuscript twice)!

Finally, to my parents, Julie and Garry, my sister, Sara, and my fiancé, Lucy, who kept me sane throughout the process of researching and writing. I could not have finished without your help.

Thank you.

5 TABLES AND ILLUSTRATIONS

1.1 Map of present day Nevada County and major cities 9 1.2 Map of the present day Gympie region 11 3.1 Water laws in mining districts 91 3.2 Hydraulic mining in Nevada County 98 3.3 Laws of Placer Mining Districts in Nevada County (1850-1855) 100 3.4 Laws of Quartz Mining Districts in Nevada County 102 4.1 The Gold Commissioners 110 4.2 Miner’s Rights issues between 1868 and 1880 112 4.3 Attendance of Local Court members from inception until 12 November 1868 127 4.4 Civil cases heard by the Warden’s Court - 24 April 1876 to 7 November 1877 133 4.5 Number of cases heard by the Warden’s Court - 24 April 1876 to 7 November 1877 135 4.6 Comparison of mining applications heard by the Warden’s Court - 24 April 1876 to 7 135 November 1877 4.7 Comparison of forfeiture provisions in Gold Mining Regulations 147 4.8 Comparison of size of claims in Gold Mining Regulations 148 5.1 Comparison of of Monthly Rainfall (mm) in Gympie and Nevada City 168 6.1 Broad Street, Nevada City in 1857 171 6.2 Businessmen in Nevada City and Grass Valley 1850-1860 172 6.3 Occupation of women in Nevada City and Grass Valley in 1860 174 6.4 Debt recovery cases heard in Justice Courts and District Court in Nevada County 188 6.5 Verdicts in Debt Recovery Cases heard in Nevada County District Court, June 1856 – 190 June 1857 6.6 Verdicts in Debt Recovery Cases heard in Justice Courts (1850-1863) 191 6.7 Formation of mining companies in Nevada County and California 1850-1859 204 7.1 Mary Street, Gympie in 1868 212 7.2 Sample of cases heard by the Small Debts Court from 1868-1880 219 7.3 Civil cases heard by the Gympie District Court 1868-1880 220 7.4 Number of cases heard in Gympie’s civil courts 224 8.1 Comparison of debt recovery cases in Gympie and Nevada County 242 9.1 The Courthouse in Nevada City (1856) 258 9.2 Cases heard by the Nevada County Court of Sessions, 1856-1863 261 9.3 Cases heard by the Placer County Court of Sessions, 1851-1854 262 9.4 Violent offences heard by the Nevada County Court of Sessions, 1856-1863 264

6 9.5 Property offences heard by the Nevada County Court of Sessions, 1856-1863 282 9.6 Verdicts in cases of larceny heard by the Nevada County Court of Sessions, 1856-1863 283 9.7 Verdicts in cases of robbery and burglary heard by the Nevada County Court of Sessions, 284 1856-1863 9.8 The Hotel de Paris in Nevada City (1853) 299 10.1 The Courthouse in Gympie 312 10.2 Police stationed at Gympie 1868-1872 316 10.3 Offences against the Person in the Gympie Police Court 1868-1880 320 10.4 Property offences in the Gympie Police Court 1868-1880 332 10.5 Drunk and disorderly offences in the Gympie Police Court 1868-1880 336 10.6 Liquor licences granted in Gympie between 1868 and 1880 337 10.7 Female public order offences in the Gympie Police Court 1868-1880 341 10.8 The Criterion Hotel, Gympie (1872) 343 10.9 Brisbane Hotel, Gympie (1872) 344 10.10 Age of Gympie population in 1868, 1871 and 1876 350 10.11 Ratio of males to females over the age of 15 in Gympie in 1868, 1871 and 1876 351 10.12 Ratio of children under the age of 10 in Gympie in 1868, 1871 and 1876 352 10.13 Number of married males and females in Gympie in 1868, 1871 and 1876 352 10.14 Comparison of public order offences to property offences and offences against the person 354 in the Gympie Police Court 1868-1880

7 CHAPTER 1

INTRODUCTION

This thesis explores the connection between legal history and social history through an analysis of the commercial, property and criminal laws, and their practical operation, in Nevada County, California from 1849 to 1860 and the Gympie region, Queensland from 1867 to 1880. By explaining the operation of a broad range of laws in a local context, this thesis seeks to provide a more complete picture of the operation of law in each community and identify the ways in which the law influenced social, political and economic life. It considers whether the law maximised welfare, wealth, or achieved social justice, and analyses the assumptions about society that were reflected in the law and in turn reinforced by it. There is surprisingly little scholarship on this in the Australian context, and virtually none on the comparison with the American West. At another level, this thesis demonstrates that two regions, although on different continents and separated by a 20 year time gap, were nevertheless linked across time and space. By comparing the regions, this thesis demonstrates the substantial similarities between the Californian and Queensland legal experience and seeks to explain those similarities. There are very few examples of legal comparison between nineteenth-century

Australia and the United States, and none that compare the legal order of two nineteenth-century communities. This field is therefore open for new research and interpretation.

Introducing the golden regions: Nevada County and the Gympie region

In January 1848, gold was discovered in the tailrace of a sawmill that was constructed on the

American river at Coloma in California.1 Within months, news of the discovery had spread to the

Atlantic States and as far as Peru and Chile.2 In late 1848, miners began to explore the rivers and gullies around Coloma, and in the autumn of 1849, word spread that rich deposits could be found in the waters of Deer Creek, in what is now Nevada County. By the end of 1849, it was estimated that

1,000 miners were working the area around Deer Creek. By the spring of 1850, between 6,000 and

1 Rodman Paul, California Gold, 3rd ed. (Lincoln: University of Nebraska Press, 1969), p. 17. 2 Paul, California Gold, p. 22.

8 16,000 miners had taken up ground around the twin cities of Nevada City and Grass Valley, located 4 miles apart and around 50 miles north-east of Sacramento. By 1860, the combined population of these towns was estimated at a little over 7,500.3 Nevada City and Grass Valley became the two most important towns in the region that became Nevada County, an area that stretches from Truckee in the east to Penn Valley in the West (Figure 1.1).

Figure 1.1: Map of present day Nevada County and major cities

Nevada City and Grass Valley owed their initial prosperity to the miners who searched the creeks and streams for traces of gold. Unlike many gold mining towns that prospered for a while until their shallow gold ran out, Nevada City and Grass Valley attained a level of permanence because their deep quartz deposits supported the development of a large-scale industrial economy.4 For this reason, the

3 Ralph Mann, After the Gold Rush: Society in Grass Valley and Nevada City, California 1849-1870 (Stanford, CA: Stanford University Press, 1982), p. 224. 4 Mann, After the Gold Rush, p. 1.

9 gold rush historian Rodman Paul has suggested that Nevada County was “the most important mining county in the entire state”.5

Given its significance in gold rush history, it is surprising that Nevada County as a region has been relatively neglected by professional historians. The only extended scholarly treatment of the region was written by Ralph Mann in 1982.6 Mann’s history of Nevada City and Grass Valley is a detailed review of the social changes that accompanied economic transformation from 1850 to 1870.7 He argues that the miners brought with them their commercial and financial systems, political parties, fraternal organisations, as well as racial and ethnic stereotypes. These values and institutions provided a base for the new communities of Nevada City and Grass Valley, but also, at times, threatened their peace.8

Mann’s social history does not deal in any great detail with the legal issues that concerned Nevada

County in the first decade of its existence. His work does, however, provide a good basis from which to discuss the role of law in politics, economics, and society. Mann argues that from 1849 to 1856, the central issue was the survival of the towns. As both towns became more developed, problems of law and order required some form of town government. The fear of moral disorder led to a reform movement, which focused on issues such as temperance, sabbatarianism, and the ways to combat moral decay and disorder that accompanied the foreign miners, particularly the Chinese.9 The second period between 1856 and 1863 was a time of relative moral peace that was achieved by separating the

‘immoral’ elements from the rest of the town.10

5 Paul, California Gold, p. 42.. 6 Despite the lack of attention of professional historians, local historians have provided valuable accounts of this early period. In particular, see the comprehensive trilogy of David Comstock: Gold Diggers & Camp Followers (Grass Valley, CA: Comstock Bonanza Press, 1982); Brides of the Gold Rush (Grass Valley, CA: Comstock Bonanza Press, 1987); and Greenbacks and Copperheads (Grass Valley, CA: Comstock Bonanza Press, 1995). 7 Ralph Mann, After the Gold Rush, p. 1. 8 Ralph Mann, After the Gold Rush, pp. 4-5. 9 Ralph Mann, After the Gold Rush, pp. 34-62. 10 Ralph Mann, After the Gold Rush, pp. 72-117.

10 On the other side of the Pacific less than 20 years later, similar events took place as James Nash explored the gullies around Gympie Creek in the Australian colony of Queensland.11 On 17 October

1867, a cautious note appeared in the Brisbane Courier:

Gold has been found within sixty miles of Maryborough ... The precise locality is not yet

generally known ... The field is expected to turn out well.12

At the time of the report, less than 10 miners were working in the area known as Gympie Creek, which is nestled about 100 miles north of Brisbane and 50 miles south of Maryborough (Figure 1.2).

Within a week, the camp had been flooded by 200 ambitious miners, with a further 300 on their way.

By the end of 1868, the camp had grown to become a bustling town that was home to over 10,000 miners. In 1876, after the initial influx of population, the Queensland census reported a population in the region of over 5,300. During this decade, the town of Gympie became the focus of the district that is now known as the Gympie region, stretching from Tin Can Bay on the east coast, over 100 kilometres inland, including towns such as Kilkivan, Imbil and Widgee.

Figure 1.2: Map of the present day Gympie region

Like Nevada County, gold mining in the Gympie region first took place in the creeks and gullies around the site of Nash’s original discovery. This method of mining soon gave way to the exploitation of deep quartz deposits, which attracted large mining companies and led to a similar

11 The discovery of gold in Queensland occurred well after the discovery of gold in the southern colonies. Gold was discovered in the colony of New South Wales in 1851 and soon afterwards in the Colony of Victoria. The reason for the choice of Gympie in this thesis is discussed later in this chapter. 12 Brisbane Courier, 17 October 1867.

11 industrial mining economy to that of Nevada County. So important did Gympie become that historians refer to it as the town that saved Queensland from drowning in debt.13

Like Nevada County, the Gympie region has received little scholarly attention. Historians of the

Australian gold rush have tended to focus their attention on the southern colonies, and the only extended treatment of the Gympie region is Gympie Gold by Hector Holthouse and undergraduate theses by Ian Carnell and R. G. Vickery Lockwood.14 The work of Holthouse provides a general overview of Gympie’s social history, but is concerned more with telling the famous stories of the region than with providing a detailed picture of Gympie’s social and economic order. None of

Holthouse, Carnell, or Vickery Lockwood consider in any detail the nature of Gympie’s legal regime.

Any discussion of law is limited to the problem of law and order and their interpretations of this issue are contradictory. Holthouse argues that Gympie’s reputation as a profitable gold mining town led to a surge in thieving and robbery.15 Carnell, on the other hand, argues that Gympie experienced comparatively little crime.16 The only academic work that deals with Gympie’s legal history is that of

June Stoodley, who published two articles in the 1960s in which she described the development of mining law in Gympie.17 In this sense, there is much room for this thesis to make an original contribution to the legal and social history of the Gympie region and to Queensland more generally.

The approach in this thesis is to explore the connections between the legal history and the social history of the Gympie region and Nevada County by analysing the commercial, criminal and mining laws of each region. This approach is inspired by the work of social historians, who have studied the history of individual communities since the 1950s. Historians who have engaged in this type of close analysis argue that the benefit is that issues that “are almost unyielding over a larger area can be

13 Raymond Evans, A History of Queensland (Melbourne, Vic.: Cambridge University Press, 2007), p. 104. 14 Hector Holthouse, Gympie Gold (Sydney, NSW: Angus & Robertson, 1973); Ian Carnell, "A history of Gympie, 1867- 1900" (unpublished honours thesis, University of Queensland, 1980); R G Vickery Lockwood, "History of Gympie: the 1840's-1900's" (unpublished honours thesis, University of Queensland, 1964). 15 Hector Holthouse, Gympie Gold, p. 126. 16 Ian Carnell, “A history of Gympie”, p. 16. 17 June Stoodley, "An Early Aspect of Queensland Mining Law: The Area of Gold Mining Leases", University of Queensland Law Journal, 5 (1966), 179-190; June Stoodley, "Miner v Landlowner: The Conflict over Mining on Private Land in Queensland", University of Queensland Law Journal, 5 (1966), 353.

12 relatively easily disposed of on this smaller canvas”.18 On one hand, this research is important

because individual regions can warrant scholarly attention in their own right. Given the importance of

Nevada County and Gympie in their respective national gold rush histories, a deeper understanding of

each region’s legal history has great historical value. In addition, community histories can “generate

results that add to our substantive, our theoretical, or our methodological knowledge in general”.19

This is typical of many local histories. In his study of New Haven, Robert Dahl noted that “though no

city can claim to represent cities in general, and though certainly none can claim to display the full

range of characteristics found in a national political system, New Haven is in many respects typical of

other cities in the United States”.20

Local histories may certainly reflect wider trends, but this thesis does not go so far as to suggest, as

Robert Dykstra and William Silag have, that community histories are really national histories in a

local context.21 In this thesis, the stories of Nevada County and the Gympie region are each analysed

as part of gold rush historiography and, where possible, considered in a wider national or international

context.22 At the same time, however, it is acknowledged that the typicality or “representativeness” of

each local history cannot be assumed.23 Any differences between the local experience and the wider

national and international stories are important and must be explained.

18 Robert A. Dahl , Who Governs? Democracy and Power in an American City (New Haven, CT: Yale University Press, 1961), p.v. See also Stephan Thernstrom, Poverty and Progress: Social Mobility in a Nineteenth Century City (Cambridge, MA: Harvard University Press, 1964) who argues that a community history allows the opportunity to consider problems “vertically” and Merle Curti, whose work on Trempenleau County is an important contribution to frontier history, Merle Curti, The Making of an American Community (Stanford, CA: Stanford University Press, 1959). 19 Robert R. Dykstra and William Silag, "Doing Local History: Monographic Approaches to the Smaller Community", American Quarterly, 37(3) (1985), 411-425 (p. 412). 20 Robert A. Dahl, Who Governs? Democracy and Power in an American City, p.v; See also Daniel Walkowitz’s study of two 19th century New York cities. He suggests that “the history of nineteenth-century Troy and Cohoes is of more than merely local relevance or antiquarian interest. The contrasting histories of the two illuminate the process of social transformation which resulted in American industrial society”, Daniel J. Walkowitz, Worker City, Company Town (Urbana, IL: University of Illinois Press, 1978), p. 6. 21 Robert R. Dykstra and William Silag, “Doing Local History: Monographic Approaches to the Smaller Community”, p. 413. 22 Robert R. Dykstra and William Silag, “Doing Local History: Monographic Approaches to the Smaller Community”, p. 415. This is the approach adopted by Stephan Thernstrom in Poverty and Progress, who continually refers to wider studies of social mobility in the United States as he tells the story of Newburyport. 23 Robert and Helen Lynd in their study of Middletown suggest that “[n]o claim is made that it is a typical city and the findings of this study can, naturally only with caution, be applied to other cities or American life in general”, discussed in Theodore Caplow, "Middletown Fifty Years After", Contemporary Sociology, 9(1) (1980), 46-50 (p. 47). See also Merle Curti’s disclaimer in Merle Curti, The Making of an American Community, p. 5.

13 The community history approach is a valuable tool for legal historians because it allows a close

analysis of social, political, cultural and economic relationships and interactions.24 For this reason, it

is surprising that this methodology has been used so little. The most notable example of this approach

is the work of Lawrence Friedman and Robert Percival in their analysis of crime and punishment in

Alameda County, California and Bruce Kercher’s analysis of the law of contract in colonial New

South Wales.25 These community legal histories tend to be confined to a discussion of particular

areas or categories of law. No historian has attempted to paint a broader picture of the operation of

the legal system in any particular community. For this reason, the analysis of Nevada County and the

Gympie region stands to make an important methodological and historiographical contribution.

The Comparative Methodology

Three methods are used to compare the legal and social history of Nevada County and the Gympie

region. The first has been called “parallel demonstration of theory”. This is where each case study is

tested against a theory to show that the theory applies to multiple cases. By inductive reasoning, the

comparison suggests that the theory is either valid or invalid.26 A second method is the “contrast of

contexts”. Historians may contrast cases to illustrate the unique features that arise in each case and

how they relate to more general social processes. The strength of this approach is that the historian

can point out the limitations of the general theories, but the focus tends inevitably to be on the unique

features of the cases themselves, and not on building any underlying theory.27 Further, where the

comparison crosses national boundaries, this approach may emphasise national distinctiveness.28 A

final category is “macro-causal analysis”. Here, the comparison is approached by considering the

24 See, for example, Stephan Thernstrom, Poverty and Progress in which he analysed the social mobility among unskilled labourers in Newburyport, Massachusetts; Daniel J. Walkowitz, Worker City, Company Town studied iron and cotton workers, with the object of illuminating the tension between labour and capital; Tamara Harevan, Family Time and Industrial Time: The Relationship between the Family and Work in a New England Industrial Community (Cambridge, UK: Cambridge University Press, 1982) who considered textile workers in New England. 25 Lawrence Friedman and Robert Percival, The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 (Chapel Hill: University of North Carolina Press, 1981); Bruce Kercher, "Commerce and the Development of Contract Law in Early New South Wales", Law and History Review, 9(2) (1991), 269. 26 Theda Skocpol and Margaret Somers, "The Uses of Comparative History in Macrosocial Inquiry", Comparative Studies in Society and History, 22(2) (1980), 174-197 (p. 191). 27 Theda Skocpol and Margaret Somers, "The Uses of Comparative History in Macrosocial Inquiry", p. 192. 28 Ian Tyrrell, "American Exceptionalism in an Age of International History", The American Historical Review, 96(4) (1991), 1031-1055.

14 cause of the event rather than the event itself. The question asked is whether similar social or economic conditions can precipitate similar events. In this thesis, for example, an important question is whether similar social and economic conditions shape the law in similar ways. The weakness is that by drawing broad parallels, the historian may ignore local causes. This thesis uses all three approaches when comparing Nevada County and the Gympie region to demonstrate substantial similarities between the legal experience in each region, the connections between each region, and the reasons for those similarities.

It is appropriate to compare Nevada County and the Gympie region because they shared important geographic, geological, demographic and economic characteristics. In 1885, James Robert Thackeray wrote a guide to the town of Gympie and its district. In it, Thackeray described the town of Gympie as being “pleasantly situated, like Ancient Rome, on seven hills, with Mary Street, its principle thoroughfare, running between them. These hills are named, Commissioner’s, Surface, O’Connell,

Palatine, Caledonian, Carlton and Red Hill”.29 Over 100 years later, Maria E. Brower, a Nevada City historian, observed that “[l]ike Rome, Nevada is built on seven hills: Piety, Prospect, Boulder,

Aristocracy, Buckeye, Nabob and Lost”.30 These similarities are obvious to even the present day visitor who climbs the steep and winding streets that rise up from Deer Creek in Nevada City and the

Mary River in Gympie. In addition, each region was similarly isolated, located approximately the same distance from the major centres of Sacramento and Maryborough, and both located over 100 miles from the cities of San Francisco and Brisbane.

As has already been mentioned, each region was also the site of significant gold mining activity.

Gold was originally found in the rivers and streams of Nevada County and the Gympie region, but miners quickly turned their attention to quartz gold, which was encased within rock and more expensive to extract. The similarity of the quartz gold found in each region is such that jewellers in

Nevada City display quartz gold from Gympie alongside samples from Nevada County. In terms of population, both regions attracted an early rush of miners, followed by a brief decline, before a period

29 J. R. Thackeray, Gympie and its District: A Field for Emigration and Settlement (Maryborough, Qld: Robinson & Co, 1885), p. 6. 30 Maria E. Brower, Gold Rush Towns of Nevada County (Charleston, SC: Arcadia Publishing, 2006), p. 66.

15 of steady population growth built on the back of the quartz mining industry. In the space of a decade, both regions developed from wilderness to become cities with thriving industrial economies. The makeup of the population was also similar. Both regions were dominated by men who arrived in order to find gold and many of these people were foreign-born. This influx of population displaced local indigenous tribes. As both regions evolved, the proportion of females inhabitants increased.

The similarity of the two regions provides a valuable historical laboratory for investigating the nature of law and its connections with the economic, political and moral order on either side of the Pacific.

The value of transnational comparisons

For two decades or more, historians have been concerned with the problem of ‘internationalising’ national histories. Comparison across national borders is just one method by which this can be achieved. Other tools include ‘world history’, ‘international history’, ‘connected history’ and

‘transnational history’.31 The methodology of transnational history offers particularly exciting avenues for new insight by legal historians. Transnational history includes conceiving of history simultaneously in different geographic scales in order to go outside the boundaries of national historiography.32 As Richard White points out, a history of a particular house or building may appear to be local, but its inhabitants may derive their perspective from a range of local, regional, national and international sources.33 Pierre-Yves Saunier similarly suggests that each case study may add to its local and national story, but also acknowledges “non-domestic contributions to the design, discussion and implementation of patterns that are often seen as owing their characteristics to national or local conditions”.34 In the process, historians may consider the importance of international global pressures, such as international economics or immigration, the exchange of ideas across national boundaries, and the study of international organisations or movements.35 Legal history by its nature is connected strongly to the nation state. Nevertheless, the transnational approach can provide new

31 Pierre-Yves Saunier, "Learning by Doing: Notes about the Making of the Palgrave Dictionary of Transnational History”, Journal of Modern European History, 6(2) (2008), 159-180 (p. 163). 32 Tyrrell, "American Exceptionalism in an Age of International History", p. 1033. 33 White’s metaphor is explained by David Thelen, “The Nation and Beyond: Transnational Perspectives on United States History”, Journal of American History, 86(3) (1999), 965-975, p. 971. 34 Saunier, “Learning by Doing: Notes about the Making of the Palgrave Dictionary of Transnational History”, p. 168. 35 Tyrrell, “American Exceptionalism in an Age of International History”, pp. 1044-1050.

16 insights by shifting (even if only slightly) the focus from the nation state, while still recognising its role; by looking for connections between legal systems rather than emphasising the uniqueness of any one legal system.36

Advocates of transnational history have criticised the comparative approach for the reason that it does not transcend the boundaries of nationalist historiography.37 This is a valid criticism of comparisons that seek to emphasise the distinctiveness of the units of comparison, or where the units of comparison are locked within the structure of the nation state. This is not the fault of comparison itself, but the purpose for which historians have used it. Done carefully, comparative history can complement the aims of transnational history by demonstrating shared influences and exchanges across national boundaries.38 Ian Tyrrell has suggested, for example, that exchanges between Australia and the

United States can reveal “elements of a common history” especially “in the shared responses of sections of the American West and Australia to novel environmental and economic circumstances”.39

By placing the history of Nevada County and the Gympie region in their historical context, it is possible to demonstrate the important similarities between the regions and the transnational forces that connected them.

Not all ‘transnational forces’ are the same. It is important to identify the different ‘transnational forces’ that are analysed in this thesis so as to make clear the subtle differences between the processes that each term describes. Laws may be received into a legal system (where laws are incorporated into a legal system, usually a colony, as a result of a region being conquered, settled, or ceded), or particular laws may be adopted by a legal system (where a legislature expressly chooses to copy the law of another nation, or a court chooses to follow decisions of a foreign court). The flow of these legal principles may go only in only one direction (in the case of a transfer of legal ideas) or may go in multiple directions (in the case of an exchange of legal ideas). Where these transfers and

36 Tyrrell, “American Exceptionalism in an Age of International History”, p. 1033. 37 Tyrrell, “American Exceptionalism in an Age of International History”, pp. 1031-1055. 38 Internationalizing the Study of American History: A Joint Project of the Organization of American Historians of New York University, Report on Conference III, Villa La Pietra, New York University in Florence, Italy, July 5-8, 1999, http://www.oah.org/activites/lapietra/report3.html. [Accessed 4 September 2009]. 39 Ian Tyrrell, “Peripheral Visions: Californian-Australian Environmental Contexts, c.1850s-1910”, Journal of World History, 82 (1997), 275-302 (p. 276).

17 exchanges form part of a wider network, it might be described as a circulation of legal ideas. Laws may evolve as a result of these direct legal influences, but laws may also evolve organically in response to particular social, economic, or political conditions. In many cases, these conditions are common to many regions, perhaps as a result of the circulation of ideas around the globe, or the work of international organisations. This organic law can then also be seen as transnational in the sense that it is part of a global story. Laws may also be enacted in response to particular geographic or geologic conditions. If these conditions are common to a number of regions, the resulting law may form part of a wider transnational response. This is particularly true if the legal response is informed by ideas, customs, or cultural values that are not specific to a particular region. By discussing each of these forces that transcend the nation state, this thesis can be categorised as a type of ‘transnational comparison’, which seeks, in part, to use comparison to highlight the influence of globally circulating ideas and customs, immigration patterns, and transnational organisations on the development of local legal systems, as well as documenting the shared legal response to similar social, political, economic, geographic and geological characteristics.40

Gold Rush and Frontier Historiography

The legal history of Nevada County and the Gympie Region forms part of a wider story of nineteenth- century frontier and gold rush history in Australia and the United States. This history, at least until recently, has been part of a story of nation building, nationalism and national identity. Australian historians have traditionally described the gold rush as an important event in the development of

Australian democracy and the nation. US historians, on the other hand, have tended to see the gold rush as an example of American democratic and social values in action.41

The most famous model for understanding the American west was proposed by Frederick Jackson

Turner who, in his frontier thesis, argued that the American frontier was productive of

40 Tyrrell, “American Exceptionalism in an Age of International History”, pp. 1048-1050. 41 David Goodman, Gold Seeking: Victoria and California in the 1850s (St Leonards, NSW: Allen & Unwin, 1994), p. 14.

18 individualism.42 Richard Hofstadter notes that Turner used the term ‘individualism’ in three different ways.43 Firstly, he argued that the frontier promoted individualism in the sense of ambition, self- sufficiency and the prospect for advancement. Secondly, he referred to individualism as an absence of mutuality or collective effort. He argued, for example, that society was like “a mobile mass of freely circulating atoms, each seeking its own place and finding play for its own powers and for its own original initiative” and that a frontier community was “not a complex, highly differentiated and organised society. Almost every family was a self-sufficing unit”. Finally, Turner referred to individualism as a synonym for laissez-faire. He argued that the “individual was not ready to submit to complex regulations” and was opposed to governmental regulation. This frontier individualism, in its three forms, promoted democracy that was “born of the free land, strong in selfishness and individualism, intolerant of administrative experience and education, and pressing individual liberty beyond its proper bounds.”44

Revisions of Turner have suggested that more importance be placed on the cooperative aspects of the frontier experience. This is not to say that Turner ignored the importance of cooperation. In a later essay, Turner argued that in the story of the conquest of arid and mineral lands, these physical conditions accelerated the social and cooperative tendency of western democracy.45 Merle Curti, in his 1951 study of Trempealeau County, Wisconsin, noted the presence of individualism in

Trempealeau County (in the first sense described above), but he also stressed the importance of cooperation and mutual help on the frontier. He noted that the historical record includes

“innumerable examples of mutual helpfulness and voluntary association for common ends.”46

Similarly, Ray Allen Billington argued that frontier democracy was characterised by both individualism and cooperation.47 He argued that “conflicts with Indians, with raw nature, and with

42 Frederick Jackson Turner, “The Significance of the Frontier in American History” (1893), in The Frontier in American History, (New York: Dover, 1996), p. 30. 43 Richard Hofstadter, The Progressive Historians (New York: Alfred A Knopf, 1968). 44 Frederick Jackson Turner, “The Significance of the Frontier in American History”, p. 32. 45 Frederick Jackson Turner, “Contributions of the West to American Democracy” (1903), in The Frontier in American History (New York: Dover, 1996), p. 32. 46 Merle Curti, The Making of an American Community, p. 139. 47 Ray Allen Billington, “Frontier Democracy: Social Aspects” in George Rogers Taylor ed., The Turner Thesis, (Lexington, MA: Heath and Company, 1972), p. 165.

19 dominating Easterners heightened the spirit of interdependence”.48 Frontiersmen were “opportunists rather than consistent theorists”. They were “willing to follow any path that promised success. If their ends could be achieved by individualistic effort, they preached individualism. If, more commonly, cooperative labor was necessary, or the use of government controls, they showed no reluctance in supporting these devices.”49 In the same vein, Richard Hofstadter argues that frontier organisation was “a mixture of the familial and the collective, of the private and the governmental, whose devices were arrived at through experience and at the dictates of expediency”.50

The early historiography of the Californian gold rush tells a similar story of both individualism and cooperation. The work of gold rush historians writing in the nineteenth century was nationalistic and emphasised the ‘exceptional’ nature of the American experience. H.H. Bancroft, Charles Shinn and

Theodore Hittell all wrote of the unique achievements of the gold period such as the rapid transformation of California, the establishment of local, and peculiarly American, democratic institutions, and self-governance.51 Rodman Paul built upon this early scholarship in his classic work,

California Gold, which was published in 1947. Paul stressed the unique national characteristics of the period, but his point of departure from earlier historians was his observation that the industry transformed from one that was characterised by individual ownership and labour, to one of corporate consolidation and industrialisation. Three themes are evident in Paul’s work: the interdependence of technology and social organization; the national and ethnic origins of the gold miners; and the absence of federal or state assistance.52 This thesis builds on the work of frontier historians and considers the relative importance of individualism and cooperation, and the tensions that existed between them.

Until the mid-1980s, the dominant view of the American West was based on Turner’s explanation of the West as a process of expansion based on the European-American pioneering experience. The approach of Western historians such as William Cronon, Patricia Nelson Limerick and Richard White

48 Ray Allen Billington, “Frontier Democracy: Social Aspects”, p. 166. 49 Ray Allen Billington, “Frontier Democracy: Social Aspects”, p. 172. 50 Richard Hofstadter, The Progressive Historians, p. 145. 51 David Goodman, Gold Seeking, p. 11. 52 Paul, California Gold, p. 204. For further work on Californian gold rush in the style of Rodman Paul, see William Ellison, A Self-Governing Dominion (Berkeley, CA: University of California Press, 1950).

20 in the past two decades has been to de-emphasise the story of the white ‘colonisation’ of the West, and to re-conceptualise the West as a ‘place’ in which complex social, environmental, political and economic relationships developed between individuals, within and across cultures, between political systems and, finally, between humans and the environment. These historians argue that the

“romantic, heroic glow” that characterised “old western history” should be replaced by new themes such as ethnicity, the role of women, cultural dislocation, environmental calamity and economic exploitation.53 The new social history of the American West is also reflected in the recent gold rush historiography. Ralph Mann’s comparison of Nevada City and Grass Valley, and Roger Lotchin’s study of the growth of San Francisco, particularly the development of the local population, economy, society, governmental institutions and attitudes, are representative of some of the work that has emerged in the past three decades.54

This new conceptualisation of Western history is a significant revision of Turner’s thesis. However, it is important that “in revising Turner” we are careful not to “throw the frontier baby out with the bathwater”.55 This is particularly true in the field of legal history. American legal institutions, both formal and informal, arrived from the East. Formal law arrived with the early lawyers and judges and in the statutes and law reports that they carried with them. Less formal laws were carried in the remembered legal experience of settlers, and their notions of informal justice, such as the vigilante tradition, which developed and redeveloped in successive western communities.56 At the same time, there existed in each community certain cultural, economic and environmental factors that the new

Western historians have illuminated. In this way, the legal history of the American West can connect the traditional explanation of the settlement of the West with the wider story offered by new Western

53 Elliot West, “A Longer, Grimmer, but More Interesting Story” in Limerick ed. Trails: Toward a New Western History, (Lawrence, KS: University Press of Kansas, 1991), p. 110. 54 Roger W. Lotchin, San Francisco, 1846-1856: From Hamlet to City (New York: Oxford University Press, 1974). Other interpretations include Kevin Starr’s intellectual and cultural history of California: Kevin Starr, Americans and the California Dream 1850-1915 (New York: Oxford University Press, 1986) and Malcolm Rohrbough who has studied the social and psychological importance of the gold rush in Days of gold: the California Gold Rush and the American nation (Berkeley: University of California Press, 1997). 55 Malone, Michael P., “Toward a New Approach to Western American History”, in Limerick ed., Trails: Toward a New Western History, (Lawrence, KS: University Press of Kansas, 1991), p. 151; William Cronon, “Revisiting the Vanishing Frontier: The Legacy of Frederick Jackson Turner,” Western Historical Quarterly, 18 (1987), 157. 56 John Phillip Reid, Policing the Elephant: Crime, Punishment and Social Behaviour on the Overland Trail (San Marino: Huntington Library, 1997); John Phillip Reid, Law for the Elephant: Property and Social Behaviour on the Overland Trail (San Marino: Huntington Library, 1980).

21 historians. This thesis therefore integrates Turner’s description of settlement and his explanation of its effect with the more nuanced interpretations offered by historians such as Cronon, Limerick and

White.

Historians did not grapple with the implications of Turner’s frontier thesis for Australian history until the 1930s and 1940s in the work of, among others, Fred Alexander, Keith Hancock, Gordon

Greenwood and Norman Harper.57 Hancock, for example, suggested that gold diggers were “the first authentic Australians, the founders of their self-respecting independent, strenuous national life”.58

This argument was adopted by Russel Ward in The Australian Legend. He suggested that a type of

“bush ethos” existed on the Australian frontier. This distinctive outback “ethos” was a result of a combination of the climatic and economic conditions of the outback, as well as the national and social traditions brought by former convict and English settlers.59

The key difference in Australia, according to Ward, was that there was a sharp division between landholders and labour, whereas on the American frontier all settlers desired their individual tract of land. Thus, while the squatter displayed qualities of Turner’s “rugged individualist”, the climatic and economic conditions of the Australian frontier meant that the Australian bushman labourer preferred a social, collectivist outlook. Democracy on the Australian frontier for the bushman meant “freedom to combine with his mates for the collective good, and the discomfiture of ‘those wealthy squatters’”.

However, the Australian frontiersmen displayed “no less dislike of authority, no less antipathy to control, and particularly to any direct control, than did their American counterparts”.60

The early Australian gold rush historiography fits neatly within this tradition. When Geoffrey Serle analysed the political and economic history of the gold rush decade in Victoria, he argued that “gold

57 Ian Tyrrell, “Australian History in Australia: Local Problems and Global Prospects” Australian Journal of American Studies (2004) 65-71. 58 W.K. Hancock, Australia, (1930) (Melbourne, Vic.: Jacaranda Press, 1966), p. 35. Note, however, that while Hancock admits the content of the legend holds, he does note that democracy, nationalism and trade unionism had their beginnings before the gold rush, and would have reached their maturity without it. 59 Russel Ward, The Australian Legend, (Melbourne, Vic.: Oxford University Press, 1958), p. 10. 60 Ward, The Australian Legend, pp. 226-228.

22 … transformed Victoria from a minor pastoral settlement to the most celebrated British colony”.61

Self-interest and materialism flourished on the gold fields, but they remained communities where traditional values of fair dealing, a desire for order, and a willingness to help one’s neighbour were preserved. Put another way, a competitive individualism flourished in the gold mining towns, but never displaced traditional forms of cooperation; egalitarianism and democracy were the products of the era. Robin Gollan has also considered the connection between the gold rush society and the development of democracy. Gollan suggests that the gold fields generated attitudes that were

“egalitarian, self-confident, independent and socially radical”62 and provided the opportunity for “the establishment of entirely different human-economic relations from those prevailing in Britain”.63

Gollan argues that the concentration of miners on the goldfields created a new, radical, political force.

The miners wanted to be economically free and opposed the corporate consolidation of the industry.

They were happy to form informal co-operatives, but opposed the introduction of companies. While many miners arrived on the gold fields committed to democracy, the experience of the gold fields transformed many more.64 Along with Serle, the other major work in Australian gold rush historiography is Geoffrey Blainey’s The Rush that Never Ended. Blainey surveys the history of

Australian mining in a similar fashion to Rodman Paul. He links developments in technology to changing social structures. As technology increased in complexity, and the costs of mining increased, individual miners were more likely to become the employees of larger mining companies. This gave impetus to a rising class-consciousness, unionisation, and miners’ strikes.

Just as Turner’s thesis has been revised in the United States, the same growing understanding of issues of environment, culture, and ethnicity disrupted the grand narrative of Australian history. The issue that has captured the public and political imagination most strongly is the writing of Australian history to include the story of violence against Aboriginal people. In this respect, Ward’s vision of the bush “erased both Aboriginal people as a presence and the pervasive frontier violence perpetrated

61 G. Serle, The Golden Age: A History of the Colony of Victoria 1851-1861 (Melbourne, Vic.: Melbourne University Press, 1963), p. 369. 62 Robin Gollan, Radical and Working Class Politics, (Melbourne, Vic.: Melbourne University Press, 1960), p. 7. 63 Gollan, Radical and Working Class Politics, p. 15. 64 Gollan, Radical and Working Class Politics, pp. 21-23.

23 against them”.65 Other work cases the Australian bush as a “site of imperial adventure and conquest”

and raises issues such as colonialism, race and gender.66 In this same vein, David Goodman has

recently called for an “edgier” history of the gold rush. He argues that “we need to recover a sense of

the gold rushes as dangerous, edgy events with unpredictable outcomes.”67 Recent work has

addressed this theme, specifically the experience of various minorities, such as Aborigines, Chinese

and women, the story of environmental destruction and the story of exploitation of labour.68 By

addressing these themes in the context of a discussion of Gynpie’s legal order, this thesis intends to

contribute to this “edgier” history of the gold rush.

Legal history on either side of the Pacific

The second half of the 20th century saw legal history achieve a new relevance within the historical

profession. Since the pioneering work of Willard Hurst in the late 1950s, historians have increasingly

considered the connections between law and social history. In the United States, much of this

scholarship has focussed on finding a metanarrative to explain the development of its national legal

history. In contrast, scholarship in Australia, beginning with the work of Alex Castles, has been more

concerned with assisting Australian legal history to emerge from the shadow of English law and in the

process describe the development of a distinctive Australian version of law. More recently, there has

emerged in both countries a “critical legal studies” movement, which considers the law and its

relationship with, and impact upon, issues of gender, race and class.

Until the 1940s, the work of legal historians in the United States was largely concerned with tracing

and explaining the development of legal principles. This was first observed by Daniel Boorstin in

1941 who suggested that “[l]egal history, when seriously considered, has been considered an alchemy

65 Angela Woolacott, "Russel Ward, Frontier Violence and Australian Historiograhy", Journal of Australian Colonial History, 10(2) (2008), 23 (p. 24). This point was evocatively put by Henry Reynolds in Henry Reynolds, Why Weren't We Told? A personal search for the truth about our history (Melbourne, Vic.: Viking, 1999), pp. 130-132. Woolacott does concede, however, that violence was present in Ward’s work, but hidden (p. 25). 66 Woolacott, “Russel Ward, Frontier Violence and Australian Historiograhy”, p. 26. 67 David Goodman, “Making an edgier history of Gold”, in McCalman et al, Gold: Forgotten Histories and Lost Objects of Australia (Cambridge, UK: Cambridge University Press, 2003), p. 34. 68 See, for example, S. Lawrence, Dolly’s Creek: an archaeology of a Victorian Goldfields Community (Melbourne, Vic.: Melbourne University Press, 2000); A. Mayne, Hill End: An Historic Australian Goldfields Landscape, (Melbourne, Vic.: Melbourne University Press, 2003).

24 for distilling legal principles”.69 Boorstin instead suggested that legal historians should be “more constantly aware that law itself is part of history” and therefore “be more concerned with the relationship at any time between legal institutions and the rest of society” and less concerned “with the embryology of the professional vocabulary”.70

The first legal scholar to engage with the connections between law and society was Willard Hurst.71

Hurst was a pioneer of a new historical tradition in which legal historians analysed the legal system and its connection with social and economic development. Hurst saw connections between law and economic growth and observed that the ‘release of energy’ of the economy was the governing principle of American law, driven by broadly shared values favouring productivity, combined with market pressure in the context of natural abundance. Nevertheless, legal change was a result of

“inertia, drift and default”. Particular institutions and attitudes often survived merely because they existed; laws were perpetuated because they were not intelligently reappraised; and popular attitudes were frozen despite changes in circumstances. Change was incremental and piecemeal rather than a product of rational decision making.72

Legal historians who have followed in the footsteps of Hurst have been characterised as being part of an “economic determinist” reigning paradigm.73 Such a label, however, glosses over the important distinctions between the various scholars who have been influenced by Hurst. Lawrence Friedman is the leading light of a historical tradition that argues that law is a product of social forces. In the preface to his third edition of A History of American Law, Friedman begins by rejecting “any notion

69 Daniel Boorstin, "Tradition and Method in Legal History", Harvard Law Review, 54 (1940-41) 424 (p. 424). 70 Boorstin, "Tradition and Method in Legal History", p. 434. For other characterisations of this argument, see Morton J. Horwitz, "The Conservative Tradition in the Writing of American Legal History", American Journal of Legal History, 17 (1973), 275 and Robert W. Gordon, "J. Willard Hurst and the Common Law Tradition in American Legal Historiography", Law and Society Review, 10 (1975), 9. But see the suggestion of David Rabban that the nineteenth century writers were more complex and sophisticated than generally assumed in David M. Rabban, "The Historiography of Late Nineteenth- Century American Legal History", Theoretical Inquiries in Law, 4 (2003), 541. 71 Harry N. Scheiber, "At the Borderland of Law and Economic History: The Contributions of Willard Hurst", The American Historical Review, 75(3) (1970), 744-756 (p. 745). 72 James Willard Hurst, The Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836- 1915, 2nd ed, (Madison, WI, University of Wisconsin Press, 1984), p. xx. For a review of Hurst’s work, see Scheiber, "At the Borderland of Law and Economic History: The Contributions of Willard Hurst”, pp. 747-749. 73 Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill, NC: University of North Carolina Press, 1997).

25 that law is autonomous” and argued that law “is the product of social forces, working in society”74

Friedman argues that as a general principle, American law changed to conform to the needs, wants and pressures of the consumers of law. The primary function of law was economic growth and to

“release and harness the energy latent in the Commonwealth”.75 Law was popularly understood as a tool that citizens could use to “further their ends” and, Friedman argues, “when ends changed, so did means”.76 This applied not only to ‘economic’ cases and legislation, but also to areas of law that do not appear at first glance to have economic importance. For example, divorce laws operated to settle doubts about the ownership of family property77 and the criminal law was increasingly concerned with the protection of property and the furtherance of economic interests.78

The work of Morton Horwitz reflects a different interpretation of the links between the legal system and economic growth. Unlike Hurst and Friedman who suggest that the entrepreneurial and economic objective of the law reflected a community consensus, Horwitz argues that it enabled “emergent and entrepreneurial groups to win a disproportionate share of wealth and power in American society.”79

The legal system consciously favoured “men of commerce and industry at the expense of farmers, workers, consumers and other less powerful groups within society”.80 Thus, while Hurst and

Friedman concentrate on describing the process by which the law enabled society’s economic goals to be realised, Horwitz analyses the distribution of the economic power.

In contrast to Friedman and Hurst, Christopher Tomlins argues that the law was not consciously moulded to meet the needs of capitalism. Rather, he suggests that law evolved according to its internal institutional and logical dictates. As law evolved, it had to address the challenges that the

74 Lawrence Friedman, A History of American Law, 3rd ed. (New York: Simon & Schuster, 2005), p. ix. 75 Friedman, A History of American Law, p. 70. 76 Friedman, A History of American Law, p. 71. 77 Friedman, A History of American Law, p. 145. 78 Friedman, A History of American Law, p. 218. 79 Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977), p. Xvi. 80 Horwitz, The Transformation of American Law, p. 253.

26 rapidly changing economy presented to the legal system. Courts, using their own internal logic, crafted rules that later turned out to support the laws of “industrial capitalism”.81

More recently, William J. Novak has broadened the contours of the argument by suggesting that nineteenth-century American law was characterised by the desire of state and local governments to pass regulations to promote the public welfare. The public welfare, according to Novak, encompassed not only economic welfare, but also public health, safety and morality. Regulation for the public good was based on an assumption that the public interest was superior to private interest and that liberty and freedom were best achieved in a well-regulated society.82 Novak has been criticised on the basis that he does not adequately address the issue of enforcement of these regulations.83 This thesis therefore builds on the work of Novak by discussing the regulatory impulse of lawmakers, while also considering the important issue of the enforcement of these regulations in Nevada County and the

Gympie region.

The emergence of critical studies has contributed to new developments in legal history. Robert

Gordon describes this as “… any approach to the past that produces disturbances in the field – that inverts or scrambles familiar narratives of stasis, recovery or progress; anything that advances rival perspectives (such as those of the losers rather than the winners) for surveying developments, or that posits alternative trajectories that might have produced a very different present – in short any approach that unsettles the familiar strategies that we use to tame the past in order to normalize the present.”84 The class analysis of Horwitz fits well within this tradition. Also included are studies of gender and race. Like class, these concepts are important in legal history because they illuminate the methods and practices by which power structures were maintained and legitimised. American historians have, for a long time, written about women and gender, but similar work in legal history

81 Christopher Tomlins, Law, Labor and Ideology in the Early American Republic, (New York, NY: Cambridge University Press, 1993). 82 William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, NC: University of North Carolina Press, 1996), p. 36. 83 Harry N. Scheiber, "Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America", Yale Law Journal, 107 (1997), 823. 84 Robert W. Gordon, “Foreword: The Arrival of Critical Historicism” Stanford Law Review, 49 (1997), 1023 (p. 1024).

27 has only properly emerged in the past decade.85 Much of the work in this area concerns analysis of laws that were manifestly gendered, such as domestic relations, marriage and abortion.86 Analysis of less obviously gendered laws is not as common. One example, however, is the work of Barbara

Welke, which considers the incidence of injury on the railroads and streetcars, and the law’s response to it. She concludes that “the incidence and experience of injury, recourse to law, and legal doctrine were all dramatically shaped by gender”.87 Like critical histories based on gender, critical legal histories based on race have only begun to prosper in the last decade.88

Much of the work of legal historians of the nineteenth century has been concerned with documenting general patterns over time. This thesis is concerned with only one decade of the nineteenth century in each region. Thus, it considers not what motivated change over a long period, but why the law took the form that it did, and the practical effect of that law during the decade of study. In this sense, this thesis is grounded in the work of Hurst, Horwitz and Friedman in that the history of Nevada County reveals a strong link between the law and economic development. At the same time, however, this thesis draws on the work of critical legal historians to suggest that gender, class and racial bias in the law may account for part of the shape of the law as it applied in Nevada County.

In contrast to the American experience, legal historians in Australia have been concerned with distinguishing Australian legal history from its English heritage. Rosemary Hunter writes that

“Australian legal history has been obsessed with the issue of imperial-colonial legal relations from its foundation”.89 The dominant paradigm for understanding Australian law was that the legal history of

85 Felice Batlan, “Engendering Legal History” Law and Social Inquiry, 30 (2005), 823. 86 For example, Ariela Dubler, “In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State” Yale Law Journal, 112 (2003), 1641; Leslie Reagan, When Abortion was a Crime (Berkeley, CA: University of California Press, 1997) and more recently Stephen Robertson "Seduction, Sexual Violence and Marriage in New York City, 1886-1955," Law and History Review, 24(2) (2006) 331-74. 87 Barbara Young Welke, Recasting American Liberty: Gender, Race, Law and the Railroad Revolution, 1865-1920 (New York, NY: Cambridge University Press, 2001), p. xi. 88 Hyung-chan Kim, A Legal History of Asian Americans, 1790-1990 (Westport, CT: Greenwood Press, 1994); Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill, NC: University of North Carolina Press, 1995); Charles McLain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth Century America (Berkeley, CA: University of California Press, 1994); John Wunder, “Anti- Chinese Violence in the American West, 1850-1910”, in John McLaren ed., Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Pasadena, CA: Ninth Judicial Circuit Historical Society, 1992). For a general overview, see Richard P. Cole and Gabriel J. Chin, “Emerging from the Margins of Historical Consciousness: Chinese Immigrants and the History of American Law” Law and History Review, 17 (1999), 325. 89 Rosemary Hunter, “Australian Legal Histories in Context”, Law and History Review, 21(3) (2003), 607 (p. 608).

28 the Australian colonies was inextricably linked with the history of Britain. The 1970s saw a movement away from this traditional view. In 1971, Alex Castles published An Introduction to

Australian Legal History.90 In this book, Castles suggested that the development of Australian law did not end with the adoption of British law, but also developed locally to suit the local conditions. In

1982, Castles published his seminal work, An Australian Legal History.91 Castle’s objective in this book was to place the growth of law and legal institutions in the context of local political, economic and other factors.92 Castles argued that local conditions, including Australia’s convict legacy, its geography, smaller population, and peculiarly Australian social movements contributed to the development of Australian law. He noted, however, that there remained a general reliance on English law to develop the laws of the colonies. 93 Like the American legal historians in the Hurstian tradition, Castles placed an importance on the work of lower courts. Castles suggested that local officials, who often took the law into their own hands, affected the administration of the law more than the higher courts and legislatures.94

More recently, Bruce Kercher has built on the work of Castles. Kercher argues that although

Australian colonies were bound to follow British law, and at times had it imposed upon them, they used a wide range of legal innovations to mould the law to local circumstances. However, Australian law did not develop consistently from “frontier-style informality to rigid law administered by legal professionals”. Rather, Australian law has been characterised by “an oscillation, a movement back and forth from informal to formal law, amateurism to professionalism, from local to imperial law, pluralism to legal centralism”.95

As in the United States, Australian legal historiography has been influenced by the critical studies movement. Two of the most productive strands of inquiry in Australia concern the history of

90 Alex Castles, An Introduction to Australian Legal History (Sydney, NSW: Law Book Co., 1971). 91 Alex Castles, An Australian Legal History (Sydney, NSW: Law Book Co., 1982). 92 Castles, An Australian Legal History, p. iii. 93 Castles, An Australian Legal History, pp. 11-18. 94 Castles, An Australian Legal History, pp. 52, 67. 95 Bruce Kercher, An Unruly Child (Sydney, NSW: Allen & Unwin, 1995), p. 151.

29 indigenous peoples, and their treatment under European law,96 and histories of women and gender relations in the law.97 This thesis, therefore, builds upon the work of Castles and Kercher as well as the work that analyses the gender, racial and class biases that are entrenched in the law and perpetuated by it.

Kercher offers a broad explanation of Australian law that acknowledges the importance of this scholarship. He suggests that it is “best explained as a contest between attitudes or visions of law.”98

To begin with, Australian law was very strongly influenced by its English heritage. In some areas, such as debt recovery,99 loan securities,100 and company law,101 Kercher follows a similar approach to

Hurst, Friedman and Horwitz, by arguing that the law developed, often from local custom, to facilitate and accommodate commerce.102 These were not the only influences. The Australian system of land law was a “product of its own dry landscape, egalitarian values and neglect of Aboriginal interests”.103

Other laws, such as debt law reforms and divorce laws,104 reflected, in part, a growing liberal philosophy.105 In contrast, laws dealing with women and the Chinese enshrined racial and prejudiced attitudes.106

Kercher’s “contest between attitudes or visions” of Australian law is similar to the attempt by Harry

Scheiber to reconcile the various tensions in American law. Scheiber has suggested that an explanation of American law should embrace “tension among competing concepts of public rights and private claims rather than depicting law’s influence on society as monolithic at any moment in

96 Elizabeth Eggleston, Fear, Favour or Affection: Aborigines and The Criminal Law in Victoria, South Australia d Western Australia (Canberra, ACT: ANU Press, 1976); Henry Reynolds, The Law of the Land (Ringwood, Vic.: Penguin Books, 1987); Heather McRae, Garth Nettheim and Laura Beacroft, Aboriginal legal issues, (Sydney, NSW: Law Book Co., 1991). 97 Rosemary Hunter, “Australian Legal Histories in Context”; Enid Campbell, “Women and public functions” Adelaide Law Review, 1 (1961), 190; Judith Allen, Sex and Secrets (Melbourne, Vic.: Oxford University Press, 1990); Hilary Goldner and Diane Kirkby, “Mrs Maybe and Her Boxing Kangaroo: A Married Woman Tests Her Property Rights in Colonial New South Wales” Law and History Review, 21(3) (2003), 585. 98 Kercher, An Unruly Child, p. 204. 99 Kercher, An Unruly Child, pp. 53-54. 100 Kercher, An Unruly Child, p. 117. 101 Kercher, An Unruly Child, pp. 134-135. 102 Kercher, An Unruly Child, p. 59. 103 Kercher, An Unruly Child, p. 129. 104 Kercher, An Unruly Child, p. 137. 105 Kercher, An Unruly Child, p. 112. 106 Kercher, An Unruly Child, p. 149.

30 time”.107 This approach, Scheiber argues, would be “less dismissive of complexity and tension in the law or in legal culture”.108 This thesis answers the call of Scheiber and Kercher by identifying and explaining the competing tensions in the law in Nevada County and the Gympie region. This thesis suggests that a shifting pattern of tensions best explains the legal order in Nevada County and the

Gympie region, and that identifying the nature of this pattern illuminates important similarities between the legal experience of Nevada County and the Gympie region.

New directions in legal historiography

Transnational legal history is a neglected area in legal history. Despite the ‘transnational turn’ in other areas of history, legal historians tend to emphasise the importance of the national unit. Even

Lawrence Friedman, who has acknowledged the possibilities of drawing similarities between regions, nevertheless argues that American law is a product of American culture, peculiar to the United

States.109 Property law has been the subject of most of the transnational work and has formed the basis of a number of edited collections.110 Outside the law of property, however, little work has been done on the transnational influences. Even less work has been done outside legal specialisations to consider the operation of law as a coherent whole across national boundaries.111 Some of the best transnational work is that of historians like Stuart Banner, Lauren Benton and John Weaver. In

Weaver’s, The Great Land Rush, he compares the history of land taking across multiple jurisdictions between 1650 and 1900. Weaver observes that “powerful commonplace British and American ideas

107 Harry N. Scheiber, "Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America", Yale Law Journal, 107 (1997), 823 (p. 840). 108 Scheiber, "Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America", p. 856. 109 Friedman, A History of American Law, p. xi. 110 John McLaren, Andrew R. Buck and Nancy Wright, eds., Despotic Dominions: Property Rights in British Settler Societies (Vancouver: University of British Columbia Press, 2005); Andrew Buck, Ben Berger, Hamar Foster, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: University of British Columbia Press, 2008); Diane Kirkby and Catharine Coleborne, Law, History, Colonialism: The Reach of Empire (Manchester: Manchester University Press, 2001). 111 The work of Lauren Benton is an exception here. Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (New York: Cambridge University Press, 2002). See also the work of John M. Mackenzie in relation to game and game laws, John M. Mackenzie, The Empire of Nature: Hunting, Conservation and British Imperialism (Manchester: Manchester University Press, 1988).

31 and practices contributed to a universal story”.112 It is this view that informs part of the transnational

analysis of this thesis, but the analysis is expanded to include the areas of property, commerce and

crime. Shared ideas and practices in Gympie and Nevada County led to broadly similar legal regimes

and form part of a ‘universal story’ of law on the mining frontier.

This thesis also seeks to make a contribution to legal historiography by revealing the importance of

both the ‘formal laws’ and the ‘informal laws’ in any discussion of a legal regime. The term ‘formal

law’ is used in this thesis to refer to governmental social control, which includes statutory rules and

regulations.113 ‘Informal law’, on the other hand, refers to “informal social regularities that

individuals feel obligated to follow because of an internalized sense of duty, because of a fear of

external non-legal sanctions, or both”.114 There is a growing amount of scholarship that considers the

comparative importance of formal and informal law. The leading work is that of Robert Ellickson,

who argues that informal laws were more important than formal laws in regulating behaviour.

Ellickson’s conclusion is that in many circumstances (both in a social and economic context) social

norms are important and effective alternatives to legal regulation.115

The distinction between formal and informal law is given only cursory analysis in United States legal

historiography. One of the few historians to engage with the issue of informal law is John Phillip

Reid.116 He argues that the “legal folkways and social values learned east of the Missouri were

carried and respected west of the river.”117 It was “the taught traditions of yesteryear, not daily

112 John C. Weaver, The Great Land Rush and the Making of the Modern World, 1650-1900 (Montreal and Kingston: McGill-Queen's University Press, 2003), p. 87. See also Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge, MA: Harvard University Press, 2007) and Benton, Law and Colonial Cultures. 113 Donald Black, The Behavior of Law (New York, NY: Academic Press, 1976). 114 Richard H. McAdams, “The Origin, Development, and Regulation of Norms” Michigan Law Review, 96 (1997), 338 (p. 340). 115 For similar studies, see Lisa Bernstein, “Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry” The Journal of Legal Studies, 21(1) (1992), 115-157; Lisa Bernstein, “Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms” University of Pennsylvania Law Review, 144 (1996), 1765. On norms in a social context, see Richard McAdams, “Group Norms, Gossip and Blackmail” University of Pennsylvania Law Review, 144 (1996), 2237, (p. 2291); Cass R Sunstein, “Social Norms and Social Roles” Columbia Law Review, 96 (1996), 903; see also Dan M Kahan “Social Meaning and the Economic Analysis of Crime” Journal of Legal Studies, 27 (1998), 609; Lawrence Lessig, “Social Norms, Social Meaning and the Economic Analysis of Law: The New Chicago School” Journal of Legal Studies, 27 (1998), 661. 116 Reid, Law for the Elephant. 117 Reid, Law for the Elephant, p. 304.

32 experience on the overland trail” that determined behaviour.118 Reid’s work is important because if the attitude of the overland emigrants continued once they settled in mining communities, we can expect to see eastern legal norms reflected in both formal and informal law. Alternatively, perhaps new customs began to emerge organically as these communities developed. Outside of Reid, there is disappointingly little scholarship that discusses the nature, relationship, and dialogue between formal and informal law.119 This thesis, therefore, stands to make a contribution to the historiography of informal law and its relationship to formal law in the American west.

Informal law plays a more significant role in Australian legal historiography. Kercher, for example, acknowledges the role that informal law played in the local application of law by magistrates and justices of the peace, as well as in the enforcement of the law by the local authorities.120 Rosemary

Hunter points out that “after many years of law and society research demonstrating the difference between the law in the books and the law in action, it should hardly be surprising to find that this phenomenon is a recurring historical experience”. The existence of the “gap” between formal and informal law is, therefore, not a new revelation. Hunter notes that future research should explore the nature of this “gap”. This is the challenge for this thesis: to explore the circumstances in which, and the reasons why, the actual practice of law differs from, or reflects, the formal law; to explore the extent to which law enforcement authorities avoided formal legal outcomes by exercising discretion, and to explore the nature of the dialogue between formal and informal law.121

Approach of this thesis

In accordance with a comparative and transnational approach, this thesis is divided into three parts.

Chapter 2 introduces the legal systems of California and Queensland and explores their connected common law heritage. Part One deals with the law of mining in Nevada County (Chapter 3) and the

118 Reid, Law for the Elephant, p. 292. 119 See Peter Karsten’s criticism of US legal historiography on this point, Peter Karsten, “The CANZ approach to Legal History” Law and History Review, 21(3) (2003), 615. 120 Kercher, An Unruly Child; Bruce Kercher, “Perish or Prosper: The Law and Convict Transportation in the British Empire 1700-1850” Law and History Review, 21(3) (2003) 527; Kercher, “Commerce and the Development of Contract Law in Early New South Wales”. 121 Rosemary Hunter, “Australian Legal Histories in Context”. For an example of this approach, see Peter Karsten, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora – The United States, Canada, Australia, and New Zealand, 1600-1900 (Cambridge, UK: Cambridge University Press, 2002).

33 Gympie region (Chapter 4) and concludes with a transnational comparison of the law of mining in each region (Chapter 5). Part Two (Chapters 6, 7 and 8) considers commercial law, and Part Three

(Chapters 9, 10 and 11) considers criminal law. Both follow the same structure as Part One. The final chapter takes a broad view of the legal order as it existed in both Nevada County and the Gympie region and argues not only that the legal order in both regions was characterised by a shifting pattern of tensions, but also that each region experienced a similar pattern of similar tensions, motivated in part by their shared history, exchange of legal ideas and customs, and the circulation of moral, economic and environmental ideas.

34 CHAPTER 2

LEGAL REGIMES ACROSS THE PACIFIC

The United States and Australia of the nineteenth century were both products of the British Empire.

Both nations were moulded by the tentacles of the English common law, which reached out from

London and across the world’s great oceans. Across these vast distances the law floated in the pages of Blackstone, the English law reports, and the remembered legal experience of settlers themselves.

The law that arrived in the English colonies in Australia and the United States was not an exact replica of the law that existed in London, nor did it operate the same way in America as it did in

Australia. Both colonies inherited English law at different stages of its development and sophistication, and colonial law was moulded by the local circumstances, economics, politics, society and historical context. Despite differences in the process of the adoption of English law in California and Queensland, the legal regimes in each region were constructed on the bedrock of English law.

This chapter outlines the process of the adoption of English law in Australia and the United States and suggests that although each region had its legal peculiarities, the legal regimes in California and

Queensland were united by English law and were both part of a wider pattern of frontier law across the common law world.

Adoption of English law in the United States

English law was exported across the Atlantic into the first American colonies. This law was not transported unchanged. Rather, only those aspects of English law that were suited to conditions in the new American colonies were adopted. This process of adoption operated through the remembered legal and customary traditions of the early settlers, and transportation of law in the pages of

Blackstone and the law reports.

It is clear that British authorities contemplated that English law would apply in the American colonies. Early colonial charters allowed the governing authority to make its own laws, but these

35 were to mirror, as close as possible, the laws that existed in England.1 The Second Charter of Virginia in 1609 provided that the Virginia Company had the power to make laws “... as near as conveniently may be, be agreeable to the Laws, Statutes, Government, and Policy of this our Realm of England.”2

The Charter of Massachusetts Bay in 1629 granted to the Colony the power to make laws as long as they “... be not contrarie or repugnant to the Lawes and Statuts of this our Realme of England” (sic).3

The 1681 Charter for the Province of Pennsylvania provided that that lawmaking “... bee not repugnant nor contrary, but soe farre as conveniently may bee agreeable with the Lawes of our

Kingdome of England” (sic).4

Nevertheless, the law in these colonies did not directly replicate English law. In 1829, Justice Joseph

Story wrote that “the common law of England is not to be taken in all respect to be that of America.

Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation”.5 This interpretation simplifies the process of reception. The content of the law differed from colony to colony, partly because the period of settlement in the original thirteen colonies extended over a century, and partly because the background of the settlers, and the social and economic conditions varied widely from colony to colony.6 In many colonies, the development of law was a contest between English law and other received traditions and religious practices.7 George Haskins, in a

1 Ford W. Hall, “The Common Law: An Account of its Reception in the United States” Vanderbilt Law Review 4 (1950- 1951) 791 (p. 791). 2 The Second Charter of Virginia; May 23, 1609, The Avalon Project at Yale Law School, [accessed 26 September 2008]; Peter Charles Hoffer, Law and People in Colonial America (Baltimore: John Hopkins University Press, 1992), p. 13. 3 The Charter of Massachusetts Bay, 1629, The Avalon Project at Yale Law School. 4 Charter for the Province of Pennsylvania, The Avalon Project at Yale Law School. This type of language was also included in the Charter of New England (1620), the Charter of Maryland (1632), and the Charter of Rhode Island and Providence Plantations (1663). See also Hall, “The Common Law: An Account of its Reception in the United States”, p. 792. On the nature of repugnancy, see Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004). On the colonial charters more generally, see Christopher Tomlins, “The Legal Cartography of Colonization, the legal polyphony of settlement: English intrusions on the American mainland in the seventeenth century” Law and Social Enquiry 26 (Spring 2001) 315 (pp. 328-347). 5 Van Ness v Pacard, 27 US (2 pet.) 137, 143-44 (1829). See also Commonwealth v Chapman 54 Mass, (13 Met.) 69 (1847). See also Myra K. Saunders, “California Legal History: The California Constitution of 1849” Law Library Journal 90 (Summer 1998) 447. 6 Hall, “The Common Law: An Account of its Reception in the United States”, p. 793; George L. Haskin, “Reception of the Common Law in Seventeenth-Century Massachusetts: A Case Study” in George Athan Billias ed. Law and Authority in Colonial America (New York: Dover Publications, 1965), p. 17. 7 John M. Lund, “The Contested Will of ‘Goodman Penn’: Anglo-New England politics, culture and legalities, 1688-1716” Law and History Review 27 (Fall 2008) 549.

36 study of Massachusetts Bay, suggested that “the conditions of settlement and of development within each colony meant that each evolved its own individual legal system.”8 Law was a combination of indigenous jurisprudence, developed to cope with new problems of social life in the settlements, and a type of “remembered” English law.9 Dean Charles J. Hilkey argued that religion and an “indigenous local element” informed the colonial legal system of Massachusetts Bay.10 Julius Goebel, in a study of the Plymouth Colony, found that the law was the customary law of the local courts that the colonists had known in England.11

The American War of Independence represented a radical break with the old legal order. It marked the end of English royal authority and the development of a new political system.12 By the end of the eighteenth century, however, the common law had gained a strong enough foothold in America to withstand hostility to England, and Americans in the post revolutionary period maintained a strong commitment to English law.13 In September 1774, the Continental Congress declared that “the respective colonies are entitled to the common law of England”14 and Morton Horwitz writes that

“none of the persistent hostility to English legislation that prevailed throughout the colonial period seems to have influenced their [Americans’] commitment to common law doctrines”.15

When the original colonies became states in their own right, their commitment to English law was reflected in the formal adoption of English law in their constitutions and early legislation. Virginia,

8 George Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), p. 6. See also the influence of Dutch inheritance practices in New York, David Narrett, Inheritance and Family: Life in Colonial New York City (Ithaca, NY: Cornell University Press, 1992). 9 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760- 1830 (Cambridge, MA: Harvard University Press, 1975). See pp. 36-44 on the Puritan origins of law in New England. 10 Dean Charles J. Hilkey, “Legal Developments in Colonial Massachusetts, 1630-1686” Columbia University Studies in History, Economics and Public Law 37 (1910) 160. 11 Julius Goebel, “King’s Law and Local Customs in Seventeenth Century New England” Columbia Law Review 31 (1931) 416; Mark de Wolfe Howe, “The Sources and Nature of Law in Colonial Massachusetts” in George Athan Billias ed. Law and Authority in Colonial America, (New York: Dover Publications, 1965). 12 Oscar Handlin and Mary Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861, 1st ed. 1947 (Cambridge, MA: Harvard University Press, 1969), p. 3. 13 Hall, “The Common Law: An Account of its Reception in the United States”, p. 797; Friedman, A History of American Law, pp. 66-67. 14 Hall, “The Common Law: An Account of its Reception in the United States”, p. 798. 15 Horwitz, The Transformation of American Law, p. 4.

37 for example, passed the following provision, which was later copied by mid-Western and Western states:

And be it further ordained, that the common law of England, all statutes or acts of parliament

made in aid of the common law prior to the fourth year of the reign of King James the first,

and which are of a general nature, not local to that kingdom, together with the several acts of

the general assembly of this colony now in force, so far as the same may consist with the

several ordinances, declarations and resolutions of the general convention, shall be the rule of

decision, and shall be considered in full force, until the same shall be altered by the

legislative power of the colony.16 (emphasis added)

Other states adopted only so much of the law of England as was already in operation in each former colony. The New Jersey constitution provided, for example, that “... the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force until they shall be altered by a future law ...” (emphasis added).17 Similar approaches were followed by Delaware, Maryland, Massachusetts, New Hampshire, New York, North Carolina and

Pennsylvania.18 This method of reception set a pattern for other mid-western states. The Indiana territorial legislature adopted most of the Virginia reception statute in 1807, as did Illinois and Ohio and Kentucky. As civilisation expanded further to the west, most of these new states also adopted the common law in a similar manner.19

At the same time as each state expressly adopted principles of English law, American law continued to be anglicised by the absorption of English rules through English legal texts. Daniel Boorstin has argued that Blackstone’s Commentaries provided “ambitious young Americans” with all the tools that they needed in order to make a living from the law and noted that the Commentaries sold nearly as

16 Chapter 5, Section 6, Ordinances of May 1776, in W. Hening ed., Statutes at Large of Virginia 9 127 (1821). 17 New Jersey Constitution (1776), Article XXII, The Avalon Project at Yale Law School, [accessed 26 September 2008]. 18 Hall, “The Common Law: An Account of its Reception in the United States”, p. 799; See also Nelson, Americanization of the Common Law; Friedman, A History of American Law, p. 67. 19 Hall, “The Common Law: An Account of its Reception in the United States”, p. 804.

38 many copies in the American colonies as they did in England.20 Lawrence Friedman suggests that

“only from England was there a source and supply of law that American lawyers could use without translation”.21 Most legal literature was sourced from England and an early American lawyer’s law library was filled with English texts. American jurisprudence was nurtured by English precedent.

The first American casebook on contracts by Christopher C. Langdell cited 310 English cases and only 22 from America.22 In the late eighteenth century when Blackstone’s Commentaries was published, “Americans were among his most avid customers”.23 For American lawyers, “England was the standard. English books, judges, ideas, were more available than the older colonial tradition.”24

Creation of the Californian legal regime

California was settled in 1769 by the Spanish, and continued to be a Spanish colony until the successful Mexican revolution in 1821. Although notionally under Spanish law, Spanish California was never more than a military and missionary outpost. None of the traditional Spanish colonial institutions were established in California.25 After independence in 1821, Mexico slowly implemented a modern judicial system, but these reforms had little effect in Mexican California. The legal system continued to operate as on other Spanish colonial frontiers. The most important local official was an alcade, a locally elected community official who was effectively both a mayor and town judge. Disputes were decided by a trial before an alcade with an option of appeal to the governor.26

20 Daniel Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries, 1st ed. 1941, (Chicago, IL: University of Chicago Press, 1996), p. Xiii. For a biography of Blackstone, see Wilfrid Prest, William Blackstone: law and letters in the eighteenth century (Oxford: Oxford University Press, 2008). 21 Friedman, A History of American Law, p. 3. 22 Bruce A. Kimball, “Langdell on Contracts and Legal Reasoning: Correcting the Holmesian Caricature” Law and History Review 25(2) (Summer 2007) 353. 23 Friedman, A History of American Law, p. 59. 24 Friedman, A History of American Law, p. 4. 25 David J. Langum, Law and Community on the Mexican California Frontier (Norman: University of Oklahoma Press, 1987), pp. 13, 32. 26 Langum, Law and Community on the Mexican California Frontier, pp. 30-39; Edwin W. Young, “Adoption of Common Law in California” American Journal of Legal History 4 (1960) 355 (p. 358).

39 By the middle of the 1840s, President James Polk had turned his eye to California. After diplomatic attempts to annex territory in the southwest, and Mexican military incursions into the new state of

Texas in 1845, the United States declared war on Mexico on 13 May 1846. American forces entered

Mexico City on 13 September 1847 and peace negotiations at the village of Guadalupe Hidalgo led to the Treaty of Guadalupe Hidalgo being signed on 2 February 1848. In the treaty, Mexico gave up all claims to Texas and ceded Northern Mexico and California to the United States.27 California became an American territory with a “thinly staffed, badly financed military government that had been superimposed on the very slight existing local government inherited from Mexico.”28

From the American perspective, California in the late 1840s was a geographical and legal frontier.

Frederick Jackson Turner, in his famous essay on the significance of the frontier in American history, argued that the process of western settlement began with the fur hunters, the pioneer farmers and then the more substantial farmers.29 Although it is true that during the first half of the nineteenth century, a small number of fur-traders and trappers established themselves in California, it was not until the discovery of gold by James Marshall at Sutter’s Mill in 1848 that there was a marked increase in

American (and foreign) immigration.30 In California, miners led the process of American settlement.31

American immigration meant that the legal regime that existed in California under Mexican rule crashed headlong into the American legal system that was carried by new settlers. At a technical level, the rules of international law required that “the laws of a ceded country remain in force until changed by the conquering or acquiring power”.32 Mexican law therefore remained the law of

27 Paul W. Gates, History of Public Land Law Development (Washington: Public Land Law Review Commission, 1968), p. 83; Paul, California Gold, p. 4. 28 Paul, California Gold, p. 23. 29 Turner, “The Significance of the Frontier in American History”, pp. 14-22. 30 Lyndley Bynum, “Laws for the Better Government of California, 1848” The Pacific Historical Review 2(3) (September 1933), 279-291 (p. 271). 31 Rodman Wilson Paul, Mining Frontiers of the Far West, 1848-1880 (New York: Holt, Rinehart and Winston, 1963), p. 2; Although note that the first half of the nineteenth century did see a small number of fur-traders and trappers establish themselves in the region, see Lyndley Bynum, “Laws for the Better Government of California, 1848”, p. 271. 32 De Grasse B, Fowler v Peter Smith and Mary A. Smith 2 Cal. 39, 1852 WL 507 (Cal.) (1852) at p. 5 per Justice Murray. See also Blankard v. Galdy (1693) Holt KB 341; Campbell v. Hall (1774) Lofft 655; Beaumont v. Barrett (1836) 1 Moo PC 59.

40 California until 1850 when the Californian legislature determined otherwise. At a practical level, with the exception of certain political structures, such as the position of alcade, Mexican law did not apply as a coherent and readily ascertainable body of law. Accordingly, the Supreme Court of California observed in 1852 that “the body of Mexican laws had been extended over it [California], but there was nothing upon which they could act, and they soon fell into disuse”. Law was administered

“without much regard to the forms of law, which were scarcely alike in any two districts”.33

Mexican laws were written in a foreign language and appeared to many American settlers to be arbitrary. From the perspective of the new settlers in California who were familiar with a common law legal system based on the English model, the Mexican law was viewed with contempt. In a preface to the first volume of California Law Reports, Nathaniel Bennett, writing in 1851, noted that

“it can scarcely be said that any laws were in existence further than such as were upheld by custom and tradition”.34 Similarly, Justice Hugh C. Murray wrote that to the new settlers in California, “the laws of Mexico, written in a different language, and founded on a different system of jurisprudence, were to them a sealed book”. American settlers did not find a legal system that they could readily understand and therefore saw the region as a legal vacuum in which “they were compelled to adopt customs for their own government”.35 The settlers “looked for a speedy appearance of the forms of jurisprudence they had known at home”.36 Instead of following Mexican law, Californian settlers transported legal rules and lessons that they had learned in the East into California.37 At a practical level, Californian law quickly took on the appearance of American law that applied in the East and, by association, English law.

33 De Grasse B, Fowler v Peter Smith and Mary A. Smith at p. 6; See generally Langum, Law and Community on the Mexican California Frontier; Myra K. Saunders, “California Legal History: A Review of Spanish and Mexican Legal Institutions” Law Library Journal 87 (Summer 1993), 487. 34 Nathaniel Bennett, Reports of Cases determined in the Supreme Court of the State of California, Volume I, (San Francisco: Bancroft-Whitney, 1906), p. vi. 35 De Grasse B, Fowler v Peter Smith and Mary A. Smith, p. 6. 36 Lyndley Bynum, “Laws for the Better Government of California, 1848”, pp. 280-281. See generally Message from the President of the United States, transmitting information in answer to a resolution of the House on the 31st of December, 1849, on the subject of California and New Mexico,” House Executive Document 17, 733, 31st Cong., I sess.; Edwin W. Young, “Adoption of Common Law in California”, p. 359. 37 See generally Reid, Law for the Elephant.

41 After the cession of California to the United States, it became clear that California needed, and the population desired, a genuine territorial government.38 A Constitution was drafted and a government was elected. A territorial government was in place by the end of 1849 and the first legislature met on

15 December 1849.39 The weakness of this constitution was that it did not specify any law that was to operate in California in the place of Mexican law. The decision was left for the Californian legislature.

It was not inevitable that English law would be adopted in California. In December 1849, in his first address to the legislature, Governor Peter Burnett recommended that California adopt the English law of evidence, commerce, and crimes and misdemeanours, but adopt the civil code of Louisiana and the

Louisiana Code of Practice. The Governor argued that “these codes, it is thought, would combine the best features of both the Civil and Common Law, and at the same time, omit the most objectionable portions of each”.40 In contrast, Senator Douglass of Stockton, suggested on 1 February 1850 that the legislature “retain, in its substantial elements, the system of the Civil Law ... in preference to the

English Common Law”.41 One leading Californian legal historian has argued that the “leading members of the California Bar considered the legal system of Spain to be quite adequate to the exigencies of a nascent and already expanding state”.42

The English common law also had strong supporters, notably J. C. Brackett, who introduced the following resolution into the legislative assembly:

That the Committee on the Judiciary be and they are instructed to report to this house a brief

and comprehensive act, substantially enacting that the Common Law of England, and all

statutes and acts of Parliament down to a certain reign, which are of a general nature ... which

common law and statutes are not repugnant to or inconsistent with the constitution of the

38 Lyndley Bynum, “Laws for the Better Government of California, 1848”; Myra K. Saunders, “California Legal History: A Review of Spanish and Mexican Legal Institutions”. 39 Paul, California Gold, p. 200; Bennett, Reports of Cases determined in the Supreme Court of the State of California, p. vii. 40 Journal of the Senate of the State of California (1850), p. 33. 41 Journal of the Senate of the State of California (1850), p. 126. 42 Young, “Adoption of Common Law in California”, p. 356.

42 United States, the constitution of this state, and statute laws that now are or hereafter may be

enacted, shall henceforth be the rule of action and decision in the State of California.43

On 27 February 1850 the Senate Judiciary Committee, chaired by Elisha Crosby and assisted by

Nathaniel Bennett and Thomas Vermeule, reported that “nowhere do all great branches of national wealth thrive as vigorously and prosper to so great an extent as they do under the countenance and protection of the Common Law”.44 The report referred to the political history of the United States, the fact that the common law operated in 29 of the 30 states in the Union, and also referred to the practical problem of obtaining the necessary texts if civil law was adopted in California.45 After the

Senate and Assembly received the report, Brackett presented his common law bill to the house. It provided that “the Common Law of England, so far as it is not repugnant to or inconsistent with the

Constitution of the United States, or the Constitution or laws of the State of California, shall be the rule of decision in all the Courts of this State”.46 It was accepted and signed into law by the Governor on 17 April 1850.

The precise content of the common law that operated in California was not clear. To begin with, the reference to the ‘common law’ appeared to include only that unwritten law that was embodied in precedent; it did not refer to English legislation. Further, notwithstanding the adoption of ‘English’ common law, the early decisions of the Californian Supreme Court relied on both American and

English precedent, and where possible deferred to decisions from courts of the Eastern United States.

In April 1854, for example, in a Supreme Court case dealing with the constitutionality of a retrospective law, Justice Alexander Wells applied the common law, ruling that “we but concur with the great majority of the Judges in England and America, when we assert, that it is well established not only as a doctrine of the common law, but as a principle of general jurisprudence, that no Statute shall be so construed as to give it a retrospective effect”. However, in determining the precise content of the common law rule, Justice Wells found that it was not necessary to “go to the civil law of Rome,

43 Journal of the Assembly of the State of California (1850), p. 723. See also Young, “Adoption of Common Law in California”, p. 360. 44 Appendix to the Journal of the Senate of the State of California (1850), p. 469. 45 Young, “Adoption of Common Law in California”, p. 363. 46 An Act adopting the Common Law, Ch. 95, Laws of the State of California, 1st session (1850).

43 the code of France, or the common law of England. The best authorities in American jurisprudence

have approved of and maintained the doctrine we assert”.47 Similarly, in January 1853, Chief Justice

Murray, in a case of public nuisance, ruled that “in the absence of any legislation on the subject, we

are compelled to fall back upon the rules of the common law”, but when determining the content of

the law, held that “this point has been so well settled in the courts of New York and New Jersey, that a

reference to those authorities is all that is necessary to determine the present case”.48 Thus, the

reference to “English” common law was interpreted as that system of unwritten law, developed

through precedent that had English origins, that was applied in both England and the United States.

Mexican law continued to apply where transactions or dealings took place prior to the adoption of the

common law. The Supreme Court of California, for example, did not retreat from applying Mexican

law in reaching a decision, particularly in relation to the sale or transfer of land, and contracts

executed prior to April 1850.49 However, the Court was not always unanimous in its application of

Mexican law. Justice Murray, in delivering a judgment in relation to the sale of land prior to the

adoption of the common law in California held that “there are doubtless many cases arising to which

it will be the duty of the Courts to apply the rules of Mexican law, but this is not one of them”.50 In

another case between the same parties, Justices Solomon Hydenfeldt and Alexander Anderson held

that “it must, therefore, be considered beyond dispute, that all contracts made here before 22d April,

1850, must have their effect and construction by the rules of the civil law”.51 Plainly, there was an

element of confusion as to the extent of the application of Mexican law, but it was clearly recognised

by all judges that Mexican law was an important element in the Californian legal system.

47 The People ex rel. Isaac N. Thorne et al. v John C. Hayes, the City of San Francisco and P A Morse, D J Tallant, William Hooper, B C Saunders 4 Cal 127, 1854 WL 669 (Cal.) (1854) at p. 6. 48 Pascal Surocco et al. v John W. Geary 3 Cal 69, 1853 WL 639 (Cal.) (1853), p. 3. 49 See, for example, Cohas v Raisin and Legris 3 Cal 443 where Mexican law was applied to determine ownership of land; Clarkson and Vanderslice v Julian Hanks 4 Cal 47 where Mexican law was applied to determine the nature of title conveyed by a land grant; James Lick v Hugh O’Donnell 3 Cal 59 where implicit in the reasoning of the court was the fact that a deed was valid under Mexican law; Tohler v Folsom et al 1 Cal 207 in relation to the legality of a transfer of land; Suñol et al v Hepburn et al 1 Cal 254 and Woodworth v Fulton 1 Cal 295 where the Supreme Court considered concepts of possession of land under Mexican law; Hoen v Simmons 1 Cal 119 in relation to a transfer of land to be executed in writing. See also Stowell v Simmons et al 1 Cal 452 and Macondray v Simmons et al 1 Cal 393 in relation to liens over buildings; Panand v Jones 1 Cal 488 in relation to the validity of a will; Harman v Harman 1 Cal 215 in relation to the legality of a marriage under Mexican law. 50 De Grasse B, Fowler v Peter Smith and Mary A. Smith at p. 8 per Justice Murray. 51 De Grasse B, Fowler v Peter Smith and Mary A. Smith 2 Cal 568, 1852 WL 617 (Cal.) (1852) at p. 1 per Justices Hydenfeldt and Anderson.

44 The law in California, therefore, was a mixture of Mexican law (particularly in relation to land titles), and a common law which was informed both by English law and American law as modified by the

Eastern colonial experience. The Californian legal system was a product of regional, national, and international influences. The following chapters will suggest that in relation to specific commercial, criminal and property laws, the Californian legal regime was informed by local custom, and also by statute law, some of which was indigenous to California, other parts of which were adopted from other American states and from overseas.

The reception of the common law in Australia

International law recognised three ways of acquiring sovereignty over land: conquest; cession; and occupation of territory that was considered to belong to no-one (the principle of terra nullius). In contrast to California, which was acquired by cession, sovereignty by the English Crown was based on the legal principle of terra nullius. In its purest form, this doctrine permitted the acquisition of land that was uninhabited, but its application was expanded to justify the acquisition of inhabited territory by occupation where the inhabitants were ‘backward’ or the lands were uncultivated.52 Thus, although Australia was occupied by aboriginal tribes at the time of settlement, these tribes were regarded in law as being “so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society”.53 Put another way, the English settlers did not recognise the aboriginal occupation of the land as being anything that amounted to ownership of the land54 and English law was presumed to extend over the Colony of New South Wales from the moment of settlement.55 Alex Castles writes that the laws of the British Empire were “honed and refined by the experiences involved in the regulation of colonial affairs”. If the early colonial experience in Virginia and Massachusetts was the first foray into empire, the experience of the colony of New South Wales and the later Australian

52 Mabo v Queensland (No 2) [1992] HCA 23 per Brennan J at para [33]. 53 Mabo v Queensland (No 2) per Brennan J at para [41]. See also In re Southern Rhodesia [1919] AC 211. 54 Castles, An Australian Legal History, p. 20. 55 Kercher, Debt, seduction, and other disasters: the birth of civil law in convict New South Wales (Sydney, NSW: Federation Press, 1996), p. 2.

45 colonies was a more sophisticated attempt, moulded by its American experience. Throughout the eighteenth century, British governments tightened their hold on their colonies.56

From the time of the first settlement in New South Wales, it was assumed that English law would apply in the Australian colonies.57 Prior to embarking for Australia, Governor Arthur Phillip remarked that “the laws of this country will, of course, be introduced in [New] South Wales”.58 The problem of the reception of English law in the Australian colonies rested on the application of principles of international law and received little clarification in any legislation that related to the new

Australian colony. The New South Wales Act 1787 established the Court of Criminal Jurisdiction in the new colony to deal with serious criminal offences. The Court was responsible “for the trial and punishment of all such outrages and misbehaviours as, if committed within this realm, would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanour”.59 The First Charter of Justice for New South Wales, which created a court of civil jurisdiction, did not specify the type of law that would apply, and the Court of Civil Jurisdiction operated on the basis that English law applied. Richard Atkins, one of the early judge advocates in the colony stated in 1801 that “in a general point of view, all laws now in force in England may be under local Regulations, admissible in its Colonies.”60 Any confusion as to the applicability of

English law was resolved by the colonial courts, with a right of appeal to the Privy Council. The time and expense of an appeal, however, meant that the courts of early New South Wales effectively had broad power to determine the content of local law.61

It was one thing for English law to operate in New South Wales, but another entirely for that law to be applied uniformly and accurately. Alex Castles argued that “the simple lack of authoritative legal texts and law reports in New South Wales, particularly in the first years after settlement, clearly

56 Castles, An Australian Legal History, pp. 1-4. 57 Castles, An Australian Legal History, p. 378. 58 Phillip’s Views on the Conduct of the Expedition and the Treatment of Convicts, quoted in Castles, An Australian Legal History, p. 24. 59 New South Wales Act 1787 (UK) 27 Geo. III, c. 2; Castles, An Australian legal History, p. 46; Kercher, Debt, Seduction & Other Disasters, p. 4. 60 Kercher, Debt, Seduction & other Disasters, p. 3. 61 Kercher, Debt, Seduction & other Disasters, p. 2.

46 affected the capacity even of conscientious legal officials to apply some laws along English lines”.

For example, David Collins, who was the first Judge Advocate, procured a small law library upon leaving England, but was soon requesting copies of essential law reports, texts and copies of British statutes.62

Nothing in the Act of 1787 or the Charter of Justice provided the Governor with any law making power, but this did not prevent Governors of New South Wales from exercising “powers that were often clearly legislative in character”, including proclamations dealing with forgery, treatment of aborigines, and licensing regulations.63 Ellis Bent, another colonial judge advocate wrote in 1815 that

“a Governor of this Colony claims and exercises a power to make Laws in this Colony, not merely bye-laws and police regulations, but general laws, upon all subjects, intending to be binding upon all classes, highly penal in their consequence, and in many instances directly contrary to the spirit and principles of the law of England”.64 As Bruce Kercher observes, the legal systems of England and

New South Wales were only “loosely connected”. Legal officials had “a great deal of practical autonomy” as a result of the distance from London and “a good deal of the day-to-day control of colonial affairs had to be left to the administrators on the spot”. New rules of law could be accepted in New South Wales “regardless of Imperial views of legality”.65

It was not until 1823 that the Colony of New South Wales received a form of legislature (albeit an unelected one). Under the New South Wales Act 1823 (UK),66 the Governor of the Colony of New

South Wales was given the power to initiate legislation, which had to be approved first by the Chief

Justice and then by a council of between 5 and 7 persons who were nominated by the Crown. The legislation could only be passed if it was certified that it was “not repugnant to the Laws of England, but is consistent with such Laws, so far as the Circumstances of the said Colony will admit”.67 The

62 Castles, An Australian Legal History, p. 382. 63 Castles, An Australian Legal History, pp. 35-36; Kercher, Debt, Seduction & other Disasters, p. 6. 64 Kercher, Debt, Seduction & other Disasters, p. 7. 65 Kercher, Debt, Seduction & other Disasters, p. 9; Castles, An Australian Legal History, p. 33. 66 New South Wales Act 1823 (UK) 4 Geo. IV, c. 96. 67 Section 29, New South Wales Act 1823 (UK); Castles, An Australian Legal History, p. 131; Kercher, An Unruly Child, pp. 69-72.

47 1823 legislation also created the Supreme Court of New South Wales, which was given both civil and criminal jurisdiction. A decision of the Supreme Court could be appealed to the Governor, and then to the Privy Council.68

English law continued to evolve through the nineteenth century and as a consequence early Australian lawyers questioned the extent to which English legal developments were automatically incorporated into colonial law. The first Attorney-General of the Colony, Saxe Bannister, argued that the final date for the reception of British statutes was 1788. Chief Justice Francis Forbes, on the other hand, argued that British statutes could be received up until the time that a local legislature was established (which he argued was in 1823).69 In an 1828 opinion, Forbes argued that “[w]ith respect to the application of

English Statutes generally to this Colony, it has always been assumed by this Court that all statutes of a general character passed before the establishment of a local legislature in the Colony must be taken as a part of the Statute law which is imported into this Settlement”.70 The position taken by Chief

Justice Forbes is particularly interesting because Forbes cited the American colonial experience, including a 1764 case from the Supreme Court of New York.71 This reference suggests that even at this early state, Australian law was influenced by a multitude of international forces. The controversy was resolved in 1828 when the Australian Courts Act 1828 (UK) was passed that set the formal date of reception of English law as 25 July 1828. This Act provided that “all laws and statutes in force within the Realm of England at the time of the passing of this Act ... shall be applied in the administration of justice in the courts of New South Wales and Van Diemen’s Land respectively, so far as the same can be applied within the said colonies”.72

English law provided the building blocks for law in New South Wales, but the distance from London, combined with the effect of the directions issued by Governors prior to 1823, and the presence of a local legislature from 1823, meant that in some respects New South Wales developed a type of

68 Kercher, An Unruly Child, p. 71. 69 Castles, An Australian Legal History, p. 394. 70 Brown v Mannix, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462 reproduced in Decisions of the Superior Courts of New South Wales, 1788-1899, < http://www.law.mq.edu.au/scnsw/Cases1827- 28/html/brown_v_mannix__1828.htm> [accessed 2 November 2009]. 71 Castles, An Australian Legal History, p. 395. 72 Australian Courts Act 1828 (UK) 9 Geo IV c. 83.

48 indigenous jurisprudence. In an extensive review of colonial law in New South Wales, Bruce Kercher has cautioned not to exaggerate the distinctive nature of New South Wales law, but nevertheless discerned “a genuinely innovative streak in the legal creations of the governors and judges of early

New South Wales”.73

Creation of the Queensland legal regime

The district of Moreton Bay was discovered by Europeans in May 1770,74 but it was not until the

1820s that the area was settled. A penal settlement was first established at Redcliffe and was moved to Brisbane in 1825.75 By 1830 the district of Moreton Bay had grown to over 1,000 people, most of whom were convicts.76 Free settlers began to enter the district from around 1840 onwards and on 10

February 1842, Governor Gipps proclaimed that Moreton Bay was no longer to be a penal settlement.77 Everyday legal matters were heard by a Court of Petty Sessions, constituted by a Police

Magistrate and two other lay justices. Minor civil claims were heard by a Small Debts Court. Larger civil and criminal matters were heard by the Supreme Court in Sydney. The first Brisbane Circuit

Court was not held until May 1850.78 Throughout this period, the Moreton Bay district was part of the colony of New South Wales.

In June 1859, Queen Victoria authorised the creation of the Colony of Queensland and appointed Sir

George Bowen as Governor. The laws that applied in New South Wales continued to apply in the new Colony of Queensland. The Letters Patent provided that on and from 6 June 1859 “such laws and ordinances as are now in force in our said colony of New South Wales and its dependencies ...

73 Kercher, Debt, Seduction & other Disasters, p. 216. 74 G Arnold Wood, The Discovery of Australia (Melbourne, Vic.: MacMillan, 1969), p. 296. 75 J G Steele, Brisbane Town in Convict Days 1824-1842 (St Lucia: University of Queensland Press, 1975), p. 27. 76 Steele, Brisbane Town in Convict Days 1824-1842, p. xxii. 77 Frank Crowley, Colonial Australia – A Documentary History, vol 2, (West Melbourne, Vic.: Thomas Nelson, 1980), pp. 30-31. 78 Bruce McPherson, The Supreme Court of Queensland, 1859-1960: History, Jurisdiction, Procedure, (Sydney, NSW: Butterworths, 1989), pp. 6-7.

49 shall hereafter be in force in our said colony of Queensland”.79 Six months later, the Colony of

Queensland was proclaimed.80

There is very little academic discussion as to the adoption of New South Wales law in Queensland.

This may be because the adoption of the law of New South Wales was relatively uncontroversial.

Queensland settlers had lived under the auspices of New South Wales law since the first settlement of

Moreton Bay and the adoption of New South Wales law in 1859 did not lead to any significant legal change in Queensland. Indeed, at separation the only judge in Queensland, Alfred Lutwyche, held his commission as a Judge of the Supreme Court of New South Wales (although his jurisdiction was only exercisable in Queensland).81

From a technical perspective, however, the adoption of New South Wales law in Queensland deserves attention. In many of the early decisions of the Queensland Supreme Court, Chief Justice James

Cockle and Justice Lutwyche referred, without hesitation, to the New South Wales law that operated in Queensland. Implicit in their judgements, however, was a three stage process to determine the relevant law: the first was to determine the English law that was received into New South Wales at

1828; the second step was to determine whether that law had been amended or altered by the passage of New South Wales legislation between 1828 and 1859; and the third step was to determine whether any laws of Queensland passed after 1859 had altered the New South Wales law. This was rarely raised to the level of a conscious process of deduction, but one rare case occurred in 1862. In Walsh v

Kent, Justice Lutwyche considered the application of various laws relating to masters and servants. In finding that the English law continued to be in force in Queensland, his Honour observed that:

The only Act, therefore, of New South Wales, relating to masters and servants which was in

force when Moreton Bay was erected into a separate colony was 20 Vic. No 28 and this was

repealed by the Queensland statute 25 Vic. No 11.

79 Letters Patent erecting Colony of Queensland 6 June 1859 (UK). 80 Queensland Government Gazette 1 (1859) 1. 81 McPherson, The Supreme Court of Queensland, p. 28.

50 None of the Acts which I have enumerated profess, in terms, to impeach 5 Eliz. c. 4 [the

English legislation], and it could only be repealed by implication if its provisions were

inconsistent with those of any colonial act now in force.82

English law was therefore not adopted directly into Queensland. Rather, English law was adopted, subject to modifications made by the New South Wales legislature and courts. Analogous to the

Californian regime, the Queensland legal regime was a combination of English law, New South

Wales law, and statute law that was passed in Queensland after 1859. The following chapters suggest that a great deal of this statute law was developed by reference not only to the experience in the other

Australian colonies, but also to legal developments overseas and in response to social and political movements that crossed national borders.

Legal regimes across the Pacific

The Gympie Region, located north of Brisbane on the Queensland frontier, and Nevada County, perched in the foothills of the Sierra-Nevada mountain range in California, were both outposts on the

Australian and American frontiers, but they were also connected across time and space by their common legal heritage. California was a settled region when English law was received by legislative enactment. English common law was imposed on California in the context of an existing Mexican legal system. The law that was applied was a combination of English precedent, and the common law that had been developed in the Eastern states out of the American colonial experience. The development of statute law was left up to the Californian legislature, resulting in a flurry of legislative activity in the first half of the 1850s. In contrast, in the colony of New South Wales all the laws of

England that were applicable to the new colony were automatically in force. This included both case law and statute law. In 1859, Queensland inherited English law as modified in New South Wales.

The technical differences in the process of the adoption of the common law in both regions masks the practical similarities between the two legal systems. In both regions, the English legal system

82 Walsh v Kent Queensland Supreme Court Reports 1 (1862) 44 per Lutwych J at 47. For present day examples see Re Feez Ruthning’s Bill of Costs 1 Qd R 55 at 92 per McPherson J; R v McDonnell ex parte Attorney General; R v Armonstrong ex parte Attorney General 2 Qd R 189; Murchie v The Big Kart Track Pty Ltd [2002] QSC 52.

51 provided the basis on which the legal system was built, but was modified by colonial circumstances.

The historical differences between the two regions, such as California’s Mexican heritage should not obscure the fact that the infrastructure of the law in both regions remained substantially the same.

Implicit (and sometimes explicit) in the work of legal historians in both Australia and the United

States is the assumption that in each country there emerged a type of indigenous jurisprudence; a uniquely American or Australian version of law.83 To the extent that no legal regime is the same and that the precise content of the law is moulded to individual social, economic, political and historical situations, this statement is true. However, this shifts the focus away from the similar legal influences that transcended the nation state. The following chapters seek to analyse the blend of laws that made up each region’s legal regime, and explain how these regimes were united by their English legal heritage and in many respects were influenced by similar transnational forces. Indeed, it is suggested that the legal processes that operated in each region were substantially similar; whether that was the adoption of the common law, the recognition of existing legal regimes, moulding of the law to suit the economic circumstances, the borrowing of law from other jurisdictions, and the operation of informal law to supplement the formal law of each region. Far from being exceptional, the Queensland and

Californian stories are part of a wider and more universal story of nineteenth-century frontier law and society.

83 See, for example, Lawrence Friedman who wrote that “English tradition was the basic stuff of American law. But it evolved into something uniquely American, different in the various colonies but generally moving in parallel directions”, A History of American Law, p. 7. For the Australian experience, see Kercher, Debt, Seduction & other Disasters, p. 217, although Kercher does caution against making too much of the “uniqueness” of Australian law.

52 PART I: MINING ACROSS THE PACIFIC

CHAPTER 3

MINING LAW IN NEVADA COUNTY

In January 1848, James Marshall, a carpenter who was building a sawmill for John A. Sutter at

Coloma, discovered gold in the waters of the American River. News spread quickly and thousands of miners rushed to California to discover their fortune in its golden soils. It is estimated that nearly

40,000 people arrived in San Francisco by boat in 1849.1 Another estimate suggests that California’s

population grew from 14,000 in 1848, to 100,000 by the end of 1849. By the end of 1852, the

population stood at 223,000.2 The site of Sutter’s Mill at Coloma was California’s first mining camp,

but ‘diggings’ soon sprang up along the Feather, Mokelumne and Stanislaus Rivers. The richest

ground was located along the western side of the Sierra mountain range in a strip called the ‘Mother

Lode’.3 Some gold seekers found their way to the foothills of the Sierras; to the region that would

become Nevada County. In the autumn of 1848, prospectors began to explore the region in and

around Grass Valley. In the autumn of 1849, miners were working diggings around Little Deer

Creek4 and by April 1850, one newspaper reported “large operations” in the area that would become

Nevada County.5

California’s gold was a result of the same geologic activity that built the Sierras. During the process

of folding and faulting that built the mountains, molten magma flowed into fissures in the surrounding

rock, depositing minerals and creating one type of deposit: quartz gold. Quartz gold tended to be

buried deep within the earth. A second type of deposit was formed as the process of erosion wore

down the mountains and swept the debris (including the gold) into the streams and rivers. Flakes of

gold were deposited wherever the flow of water slowed: behind rocks, in crevices, and in bends.

1 Robert Umbeck, A Theory of Property Rights with Application to the California Gold Rush (Ames, IA: Iowa State University Press, 1981), p. 88. 2 Paul, California Gold, pp. 17-25. 3 Paul, California Gold, pp. 36-39. 4 Mann, After the Gold Rush, p. 10. 5 Placer Times, 29 April 1850.

53 These deposits were called placers.6 Placer deposits were not only found in existing waterways, but also in old river beds that had been buried by the passage of time.

The first gold found in California was placer gold. Miners excavated mounds of dirt out of river beds in the hope that they would also find fragments of the golden metal. To separate the dirt from the metal, placer miners first used a flat bottomed pan that they filled with the dirt and water. The miner allowed the water to wash away the lighter portions of the dirt, leaving the heavier golden material.

This method was slow and could only be done by one person. A slightly more sophisticated method was to use a ‘rocker’ or ‘cradle’, which was a rectangular box mounted on rockers. Dirt was poured into the rocker and water was baled into the top of the rocker. The idea was that the lighter material would be washed out the end of the rocker, leaving the heavier gold behind. This method allowed groups of men to band together to work a higher volume of material; one man would bale water, another would rock the cradle, another would shovel dirt. The ‘long tom’ evolved from the cradle.

Water was piped into an open trough around 4 metres long. As the water travelled through the trough, dirt was shovelled into the trough. The finer material (including the gold) fell through the perforated base of the trough and was captured below in the ‘riffle box’. Miners added successive troughs to subject the dirt to a number of washings. This was called a sluice and by 1851 this method was

“almost universally adopted” in Nevada County.7 It was estimated that dirt that would be worth around 2 dollars if worked with a rocker, might yield from 12 to 16 dollars if worked by a sluice.8

Quartz gold was extracted in a different way. The first step was to burrow into the rock and extract the vein of gold bearing quartz from the surrounding rock. This quartz was then crushed so that the gold particles came loose. This was done using a stamp, which was very similar to a mortar and pestle. These particles then needed to be separated from the other material in a manner very similar to placer mining.9 Grass Valley was one of the richest quartz regions in California. In April 1851, it

6 For an account of the geology of Californian mines, see Paul, California Gold, pp. 40-41. For further detail, see Dr John B Trask, “Report on the Geology of the Coast Mountains”, Appendix to Journal of the Assembly (1855), p. 80. 7 Nevada Journal, 29 April 1850; 19 April 1851. On the development and use of the pan, cradle, long tom and sluice, see Paul, California Gold, pp. 50-63. 8 Nevada Journal, 19 April 1851. 9 Paul, California Gold, pp. 131-140.

54 was reported that the gold bearing quartz around Grass Valley “is almost inexhaustible and is found in every direction for miles around”.10 By October 1851, the Nevada Journal reported that 32 quartz mills were either in existence, or under construction.11

The industry of gold mining did not operate in a legal vacuum, but it did develop in the context of a mining and water law that was built from the bottom up. Throughout the decade of the 1850s, the

United States Government and the Californian Government adopted a ‘hands off’ approach, taking the view that the miners themselves were best placed to regulate their region. The Californian

Government believed that any move to sell or to lease mining lands would lead inevitably to monopoly interests controlling the mines to the exclusion of working miners. In the absence of formal laws, miners agreed among themselves on a set of social norms that for their purposes functioned as ‘laws’. The precise nature of these informal laws varied with the type of gold deposit that was being exploited, but their ultimate objective was to maximise the wealth that miners could acquire in the shortest period of time. There were two main casualties of these informal mining laws: foreign miners, who were excluded from the diggings, or taxed to be there; and the environment. The informal mining laws were ‘wealth maximising’ in the tradition of Hurst and Friedman, but any increase in productivity was short-term in focus and ignored the environmental impact of mining methods in favour of short term profit. Further, the act of excluding foreign miners likely reduced productivity meaning that racial prejudices played a role in the calculus of economic efficiency.

The informal mining laws of California began as generally understood customs that regulated the right of miners to mine public land held by the United States Government. From an early date, these customs were recorded by miners in informal ‘mining codes’ that applied in each quartz and placer mining district in Nevada County. Although it is estimated that there were over 500 mining districts in California 12 (over 100 of which were in Nevada County), there was a remarkable degree of similarity between the mining codes that regulated each district. The only significant difference was

10 Nevada Journal, 19 April 1851. 11 Nevada Journal, 16 October 1851; 3 January 1852. 12 Charles Howard Shinn, Mining Camps: A Study in American Frontier Government, 1st ed. 1884 (New York: Evanston & Son, 1965), p. 236.

55 between the codes that governed placer mining districts and those codes that governed quartz mining

districts. This was a result of the different technological, geographical and capital requirements of

each category of mining. In placer mining districts, the main concern was to provide miners with a

right to possession of the ground on which they were working, while also allowing miners the

freedom to move to another district and locate a claim there. The solution, almost universally adopted

in all placer mining codes, was to restrict the number of claims that a miner could locate, and to link

the right to possession of a mining claim to continuous working of that claim. In contrast, the

significantly greater capital requirements of quartz mining meant that the method of allocating title

based on possession and continuous work was not effective because miners required a more secure

title. The quartz mining codes provided miners with a more secure title to their claim in

circumstances where they had performed sufficient work. Title to quartz claims was not dependent on

work continually being done, but on the value of work that had already been completed. Despite a

general fear of monopoly among miners and lawmakers, these quartz codes granted to miners a title to

their claims that was effectively equivalent to ownership of the land.

Mining in Nevada County was dependent on water and the story of mining law is therefore

inseparable from the story of the development of water law. The English common law applied to

water rights in California until the middle of 1855. This law prohibited the diversion of water in

canals and ditches for the industrial use of mining. Californian miners, however, believed that

whoever used the water first had a property right in that water. They believed that they could use it as

they liked, and divert it where they liked. This particular version of water rights became known as

‘prior appropriation’. But Californian water law was not as simple as one doctrine being replaced by

a more efficient one. Instead, where it was convenient and appropriate, the two doctrines operated side by side well into the 1850s.

Mining law in the United States until 1850

The story of mining law in the United States begins as a story of the law wrestling with its English heritage. In the sixteenth century, the general rule of land ownership in England was that whoever

56 had title to the surface of the land also owned everything beneath the surface. The great English

jurist, Sir William Blackstone, argued that whatever is “between the surface of any land and the centre

of the earth belongs to the owner of the surface.”13 The exception to this rule was in relation to

precious metals. Notwithstanding ownership to the surface of the land, all precious metals found

within the earth, such as gold and silver, were reserved for the Crown.14

The principle of royal metals was incorporated, with some modification, into the early American

colonial charters. The Charter of Massachusetts Bay, for example, granted to the colonists “all Mynes

and Mynerals as well as Royal mynes of Gold and Silver and other mynes and mynerals”, but

reserved “the fifte Parte onlie of all Oare of Goald and Silver” (sic) for the English crown.15 The

Second Charter of Virginia contained a substantially similar provision.16 The framers of the colonial

charters, therefore, recognised that the doctrine of royal metals should continue to apply in the New

World, but adapted the principle to colonial conditions. That is, title to silver and gold was passed to

the colonies, but the English crown retained a portion of these minerals. Subsequent practice

recognised the colonial government’s right to precious metals when the early colonial governments

attempted to issue licences to mine precious metals. In time, however, this legal principle was eroded.

Mining jurisprudence in the colonial period came to understand that valuable minerals belonged to the

soil and were “conveyed by one and the same title with agricultural lands”.17

It was not until the American independence that the principle of royal metals returned indirectly to

mainstream American jurisprudence. The Land Ordinance of 1785, adopted at the Continental

Congress in 1785, laid the foundation for land policy in the United States and was intended to provide

for the sale of public land to private individuals. The Ordinance contained distinct provisions relating

13 William Bainbridge, A practical treatise on the law of mines and minerals (London: Henry Butterworth, 1841), p. 4. 14 Case of Mines (1567) 1 Plowd 310; 75 ER 472. It was argued that the decision was motivated by the desire to secure precious metals as a source of revenue. However, the decision was justified on three grounds: that gold and silver were “the most excellent” things and should belong to the sovereign who “is in the eye of the law most excellent”; that silver and gold should vest in the sovereign for the maintenance of order; and that silver and gold were used for coinage and other purposes and therefore should vest in the Crown. See also Bainbridge, A practical treatise on the law of mines and minerals, p. 40; Mark Newton, “Native Title and the Royal Metals” Australian Indigenous Law Review (2001) 1; David Williams, “Gold, The Case of Mines (1568) and the Waitangi Tribunal” Australian Journal of Legal History (2003) 11. 15 The Charter of Massachusetts Bay, 1629, The Avalon Project at Yale Law School. 16 The Second Charter of Virginia; May 23, 1609, The Avalon Project at Yale Law School. See also Shoemaker v United States, 147 US 282 at 306 (1892) and the discussion in Shinn, Mining Camps, p. 37. 17 Shinn, Mining Camps, pp. 37, 40.

57 to mineral wealth.18 It provided that “There shall be reserved … one-third part of all gold, silver, lead and copper mines, to be sold, or otherwise disposed of as Congress shall hereafter direct.”19 James A.

Lake, in his review of the Wisconsin mining industry, argues that the reservation of minerals was motivated by three main considerations: its basis in English historical precedent; the fact that metals such as lead related directly to the nation’s ability to defend itself; and domestic concern over the evil possibility of monopoly.20 It is also likely that the federal reservation of minerals was motivated by the “desirability of maximum revenue from the public domain”.21

The federal reservation of minerals laid the foundation for a century of inactivity. Until the second half of the nineteenth century, mining law was characterised by piecemeal, isolated, and uncoordinated action.22 The only area in which the federal government did intervene was in relation to the mining of lead (because lead was a strategic metal used in warfare). In 1807, Congress passed legislation that authorised short term leases of land that contained lead.23 Rental payments were generally calculated as a percentage, which ranged from 10 to 26 per cent of the value of lead found.24

The problem for the federal government was that this leasing system required strong administration, which was simply not feasible in the early nineteenth century. The consequence was that miners avoided paying their rent.25 These administrative problems led to lobbying by Missouri Senators for lead lands to be sold, thus removing the requirement to collect rent (Missouri was the only area with substantial lead mines operating at the time). In 1829 the President was authorised to sell the lead mines in Missouri.26 By the middle of the 1830s, however, lead miners were working in Michigan,

Wisconsin, Iowa, Missouri, and Arkansas. They, too, refused to pay rent on their leases and federal

18 G.O. Virtue “Public Ownership of Mineral Lands in the United States” The Journal of Political Economy (March 1985) 3(2) 185-202 (p. 185); Paul, California Gold, p. 211; James A. Lake, Law and Mineral Wealth: The Legal Profile of the Wisconsin Mining Industry (Madison, WI: University of Wisconsin, 1962), p. 18. 19 Journals of the American Congress from 1774 to 1788 (Washington: Way and Gideon, 1823), Vol. IV, pp. 520-521. 20 Lake, Law and Mineral Wealth, p. 19. 21 James E. Wright, The Galena Lead District: Federal Policy and Practice, 1824-1847 (Madison, WI: State Historical Society of Wisconsin, 1966), p. 6. 22 Lake, Law and Mineral Wealth, p. 21. 23 William E Colby, “Mining law in Recent Years” California Law Review 33(3) (September 1945) 368-387 (p. 370); Lake, Law and Mineral Wealth, pp. 21-22. 24 Virtue “Public Ownership of Mineral Lands in the United States”, p. 189. 25 Lake, Law and Mineral Wealth, p. 22. 26 Lake, Law and Mineral Wealth, pp. 32-33.

58 officers had very little success in collecting this unpaid money.27 These administrative difficulties led to the passage of general legislation in 1846 that provided for the sale of lead mines to be conducted in the same manner as the sale of federal agricultural land.28 It was only in relation to lead lands, however, that the federal government adopted any kind of mining policy. Federal policy in relation to the mining of other metals, particularly gold and silver, was non-existent and the legal status of these mines remained unclear. The Ordinance of 1785 continued to be the only statement of the federal government’s intentions. This led to a concern among gold miners in California that the federal government had the power to assert responsibility over all gold and silver.

The State and Federal debate over mineral lands

When California formally became a State in 1850, the vast majority of land was owned by the United

States Government.29 Although some of this public land was conveyed to the State of California for the purpose of reclamation and education, and parcels of land were conveyed to individuals under various federal land laws,30 the United States Government excluded land containing valuable minerals from sale.31 As explained previously, the United States in 1850 did not have a body of mining law that governed the acquisition of mining rights on federal land.32

The Federal Government did not pursue any clear policy in relation to California’s mineral lands until at least 1866.33 Initially, Presidents James K. Polk and Zachary Taylor recommended that mineral

27 Shinn, Mining Camp, p. 41; Paul, California Gold, p. 211; Virtue “Public Ownership of Mineral Lands in the United States”, p. 185; Lake, Law and Mineral Wealth, pp. 38-40. 28 Lake, Law and Mineral Wealth, p. 51; Colby, “Mining law in Recent Years”, p. 370. 29 Umbeck, A Theory of Property Rights, p. 70; W W Robinson, Land in California (Berkeley, CA: University of California Press, 1948), p. 3; although note that land previously granted pursuant to Mexican and Spanish authority was not held by the United Government, but recognised as private property. 30 Robinson, Land in California, pp. 163-197. On federal land laws generally see Richard White, It’s Your Misfortune and None of My Own: A History of the American West (Norman: University of Oklahoma Press, 1991), pp. 137-154. 31 Paul, California Gold, p. 211. 32 Umbeck, A Theory of Property Rights, p. 69. This was expressly recognised in California by a Report of a Select Committee to enquire into the issue, Journal of the Assembly (1849-50), p. 806. 33 This point is made by Robert J. Chandler, “An Uncertain Influence: The Role of the Federal Government in California, 1846-1880” California History (2003) 224-271; Joseph Ellison, “California and the Nation, 1846-1869: A Study of the Federal Relations of a Frontier Community” Southwestern Historical Quarterly 30(2) (1926) 84-113 and Joseph Ellison, “The Mineral Land Question in California, 1846-1866” Southwestern Historical Quarterly 30(1) (1926) 34-55. These arguments are similar to those of Wallace D. Farnham, "The Weakened Spring of Government: A Study in Nineteenth- Century American History," American Historical Review 68 (1963) 662-680. But also see White, It’s Your Misfortune and None of My Own in which he argues that the west had a historical dependency on the Federal Government and William J Novak, “The ‘Myth’ of the Weak American State” The American Historical Review, 113 (June 2008) 752–772.

59 lands be sold to individuals. In January 1849, a bill was introduced into the US Senate that proposed

to divide the mineral lands into 2 acre lots and proposed to sell these lands at public auction at a

minimum of $1.25 an acre. This bill was opposed by Senator Thomas Hart Benton, who argued that

such a plan was not feasible. Benton’s argument was one that would be made throughout the 1850s:

that the sale of mineral lands would result in the breakdown of law and the concentration of mining

claims in the hands of a few. Benton preferred a system by which a miner was granted a permit to

mine.34 A similar system was proposed by Senator John C. Fremont, who proposed that miners could

take out a permit to dig for $1 per month. Although Fremont’s bill passed the Senate, it never passed

the House. An alternative was championed by President Millard Fillmore in 1851, who recommended

the division of the mineral lands into small tracts to be sold. However, determined opposition to this

plan from California, articulated by the Californian Governors John McDougall and John Bigler who

wished to preserve the status quo, convinced Fillmore to leave the resolution of the issue “until further

experience shall have developed the best policy to be ultimately adopted in regard to them”.35 This

laissez faire attitude dominated federal mineral land policy for the rest of the decade and it was not

until 1866 that federal legislation was passed to clarify the legal position in relation to the mineral

lands.36

The State of California had no power to draft a mining law because minerals policy on federal land

was a matter of federal law and not state law.37 The view in California was that the sale or leasing of

mineral lands would harm the interests of the average working miner and would permit the evil

consolidating forces of capital to take hold in the mines. A Select Committee was commissioned by

the legislature to report on the disposition of mineral lands and it submitted a majority and minority

34 This was also the method suggested by Governor Richard Mason in his report of 17 August 1848, cited in Robert J. Chandler, “An Uncertain Influence: The Role of the Federal Government in California, 1846-1880”, p. 234. 35 House Ex. Doc. 2, 32 Cong., 1 Sess. 501 (635). See generally Ellison, “The Mineral Land Question in California, 1846- 1866”. 36 The Federal Government’s policy was noted in a Report of the Committee on Mines and Mining Interests, Journal of the Assembly (1852), p. 830. For approval of this policy, see the Message of Governor McDougall dated 7 January 1852 in which the Governor argued that “it would be impolitic in Congress to adopt or create, for the present, any laws respecting them [the mineral lands]”, Journal of the Assembly (1852), p. 17; Message of Governor Bigler, Journal of the Assembly (1853), p. 25. 37 See the cases of United States v Gratiot 39 U.S. 526 (1840) and United States v Gear 44 U.S. 120 (1845), which upheld the powers of Congress over federal land, referred to in John D. Leshy, The Mining Law: A Study in Perpetual Motion (Washington: Resources for the Future, 1987), p. 9. On the early land laws, see the concise review of the Supreme Court in United States v Sweet 245 U.S. 563 (1918).

60 report on 9 February 1850. The majority report urged Congress not to sell the mineral lands, but instead grant leases or permits that entitled the holders to “work said lands, on the payment of such sums as Congress may demand, granting these leases or permits only for small tracts”.38 If the mineral lands had to be sold, the majority report urged a type of quasi-leasehold system whereby the purchase price could be paid in annual instalments that small miners could afford. The Committee argued that this approach would allow mining claims to be purchased by “the poor laboring man” and would therefore be held by “actual settlers and laborers, and not by distant capitalists”.39

The minority report was even more concerned with the problem of monopoly. It argued that “a sale of the mineral lands would result sooner or later in placing the entire ownership and control of this vast mineral district in the hands of a few monied monopolists, to the exclusion of the great mass of

American citizens”.40 Even leasing was opposed because it was believed that a consolidation of capital would “naturally flow”. The sale or leasing of the miners would result “eventually in the complete monopoly of all the valuable placers in the hands of a few holders”.41 This was the position taken by Governor John Bigler, who served from 1852 until 1856. Bigler argued that the mines should be left “as free as the air we breathe” and that “no proposition to lease or sell [mining land] should be, for a moment, entertained”. Like the Select Committee, Bigler’s concern was that the

“inevitable tendency” would be “the establishment of monopolies, which would serve more than ever thing else ... to paralyse the energies of the most enterprising and energetic class of men the world has ever seen”.42 Bigler continued to hold this view through his term as Governor and in 1855, for example, he continued to refer to the creation of “fearful monopolies” if the sale of mineral lands was to go ahead.43

38 Journal of the Assembly (1849-50), p. 805. 39 Journal of the Assembly (1849-50), p. 807. 40 Journal of the Assembly (1849-50), p. 811. 41 Journal of the Assembly (1849-50), p. 811. 42 Message of Governor Bigler, Journal of the Assembly (1852), p. 29. This was confirmed in the Message of Governor Bigler in 1853 when he noted that the sale or lease of mineral lands “would exert a blighting influence” on the prosperity of the State, Message of Governor Bigler, Journal of the Assembly (1853), p. 25; Similar sentiments were expressed in Governor Bigler’s address of 1854, Message of Governor Bigler, Journal of the Assembly (1854), p. 23. 43 Message of Governor Bigler, Journal of the Assembly (1855), p. 47, although note that the issue continued to be debated. See for example the Report of the Committee on Mines and Mining Interests, Journal of the Assembly (1852), p. 830 in

61 In the absence of federal legislation during the 1850s, the regulation of gold mining was left to the miners themselves. The Californian legislature expressly confirmed this when in 1851 it enacted an

Act to regulate proceedings in Civil Courts, in the Courts of Justice in this State44 (the Civil Practice

Act 1851), which was drafted by Stephen J. Field, and based on the code drafted by his brother, David

Dudley Field, for New York.45 This was a clever piece of legislation that confirmed the authority of miners’ informal laws, by providing that “in actions respecting ‘Mining Claims,’ proof shall be admitted of the customs, usages, or regulations established and in force at the bar, or diggings, embracing such claim; and such customs, usages, or regulations, when not in conflict with the

Constitution and Laws of this State, shall govern the decision of the action.”46 This effectively made the rules determined by the miners legally binding in Californian courts. The inactivity of the Federal and State Governments, ostensibly arising from a fear of monopoly, left the regulation of the mines to the miners themselves. Mining law was built from the ground up.

The story of the development of mining law in California supports the argument that, at least in relation to mining, the Federal Government was weak and inactive. Further, although the government of the State of California discussed the possibility of regulating the gold mining regions, it declined to intrude on the Federal government’s legislative space (with the small exception of the Civil Practice

Act 1851). This conclusion runs counter to the argument of William Novak, who suggests that the nineteenth century was defined by a desire to regulate for the public welfare. Of course, Californian mining law is only one example of federal and state inactivity. This one example does not prove a wider pattern of inactivity. What it does suggest, however, is that Novak’s argument is not necessarily true for all areas of law. In this case, federal and state inactivity was an important part of a pattern of tensions that gave shape to the mining law that operated in Nevada County.

The customary law of the mines and the development of mining codes which it was noted that “the ‘masterly activity’ to which we accord the best results in the past, will soon, in the future, cease to be that virtue which we have hitherto learned to honor”. 44 An Act to regulate proceedings in Civil Courts, in the Courts of Justice in this State, Ch. 5, Laws of the State of California, 2nd session (1851). 45 Stephen N. Subrin, “David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision” Law and History Review 6(2) (Fall 1988) 311-373. 46 Section 621, Civil Practice Act 1851; Paul, California Gold, p. 221.

62 In 1848 and early 1849, miners were still few in number and large mineral regions were still to be explored. California’s public land was treated as something that was owned by all. Miners could, and did, stop at a location, dig for a while, and move on to other unexplored regions. Miners believed that they had the right to mine on any part of the public land and that the land was shared by all. On 3

May 1848, for example, the Californian reported that “every person takes the right to gather all they can, without regard to claims”. Another miner recalled that “I began to work at mining when there was not even a custom”. Instead of a right to work a claim, this miner recalled that he merely had a right to “room to swing a pick”.47

The rush to California during 1849 led to moves by miners to secure private property rights in relation to the land that they were mining. One miner wrote that “in a comparatively short time we had a large community on the creek, which led to rows and altercations about boundaries, that eventuated in an arrangement, entered into by unanimous agreement, that each person should have ten square feet”.48

Similar observations were made about the regions around Nevada City. Charles Ferguson recalled that a party that entered a ravine usually had a right to work that area of land. However, “as population increased that rule did not long maintain. The miners saw that something must be done, and therefore a meeting was called and a rule was established that each miner could hold thirty feet square as a mining claim”.49 Andrea McDowell has suggested that 1849 saw a ‘big bang’ of property rights in which “the mineral lands were transformed from common property to private property almost instantaneously”,50 but the transition was actually far more gradual. To begin with, as a matter of formal law, the federal government retained jurisdiction over the public lands, irrespective of what agreements miners made among themselves. Further, it was only in the settled areas that miners developed informal laws regulating access to the mines. Outside those districts the public land was still considered to be common property. Put another way, miners ‘carved out’ their private property rights from the public domain. The public domain continued to be open to prospecting throughout the

47 Quoted in Shinn, Mining Camps, p. 166. 48 William Kelly, Excursion to California (London: Chapman and Hall, 1851), pp. 24-25. 49 Charles Ferguson, The Experiences of Forty-Niner During a Third of a Century in the Gold Fields (Chicago, IL: Larson, 1924), p. 98. 50 Andrea McDowell, “From Commons to Claims: Property Rights in the California Gold Rush” Yale Journal of Law and the Humanities 14(1) (2002) 17.

63 1850s. Prospecting parties continued to explore the public domain and it was only when they discovered a potential new claim they then began to enact various mining codes to define private property. In some instances it became a matter of debate as to the particular laws and customs that governed a newly discovered mining locality.51

These first mining customs were not written down, which makes it difficult to determine the specific nature of these informal ‘laws’. Nevertheless, the basic principle from which private rights were derived was that the miner was entitled to the claim only for as long as he was working on it. In many circumstances, ground was claimed by leaving tools on the located ground, and disputes were determined by a meeting of local miners.52 It is likely that rules like this were applied by the first miners in Nevada County. When the miners of the Union Quartz Mining District adopted a written mining code, they agreed that ground that was properly staked could be held “without tools being left” on the ground.53 So too did the miners of Lafayette Hill, who were able to hold their ground until 1

July 1852 “without doing work or leaving tools thereon”.54 Because these codes were designed to replace previous unwritten customs it can be implied that title to a claim had previously been proved by leaving tools on the claim, or doing a certain amount of work on the claim.

As regions became more settled, oral customs were transcribed increasingly into written form. When

Gold Hill (near Grass Valley) was first prospected in early 1850, between 15 and 20 men were engaged in working the creek bed. Each man worked his own area and there was no need for a more concrete form of organisation until the miners began to encroach upon each other. According to one miner, at around the end of the first week, “the near approach of two miners’ operations caused a dispute about the size of claims”.55 To resolve the dispute, the friends of the miners circulated around the camp a request for all miners to meet in the evening. At the meeting, the boundaries of the mining

51 See, for example, the arguments in Joseph McClintock v David Bryden (1855) (WPA 7585, California State Archives, Sacramento). 52 Andrea McDowell, “From Commons to Claims: Property Rights in the California Gold Rush”, p. 16. 53 State and Territorial Mining Laws, vol. 14 of Tenth Decennial Census: 1880 (Washington D.C., U.S. Department of the Interior, Census Office, 1885), p. 332. 54 State and Territorial Mining Laws, pp. 334-335. 55 Shinn, Mining Camps, p. 169.

64 district were established and regulations made about the size of claims.56 Similarly, on 23 November

1851, the miners of Gold Flat met at the store of J. S. Porter to discuss the better regulation of their district. At this meeting, the miners recognised that their property rights had previously been determined by unwritten custom and that “there have heretofore existed no such laws or regulations in this vicinity”.57 A better system, the miners resolved, was to draft “rules and regulations” to codify the customs of their district. Increasing settlement, however, was not the only reason for the solidification of custom in written codes. The Civil Practice Act 1851 allowed evidence of customs or regulations in a district to govern a court’s decision. The miners of Gold Hill, for example, determined that a written code was “much more satisfactory to individuals, and better evidence in courts of Justice than the mere passive agreement of such community”.58

Majority rule, principles of democracy and adherence to the rule of law were important at these miners’ meetings. The meetings were usually formal affairs, presumably to preserve the appearance of the rule of law. For example, when a miner, or group of miners, decided to call a meeting, they circulated notice to the other miners. This was usually by word of mouth, and later by publication in a local newspaper.59 Any codes enacted by the miners derived their authority from the support of the majority of miners in the district. Luther M. Schaeffer recalled that “miners respected the laws enacted by their own fraternity.”60 The miners of another district resolved: “we pledge ourselves to support each other in maintaining our rights against any violation or invasion whatever”.61

Resolutions were usually drafted prior to the meeting being called and when offered to the meeting were unanimously approved.62 In this sense, the meeting was a mere formality to ensure that the district at least appeared to adhere to a democratic process. Once the miners were assembled, they elected a chairperson and determined the boundaries of their district. When the miners of Gold Hill

56 Shinn, Mining Camps, p. 170. See also L M Schaeffer, Sketches of travels in South America, Mexico and California (New York: J. Egbert, 1860), p. 120. 57 Nevada Journal, 29 November 1851. 58 Nevada Journal, 29 November 1851. 59 Shinn, Mining Camps, p. 123. 60 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 122-124. 61 Miles Ravine and Thomas’ Flat Diggings, Nevada Journal, 3 July 1852. 62 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 122, 182.

65 met in December 1850, they enacted laws that referred to “these diggings”. Presumably, this referred to all of Gold Hill. Ambiguity in the size and location of the mining district was common.

Boundaries were defined by geographical features and not by survey. Each district might include certain gulches, hill tops, ravines, flats and ridges and would have presented “a very irregular appearance on a map”.63

If mining laws were binding only for as long as they commanded the support of the majority of miners, it follows that if the majority lost its influence, the content of the laws was liable to change.

An example of this occurred at Rough and Ready in 1849 where two companies of miners began to work a ravine and decided to exclude all other parties who wished to take up claims in the area. This rule survived until there was an influx of miners into the area who “paid no regard whatever to the extensive claims of the first settlers” and by September 1850 the ravine was staked out “from end to end with claims of the ordinary size”.64 Changing gold mining techniques could also result in a variation of the rules. If the ground that had initially been used for placer mining was increasingly being used for quartz mining, the majority of miners in the region might request changes to their mining code. It was argued, for example, that the business of mining was very different on Big Deer

Creek as compared with Little Deer Creek. Both creeks were originally part of the one district, but in

September 1853, the miners of Little Deer Creek voted to separate from the larger district. The editor of the Nevada Journal wrote that it would be “extremely unjust” to deny a small district the right to sever itself from a larger district. The editor commented that the laws that would suit Big Deer Creek would be “wholly inapplicable” for the miners of Little Deer Creek who worked “claims of an entirely different character”.65 It was usual for any separation of districts to take place at a meeting of miners, reflecting the importance that was placed on any action taken by miners reflecting the true will of the majority. Any departure from democratic processes was criticised. After the separation of

Little Deer Creek Mining District from the Big Deer Creek Mining District, one miner wrote to the

Nevada Journal in September 1854 that “the boys of the upper end would have liked very much if the

63 Shinn, Mining Camps, pp. 123, 167. 64 Shinn, Mining Camps, p. 171 quoting a Nevada County pioneer. 65 Nevada Journal, 1 September 1854.

66 gentlemen of the lower end of the Creek would have given due notice of the miners meeting. They are not more than half pleased that said laws were made after night, under ground in a cellar”.66

It is estimated that around 500 mining districts enacted mining codes in California.67 Many of these mining districts were located in Nevada County. Through a review of local newspapers, archival and census records, 85 mining codes have been located that relate to mining districts in Nevada County between 1850 and 1855 (Figures 3.3 and 3.4).68 These 85 codes do not constitute all the codes that were enacted in Nevada County during this period, but they do provide strong evidence as to how mining codes operated. It is particularly noticeable that although the miners of each district drafted their own laws, there was a remarkable degree of similarity between mining codes. Although

Rodman Paul argued that “the specific details of the regulations were likely to vary widely between districts”,69 a review of the mining codes of Nevada County accords generally with Senator William

Stewart’s recollections in 1866 that “the similarity of these rules and customs throughout the entire mining region was so great as to attain all the beneficial results of well-digested, general laws”.70

While Stewart was correct, he perhaps painted too bright a picture of uniformity between quartz laws and mining laws. There were important differences between the laws in force in placer mining districts and those in force in quartz districts, but within each of these categories, the codes were remarkably consistent.

Laws in Placer Mining Districts

Historians of mining codes rarely distinguish between the placer and quartz mining codes,71 but the different technological, geographical and capital requirements of each category of mining meant that

66 Nevada Journal, 1 September 1854. See also Schaeffer, Sketches of travels in South America, Mexico and California, pp. 143-145. In relation to the division of Cardinal Hill and the separation of the Sandusky Hill District from the Blue Lead Mining District, see Nevada Journal, 3 March 1853. 67 Shinn, Mining Camps, p. 236 quoting a United States Report on Mineral Resources (1866). 68 For reasons of size, figures 3.3 and 3.4 can be found at the conclusion of the chapter at pp. 100 and 102. 69 Paul, California Gold, p. 214. 70 Cong. Globe, 39th Cong. 1st Sess, 3225-2339 (1866). See also William Stewart, Reminisces of Senator William M Stewart of Nevada (New York and Washington: Neale Publishing Company, 1908), p. 82. 71 See, for example, Karen Clay and Gavin Wright, “Order without Law? Property Rights during the California Gold Rush” Explorations in Economic History, 42 (2005) 155-83; Richard O. Zerbe and Leigh Anderson, "Culture and Fairness in the Development of Institutions in the California Gold Fields", Journal of Economic History 61(1) (2001) 114-143; McDowell, “From Commons to Claims: Property Rights in the California Gold Rush”.

67 mining codes differed according to the type of mining. Clay and Wright, for example, differentiate between codes that were “pro owner” and “pro jumper”, but fail to note that the “pro owner” codes tended to be for quartz districts and the “pro jumper” codes tended to be found in placer districts.72

Placer deposits were initially found in existing river beds and the dried up beds of old water courses.

By definition, these deposits were usually on, or near, the surface and required little capital to extract.

Placer mining relied intensively on water, particularly by the middle of the 1850s when miners were using hydraulic mining techniques to literally wash away the hillside, revealing the previously buried deposit. The failure of historians to differentiate adequately between different types of mining obscures the fact that placer mining codes sought to balance the right of a miner to an adequate title with the desire of miners to mine on any land that was not being worked. The solution was one that maximised the efficiency of the gold fields and encouraged the largest amount of wealth to be extracted in the shortest possible time by the largest number of miners. The fact that the placer mining codes were dependent upon the will of the majority, combined with the low barriers of entry to the business of placer mining, meant that the codes tended to be drafted in favour of the small miners.

A review of archival and newspaper materials has uncovered 34 different mining codes for 27 placer mining districts in Nevada County (Figure 3.3). A typical example of a mining code is the code of the

Chalk Bluff Mining District, which was unanimously adopted by the miners of the district on 2 March

1852. The code provided the following:

1. This district is bounded on the north by Gold Fork of Green Horn Creek, extending its general

course to its head and thence east magnetic to Steep Hollow, including one hundred feet on

the north side of said stream, on the east by Steep Hollow to the Emigrant Road, including

one hundred feet of the eastern bank of said stream; on the south by the Emigrant Road to

Green Horn Creek, and on the west by Green Horn Creek, including one hundred feet of the

western bank of said stream, and shall be known by the name of “Chalk Bluff Mining

District”.

72 Clay and Wright, “Order without Law? Property Rights during the California Gold Rush”.

68 2. The size of claims on and along living streams shall be sixty (60) feet and across the same

from bank to bank including the bars. In ravine or gulch diggings, claims shall be one

hundred (100) feet, extending fifty feet on each side of the centre of the ravine or gulch.

Sluice or hill-side claims shall be fifty (50) feet fronting on ravine, gulch or living stream

claims, running back at right angles with the front thereof to the top of the hill. In cayote

diggings,73 the discoverer shall be entitled to one hundred (100) feet square, all others to fifty

(50) feet square – and all claims shall be measured horizontally. The owners of each quartz

ledge or hill shall be left free to make such laws for their own government as they may see fit.

3. Claims on living streams shall be worked every twenty days. Gulch, ravine, sluice or cayote

claims shall be worked every 10 days, when in a working condition, or shall be forfeited,

subject to re-location, by posting a notice to that effect at the upper and lower ends of the

claim, and in cayote diggings, at the four corners of the claim, by stakes with the name of the

owner thereon.

4. Companies turning streams for the purpose of working their channels, shall be entitled to the

claims so dried, or placed in a condition to be worked.

5. All claims bought or sold shall be subject to the same laws as those originally located, and no

transfer shall be considered valid unless it is in writing, signed by the person selling in the

presence of one or more witnesses, or otherwise proved according to law.

6. These laws are not intended to apply to private rights heretofore obtained in accordance with

the common customs and usages of miners. But all claims now held in this district shall be

subject to the same laws as heretofore located, where they do not conflict with the legal or

equitable rights of present holders. Every miner may hold by location one ravine or living

stream claim and one sluice claim fronting thereon.74

73 Cayote diggings consisted of a deep shaft to access deep placer deposits. 74 Nevada Journal, 6 March 1852.

69 The most important decision for miners when drafting a code was to determine an appropriate size for mining claims located within the district. All 34 of the codes reviewed included a specific provision that limited the size of mining claims. The code of the Chalk Bluff Mining District is particularly illustrative because it defined the size of stream, ravine, sluice and cayote claims. Economists have provided different explanations for the varying claim sizes. Robert Umbeck argues, for example, that claim size was based on providing miners “with the same amount of wealth as that which they could have had through violence”.75 Umbeck has been criticised by Richard Zerbe and Leigh Anderson, who suggest that the claim size was based on “fairness”.76 Whatever the exact economic equation, the most important factor was that the laws gained their power from the assent of the majority. Claim sizes were determined by a majority of miners at a meeting. It is likely that each miner at the meeting wanted to maximise the area of land available to him for mining, but recognised that claims had to be small enough to allow every miner at the meeting to have a claim and therefore secure a majority vote for the laws. Thus, claim size might be dependent on the number of miners at the meeting, the richness of the ground, the size of the ground, and the type of mining that was being undertaken. At

Chalk Bluff, for example, miners were granted only 60 feet along a stream, but 100 feet along a ravine. Stream claims could be as small as 30 feet to as large as 100 feet; ravine claims ranged from

30 feet by 60 feet, to 150 feet by 50 feet. There was more consistency among hill claims, which tended to be around 100 feet per claim. Likewise, cayote claims were usually between 30 feet and 60 feet square.

The mining codes usually required claims to be marked in some way. At Chalk Bluff, claims on streams or ravines were marked with a notice at either end. Cayote and hill claims were marked by four stakes at each corner. Around one third of the reviewed mining codes included a specific provision for the marking of claims. At the Selby Flat Mining District and the Blue Lead Mining

District, claims were marked with “stakes” and “substantial stakes” respectively.77 Other codes were more specific. At the Corn Hill Mining District, miners were required to place a stake at each corner

75 Umbeck, A Theory of Property Rights with Application to the California Gold Rush, p. 40. 76 Zerbe and Anderson, "Culture and Fairness in the Development of Institutions in the California Gold Fields", p. 128. 77 Laws of Selby Flat Mining District, Nevada Journal, 17 July 1852. See also Laws of Blue Lead Mining District, Nevada Journal, 13 January 1854; Laws of Sandusky Hill Mining District, Nevada Journal, 27 February 1854.

70 of the claim, and one in the middle.78 It is likely that in the remainder of districts the miners considered that the requirement of marking ground was so obvious that it wasn’t necessary for it to be formally recorded. When not specified, miners might nail a notice to a tree in a prominent position to claim a number of feet above the tree along a ravine.79 William Kip recalled that any individual had a right to appropriate a claim by driving “a post at each corner, another in the centre having on it his name”.80

In order to increase the flow of the information around a mining district and to more formally record mining titles, mining codes provided for a primitive form of administration by creating the position of a Recorder to register and record mining claims. This practice was very common and 29 out of the 34 codes reviewed formally created this type of administrative structure. When Luther M. Schaeffer was elected Recorder at Cardinal Hill, his duty was “to record the name of every claim holder” for which he received one dollar each and fifty cents every time a claim was sold and the name of the new owner had to be recorded.81 This fee structure was fairly standard among mining codes.82 In some circumstances, the Recorder was called upon to adjudicate disputes and Schaeffer recalled that in such cases he “was supposed to be possessed of wondrous wisdom, and it was necessary to assume a magisterial air”.83 Indeed, the position of Recorder was so well understood by the miners of Nevada

County that when Nevada City was incorporated and a Recorder was appointed to conduct town business, miners brought their claims to him to be registered.84

The dilemma for miners in placer mining districts was that they wanted secure title to the ground that they were working, while also having the freedom to move to another district at a later date and be able to locate a new claim there. The solution, almost universally adopted in all placer mining codes,

78 Laws of Corn Hill Mining District, Nevada Journal, 7 August 1852. See also Laws of Round Mountain Mining District, Nevada Journal, 2 March 1855; Laws of Willow Valley Mining District, Nevada Journal, 27 January 1854. 79 As in Dunning and Montgomery v Rankin, Wooley & Ors (California State Archives, Sacramento). 80 William Ingraham Kip, The early days of my episcopate (New York: T.Whittaker, 1892), pp. 137-138. 81 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 122-124. 82 See for example, Shelby Flat Mining District, Nevada Journal, 4 February 1853; Gold Flat Mining District, Nevada Journal, 28 April 1853; Blue Lead Mining District, Nevada Journal, 13 January 1854; Little Deer Creek, Nevada Journal, 11 August 1854. 83 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 143-145. 84 Harry Wells, History of Nevada County (Oakland, CA: Thomson & West, 1880), p. 81.

71 was, firstly, to restrict the number of claims that a miner could locate; and, secondly, to link the right to possession of a mining claim to continuous work of that claim. Thirty out of the thirty-four mining codes included restrictions on the number of claims that a miner could stake out and work. These codes generally provided that each miner could hold only one claim by location (that is, by marking out and claiming the land). However, these laws also encouraged entrepreneurial investment and miners were allowed to hold as many claims by purchase as they wished.85 Specific work requirements also appear in 31 of the 34 placer mining codes reviewed. At Chalk Bluff, for example, a miner was only entitled to possession of a stream claim if it was worked 1 day in every 20, and possession of all other claims if they were worked 1 day in every 10. If a claim was not being worked, it was liable to be forfeited to any other miner who worked the ground (this was called ‘claim jumping’). Miners were therefore careful to ensure that their claims continued to be worked, even in their absence. Frederick Shaw wrote to his wife and family in 1857, that “[i]f I go up to the mill I have to pay a hand here to work in my place as that is the custom in such claims”.86 Similarly, in a mining case heard in a Nevada County Justice Court, the Judge instructed the jury that “it is not necessary for the owner to be on the ground in person, it is sufficient if he has a person employed to work on the ground at the time, or has such badges and indications of possession as are usual in such case”.87

There was no formal administrative structure that enforced the mining codes. In the absence of formal administration, the miners themselves, through the practice of claim jumping, ensured that valuable land continued to be worked. Luther M. Schaeffer recalled, for example, that his claim was paying well and that the “hitherto deserted spot” became “crowded with gold hunters”. When illness prevented him from working, his claim was quickly “jumped”. He complained that in less than a

85 See, for example, Rules of Blue Rock Mining District, Nevada Journal, 8 May 1852; Rules of Miles Ravine and Thomas’ Flat Diggings, Nevada Journal, 3 July 1852; Laws of Blue Lead Mining District, Nevada Journal, 13 January 1854; Rules of Myers’ Ravine Mining District, Nevada Journal, 27 January 1854. 86 Letter of Frederick Shaw, circa 1857 (ms. C-B 547 Part I:83, Bancroft Library, CA: University of California, Berkeley). See also evidence of the custom in the testimony of Jonathan Cooperly, Dunning and Montgomery v Rankin, Wooley and Ors (California State Archives, Sacramento). 87 B B Troxell & Ors v George Grant & Ors, County Court No. 28 (1857) (Searls Historical Library, Nevada City, California).

72 month “other parties succeeded in extracting $8,000”.88 Nevertheless, miners understood, and expected, that a particular claim might be worked by several successive miners. Luzena Wilson recalled that one miner might “dig, dig, dig, fruitlessly for days” and then abandon the claim “with enough provisions to last till they struck another camp”. According to Wilson (with perhaps a little exaggeration), it was not uncommon for “the first day’s work on the old claim by the new owner” to

“yield hundreds of dollars”.89

The work required to maintain title to a claim was remarkably consistent among codes, which suggests widespread understanding and adoption of the custom in Nevada County, and hints at the mobility of these placer miners during this period. Of those 31 codes that specified work requirements, the most common requirement was for a claim to be worked 1 in every 10 days.90

Where mining codes did not specify the amount of work that was required to maintain title to the claim, it was implicit in the Code that title was based on continuous work, or the leaving of tools on the claim. It is likely that in these districts, miners understood that their claims had to be worked “if it can be done to advantage”91 or “when there is a fair prospect of making them pay”.92 Linking a right to possession to a claim to the continuous work of that claim was appropriate for the placer mining industry. In a Report of the Committee on Mines and Mining, submitted to the legislature in 1852, the

Committee considered that there was not a sufficient “concentration of labor and capital” that it was necessary to grant a more secure title to placer miners.93 Dr John B. Trask, State geologist, explained this in an 1855 report on the geology of the gold fields. He noted that “the operations of the placer miner are generally limited as to time, seldom exceeding a year in the same locality” and argued that placer mining required a “comparatively small amount of capital” and the extraction of gold was achieved “by the simple process of washing”.94 As the decade of the 1850s progressed, a number of

88 Schaeffer, Sketches of travels in South America, Mexico and California, p. 97. 89 Luzena Stanley Wilson, Luzena Stanley Wilson ‘49er (Mills College, CA: Eucalyptus Press, 1937), p. 36. 90 See, for example, Rules of Blue Rock, Nevada Journal, 8 May 1852; Rules of Miles Ravine and Thomas’ Flat, Nevada Journal, 3 July 1852; Laws of Shelby Flat, Nevada Journal, 1 July 1852. 91 Rules of Myers’ Ravine, Nevada Journal, 2 February 1855. 92 Rules of Prospect Hill, Nevada Journal, 5 May 1855. 93 Committee on Mines and Mining Interests, Journal of the Assembly (1852), p. 833. 94 Dr John B. Trask, “Report on the Geology of the Coast Mountains” Appendix to Journal of the Assembly (1855), pp. 80- 81.

73 mining codes granted more secure title to placer miners. This was because deeper placer deposits were being discovered, which required miners to dig long tunnels to access the gold. This required a miner to expend a larger amount of capital. For example, at Sandusky Hill, a miner was excused from the requirement to work 1 day in every 10 if the tunnel was over 60 feet deep. Similarly, in the North

San Juan Mining District and the Junction Bluff Mining District, a miner had good title to a claim for a period of 2 years if work was done in each to the value of 500 dollars and 4,000 dollars respectively.

Placer mining depended on the availability of water. Accordingly, in 27 of the 34 mining codes, protection was expressly allowed if a miner could not work his claim as a result of water, or other means. These codes were expressed in both the positive and negative. The Rules of the Little Deer

Creek Mining District, for example, provided that “all claims with water for washing must be worked each tenth day” (emphasis added).95 Similarly, the miners of the Mancenita Hill Mining District provided that “each sluice claim, or body of such, shall be worked one full day out of every ten days when water can be procured” (emphasis added).96 This rule was, of course, open to abuse. How was it to be determined whether a claim could be worked to advantage, and on what days? Some mining codes resolved this difficulty by phrasing the rule in the negative and expressly stating a period during which work was not necessary. The rules of the Round Mountain Mining District provided, for example, that work was not necessary during the dry season of June until December.97 Other codes, such as that of Selby Flat (dated 10 July 1852), provided that a claim that was registered with the

Recorder did not have to be worked until the end of the dry season on 1 December 1852.98

The placer mining laws of Nevada County evolved directly from the common will of the miners.

Their purpose was to ensure that the mines were constantly worked and that miners could freely move from one district to another. The democratic way in which the law was developed meant that, in respect of the law of placer mines, the law was not a tool of Horwitz’s entrepreneurial elite. Rather, the law of placer mining conforms neatly to the Hurstian view that the American people (in this case,

95 Rules of Little Deer Creek Mining District, Nevada Journal, 29 July 1853. 96 Rules of Mancenita Hill Mining District, Nevada Journal, 1 April 1853. 97 Nevada Journal, 2 March 1855. 98 Rules of Selby Flat Mining District, Nevada Journal, 17 July 1852.

74 the small miners) held a common belief that the law could, and should, be used to maximise

productivity.

Laws in Quartz Mining Districts

Quartz mining districts were different from placer mining districts in two significant respects: quartz

districts were sometimes far from water, which meant that ditches and canals had to be dug to deliver

water to the mine; and significant capital was needed to excavate the sometimes deep quartz, and to

construct a mill to crush that quartz and release the gold. These factors meant that miners could not

work their quartz claims until they had the capital to construct the necessary infrastructure. This

meant that a system of title based on continuous work was not an effective method of maintaining

ownership of quartz claims. For these reasons, the quartz mining laws did not, to the same extent,

seek to grant title to the largest number of miners, but sought to provide the miner with a title on

which he could raise capital.

The first solution, which was used in Nevada County at Gold Mountain in December 1850 and

subsequently adopted throughout the County, was for quartz claim holders to agree collectively to

postpone the date for work to begin on their claims until some date in the future when it was hoped

that capital could be obtained. A review of newspaper and archival sources has revealed the mining

codes for 51 quartz mining districts in Nevada County (Figure 3.4). Of those, the miners of 34

districts specifically protected their claims by agreeing on a date before which work was not required

to commence.99 This solution was not without its problems. One such problem was that it allowed a

miner to claim an area of ground, for little or no cost, invest no capital, and wait to see if gold was

struck in the district. Once gold was struck, the miner might then sell his claim, therefore realising a

profit without having done any work on the claim.100 A related issue was that it provided no incentive

for miners to begin work. The date for the commencement of work at Gold Mountain was extended

99 See, for example, Laws of Gold Mountain, State and Territorial Mining Laws, p. 331; Laws of Union Quartz Mountain, State and Territorial Mining Laws, p. 332; Laws of Kentucky Hill, State and Territorial Mining Laws, p. 333; Laws of Prospect Hill, State and Territorial Mining Laws, p. 333; Laws of Saunders Ledge, State and Territorial Mining Laws, p. 334. 100 Paul, California Gold, p. 225.

75 on 1 April 1851 and again on 29 September 1851.101 Similarly, the time for commencement of work in the Union Quartz Mountain Mining District was extended 5 times between 1851 and 1854.102

Quartz laws tended to be more specific in requiring miners to specify the boundaries of their claim and mark them. In the vast majority of cases (29 out of the 30 quartz codes between 1850 and 1852), a method of marking a claim was specified. The method of marking tended to be by way of a stake at each corner of the claim, and one stake in the middle, which displayed the name of the claimant and the number of the claim.103 It is not surprising that the quartz codes required more precision in the marking of claims than the placer mining codes. In quartz claims, miners were not necessarily always present on the ground, or the ground was not necessarily being worked, which meant that it was important to mark a claim with more precise boundaries.

Claim sizes between different quartz districts were also more uniform. It is likely that this was because miners did not usually know how rich the ground was when they formed their mining district.

This meant that one of the variables in determining claim size (richness of the ground) was missing.

There was also a significant degree of ‘borrowing’ between codes.104 In 22 of the 30 codes drafted between 1850 and 1852, miners were granted either 100 feet along the ledge, or 100 feet square along the ledge. Miners were generally permitted to mine any gold found within a vein or ledge within the claim, including “all dips and angles”. Of the 30 mining codes between 1850 and 1852, the phrase

“all dips and angles” or similar appeared in 18 mining codes. This was an important phrase because it allowed the miner to follow a vein to whatever depth, and whatever direction, even if it crossed into a neighbouring claim.105 The intention of these provisions was likely to protect quartz miners who had

101 State and Territorial Mining Laws, p. 331. 102 State and Territorial Mining Laws, p. 332. See also Laws of Prospect Hill Mining District, State and Territorial Mining Laws, p. 333; Laws of Day’s Ledge Mining District, State and Territorial Mining Laws, p. 334; Laws of Lafayette Hill Mining District, State and Territorial Mining Laws, pp. 334-335; Laws of Indian Springs Hill, State and Territorial Mining Laws, p. 335; Laws of Jefferson Hill No. 1, State and Territorial Mining Laws, p. 336; Laws of Empire Hill No. 1, State and Territorial Mining Laws, p. 343. 103 See, for example, Laws of Gold Mountain, State and Territorial Mining Laws, p. 331; Laws of Union Quartz Mountain, State and Territorial Mining Laws, p. 332. 104 There are remarkable similarities in the language used in the quartz codes of Nevada County, particularly those in the vicinity of Grass Valley. 105 Paul, California Gold, p. 236.

76 invested in expensive machinery from loss occasioned when they realised that they had discovered only the tail end of a vein on their mining claim.106

By October 1852, it was clear that the state of quartz mining laws in Nevada County was unsatisfactory. The problem was one of attracting capital. Investors were reluctant to invest large sums of money into mining operations where the title to the land rested on the majority will of a district, and such title was not formally recognised by either the State or Federal Government. A

Report of a Committee on Mines and Mining, delivered in 1852, noted that the lack of sufficient property rights in quartz mines prevented miners from “realizing any portion of their value, by sale or lease, as they can transfer no title sufficiently ascertained and assured to induce such investments of capital”.107 The editor of the Nevada Journal called for “those interested in quartz veins in this county to assemble in convention at an early day, and fix some regulations for the government of this species of mining”.108 As a result of this growing dissatisfaction, a convention of Nevada County miners was held on 13 November 1852 to draft uniform quartz mining laws for Nevada County. A Committee appointed by the Convention reported that “there is no tenure by which quartz leads and veins are held, sufficient to induce monied men to invest capital to any extent, for the purpose of working the numerous quartz veins which intersect our county.”109 On Monday, 20 December 1852, a second convention was convened in Nevada City. It was attended by representatives of many Nevada County mining districts, particularly the Grass Valley quartz mining companies. It was at this convention that the Nevada County Quartz Laws were adopted.

The Nevada County Quartz Laws provided a miner with good and permanent title to his claim in circumstances where he had performed sufficient work on that claim.110 The Laws provided that each claimant was entitled to 100 feet on a quartz ledge or vein, together with “all the dips, angles and

106 Paul, California Gold, p. 237. 107 Committee on Mines and Mining Interests, Journal of the Assembly (1852), p. 832. The Report also recommended that the Federal Government make grants of land to miners that were similar to that granted to each miner under “the rules and regulations recognized and established by the miners themselves in the particular locality”. 108 Nevada Journal, 23 October 1852. 109 Nevada Journal, 19 November 1852. 110 Although there was some support for the sale of quartz land by the government of the United States, the majority opinion favoured tenure along similar lines to that which already existed, but made more secure if sufficient work was done on the claim. See the letter to the editor, Nevada Journal, 3 December 1852.

77 variations” of the vein or ledge.111 To mark a claim, a claimant was required to stake it in such a way as would “fully identify” the claim. The claim was then recorded by a Recorder who had jurisdiction over all of Nevada County. In order to maintain title, the claimant was required to do work to the value of $100, or alternatively 20 days “faithful labor” within 30 days of the recording of the claim. If the work was not performed, or money not expended, the claim was liable to be jumped. But if the criteria were satisfied, the Recorder issued a certificate that guaranteed “undisputed possession” for a period of 1 year. The certificate could be renewed each year if a similar amount of work was done, or money expended. However, if a company contracted to build a mill valued at over $5,000, that company would receive “undisputed possession and proprietorship forever under these laws”. At this point, it must be remembered, however, that these laws received their power through the mutual agreement of the quartz miners of Nevada County. They had no formal legislative power and notwithstanding the language of permanency used in the laws, they were subject to any future legislation passed by the US government.112 Nevertheless, the practical effect of these laws was to grant a title to a mining claim that was almost equivalent to a fee simple interest.

It is difficult to determine exactly how effective the Quartz laws were in encouraging capital.

Geologist, Dr John B. Trask concluded in 1855 that these County laws effectively granted an indefeasible title to miners and noted that the laws were likely to induce the investment of capital.113

Statistics on the introduction of capital may be misleading because Nevada County was a rich quartz district and discoveries continued to be made throughout the 1850s. Nevertheless, the statistics do suggest a trend of increased investment. Governor John Bigler estimated that by the end of 1854,

$700,000 worth of investments had been made in Nevada County in quartz operations, 5 times as much as the next counties.114 Bigler also noted that in 1855 a further 6 companies had commenced

111 Article 2, Nevada County Quartz Laws. 112 Article 4, Nevada County Quartz Laws. 113 Trask, “Report on the Geology of the Coast Mountains”, pp. 80-81. 114 Message of Governor Bigler, Journal of the Assembly (1855), p. 40.

78 operations in Nevada County, with capital stock of $104,000.115 By the end of 1855, Nevada County

was home to 16 quartz mills, more than a quarter of the mills that existed in the State.116

Like the laws of the placer mines, the laws of the quartz mines sought to maximise the productivity of

those mines. The difference is that while the laws of the placer mines achieved productivity goals by

granting equal access to the mines for all miners, the laws of the quartz mines provided miners with

more secure title to claims. Despite the rhetoric of the Californian government’s opposition to

monopoly, the quartz mining laws encouraged the development of large companies that had the

capital to exploit the quartz deposits. A further difference was that while the placer mining laws were

drafted by small miners, the quartz laws were drafted by an entrepreneurial elite who had access to

capital. The quartz laws therefore did not necessarily reflect the general will of all miners, but

reflected the needs of this privileged class. In this sense, the development of quartz mining law

reflects Horwitz’s view of American law; that the law was used by businessmen to promote their own

economic interests.

Foreigners in the mines

Any person (who had the requisite capital) could engage in the business of mining in Nevada County.

From the time of the discovery of gold, however, there was a strong feeling in California that this

privilege should be limited to American miners. In Nevada County and throughout California, miners

and politicians expressed concern over the number of miners from foreign countries who were

undertaking the business of mining. In this sense, Californian anti-immigrant sentiment formed part

of a wider story of increasing nativism in the United States.117 Indeed, the fourth Governor of

California, J. Neely Johnson, Governor from 1856-1858 was a member of the American Party and

elected partly on a nativist platform.118 In 1850, a Select Committee report on the disposition of

115 Message of Governor Bigler, Journal of the Assembly (1855), p. 41. 116 Message of Governor Bigler, Journal of the Assembly (1856), p. 26. 117 Although it is important to recognise that anti-immigrant sentiment in Nevada County was directed towards the Chinese and Mexicans and, to a lesser extent, immigrants from the Colony of New South Wales. 118 For a discussion of nativism, the Know Nothings and the American party, see Tyler Anbinder, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s (New York: NY: Oxford University Press, 1994); Bruce Levine, “Conservatism, Nativism and Slavery: Thomas R Whitney and the Origins of the Know-Nothing Party” The Journal of American History 88(2) (September 2001) 458-488; Michael F. Holt, “The Politics of Impatience” The Origins of Know

79 mineral lands noted the “swarms of foreigners” who worked in the Californian mines and, after extracting thousands of dollars of gold “returned to their respective homes without contributing anything to the prosperity of a people, whose hard-earned and honourably purchased wealth they have appropriated to themselves”.119

Two solutions to this problem were offered. The first was to allow only American citizens to work in the mines. This was the position adopted by the Report of the 1850 Select Committee on the disposition of the mineral lands, which requested that Congress pass laws “to secure the exclusive working of the mines to American citizens, and such foreigners as have, in good faith, declared their intention to become citizens of the United States”.120 A second solution was suggested by the Finance

Committee, in a report delivered on 15 March 1850. The Finance Committee proposed legislation requiring foreigners to “pay a small bonus for the privilege of taking from our country the vast treasure to which they have no right”.121 The report reasoned that foreign immigrants intended to

“carry from our country immense treasure”122 and that “it is a matter of great national policy, that the vast amount of California gold, or at least a large proportion of it, should first find its way through our own country, and its influence upon the wants of commerce be there felt, before it seeks a market in other nations”. The solution, according to the report, was to require foreign miners to pay “some little tribute” for the privilege of working the Californian mines.123

This taxation solution was initially adopted by the Californian legislature. The first legislation to regulate foreign miners was passed in 1850. It provided that in order to mine for gold, foreign born miners had to obtain a licence, at a cost of 20 dollars.124 In California, 4,971 licences were issued in

1850. In Yuba County, part of which became Nevada County, W. H. Richardson, collector for Sutter

Nothingism” The Journal of American History 60(2) (September 1973) 309-331; Michael F. Holt, Political Parties and American Political Development from the Age of Jackson to the Age of Lincoln (Baton Rouge: Louisiana State University Press, 1992). 119 Majority Report of the Select Committee, Journal of the Assembly (1849-1850), p. 803. See also Report of Mr Green on Mines and Foreign Miners, Journal of the Senate (1849-1850), p. 493. 120 Journal of the Assembly (1849-1850), p. 805. See also the Minority Report of the Select Committee, Journal of the Assembly (1849-1850), p. 814. 121 Report of Mr Green on Mines and Foreign Miners, Journal of the Senate (1849-1850), p. 494. 122 Report of Mr Green on Mines and Foreign Miners, Journal of the Senate (1849-1850), p. 493. 123 Report of Mr Green on Mines and Foreign Miners, Journal of the Senate (1849-1850), p. 496. 124 An Act for the better regulation of the Mines, Ch. 97, Laws of the State of California, 1st session (1850).

80 and Yuba Counties issued 532 licences, and W. M. Kincaid, Collector for Yuba County, issued 62 licences.125 In the Governor’s address of 7 January 1851, Governor Peter Burnett noted that enforcement of the tax was difficult and that it “met with serious opposition in various portions of the

State”. As a consequence, he noted, “the amount of revenue of derived from this source fell far short of what was confidently anticipated”.126 In the region around Nevada City, there were whispers of miners taking the law into their own hands. One miner wrote that “there are fears of trouble about the tax on foreigners, notice being given to American citizens to ‘jump’ their claims unless they pay their taxes”.127 Difficulties of enforcement led to the repeal of the legislation in 1851.128

Anxiety about foreign miners working the mines did not disappear with the repeal of the legislation.129

A Report of the Committee on Mines and Mining Interests, submitted in 1852, noted that one of the great evils of the system of ‘free mines’ was that it encouraged “indiscriminate immigration” of “vast numbers of the Asiatic races, and of the inhabitants of the Pacific Islands”.130 A second attempt at legislation was made in 1852. The licence fee was set at 3 dollars per month and the County Sheriff was designated as tax collector. As an additional incentive to collect the revenues, counties were permitted to keep 50 per cent of all revenues collected.131 In 1853, the fee was raised to 4 dollars per month.132 This legislation was not directed at Chinese in particular, but the rate of Chinese immigration into California meant that the Chinese were the main subjects of the legislation. There is a question as to whether this legislation was passed to deter immigration, or simply to extract a fee for

125 Treasurer’s Report on Foreign Miner’s Tax Law, Journal of the Assembly (1851), p. 591. 126 Address of Governor Burnett, 7 January 1851, Journal of the Senate (1851), p. 33. 127 Sacramento Transcript, 26 July 1850. 128 Nevada Journal, 19 April 1851; An Act to Repeal An Act for the better regulation of the Mines, and the government of Foreign Miners, Ch. 108, Laws of the State of California, 2nd session (1851). See also Kanazawa, Mark, “Immigration, Exclusion, and Taxation: Anti-Chinese Legislation in Gold Rush California” Journal of Economic History 65(3) (September 2005) 779-805. 129 Nevada Journal, 1 May 1852. 130 Committee on Mines and Mining Interests, Journal of the Assembly (1852), p. 830. But see comments in Nevada Democrat, 23 February 1855 in which it was observed that the object of the bill was to reduce the Chinese to “a state of slavery”. 131 An Act to provide for the Protection of Foreigners, and to define their liabilities and privileges, Ch. 37, Laws of the State of California, 3rd session (1852). 132 An Act to provide for the Protection of Foreigners, and to define their liabilities and privileges, Ch. 44, Laws of the State of California, 4th session (1853). See also An Act to Repeal An Act to provide for the Protection of Foreigners, and to define their liabilities and privileges and to revise the original Act, Ch. 119, Laws of the State of California, 7th session (1856), which confirmed this licence fee.

81 the privilege of working Californian mines. It is likely, however, that both were motivations. On one hand, legislators sought to restrict immigration and forecast a future of “absolute prohibition of entry”. On the other hand, if foreigners were to be allowed into the State, legislators believed that some action was necessary to remedy the perceived problem that immigrants were taking the “richest treasures” of the Californian mines “without money and without price”.133

The ‘foreign question’ excited considerable public sentiment in Nevada County. On 28 April 1852, a public meeting was held at Grass Valley for the purpose of “taking into consideration the right of foreigners or unnaturalized residents to hold mining claims”. The meeting resolved that “we deprecate the evils now existing and about to exist from the great number of foreigners coming to this country for the purpose of extracting our mineral wealth” and further that “the miners and citizens of

Grass Valley township are required to meet here on the evening of Monday next the 3d day of May, for the purpose of devising means to protect ourselves against the invasion of foreigners”.134 At that meeting it was resolved that no foreigner should be allowed to locate or hold mining claims in Grass

Valley township, and that the Chinese and other coloured races were not entitled to naturalisation.135

Similar meetings were held at Little York on 2 and 3 May 1852,136 and on 16 May 1852, a “very large and intelligent mass” of citizens met at Rough and Ready to take “prompt and efficient steps to rid themselves and the particular localities in which they live, of all foreigners who have not declared their intention to become citizens of the United States”.137

The interests of the Chinese in the mines around Nevada County were often seen as secondary to those of the American-born population. In October 1851, news reached Nevada City that the claims of a group of Chinese had been “seized by a strong force of envious hombres”. The Chinese who had

“been for a considerable time patiently turning the river, and had just accomplished their task, and proved the richness of the claims by one day’s successful work” were ordered off their claims by 40

133 Committee on Mines and Mining Interests, Journal of the Assembly (1852), pp. 831, 834. 134 Nevada Journal, 1 May 1852. 135 Nevada Journal, 8 May 1852. 136 Nevada Journal, 8 May 1852. 137 Nevada Journal, 22 May 1852.

82 men.138 The justification was that the Chinese should give way to “white men”.139 In this particular case, a group of 15 miners left Nevada City to assist the Chinese miners. However, even that assistance was not without a price. The 15 miners “made an arrangement with the Chinamen to obtain the claims, to work them, and to pay them one half of the proceeds”.140 Given the anti-Chinese sentiment in Nevada County, it is unlikely that this was an isolated incident. Indeed, white miners may have used the Chinese miners as ‘stalking horses’ to test new ground with the aim of jumping the ground if it proved valuable.

State legislation that restricted access to the mines for foreigners, and particularly the Chinese, was the first example of future discriminatory legislation in California. In addition to State legislation, the fact that the regulation of the mines was left with the miners themselves meant that the tyranny of the majority was able to give voice to popular xenophobic concerns. Any claims that the administration of the Californian gold fields was an expression of American democracy must necessarily be considered in the context of the racism and discrimination that was present in both formal and informal law. If we consider Nevada County’s mining law in the context of this discriminatory legislation, it is clear that although the mining law sought to maximise productivity, this desire operated only to the extent that the productivity gains were to flow to Americans. In this way, productivity was subject to racial prejudices that were embedded in both the formal and the informal law. In another sense, in a sea of government inactivity in relation to mining, the issue of foreigners in the mines was one area in which the Californian government did regulate. On one hand, this supports William J. Novak’s argument about the extent of 19th century regulation.141 On the other hand, it is difficult to understand how the ‘public welfare’ is advanced by discriminatory regulation,

138 Nevada Journal, 9 October 1851. 139 Nevada Journal, 16 October 1851. 140 Nevada Journal, 9 October 1851. 141 Novak discusses the Chinese and discriminatory legislation only briefly when discussing health regulations. See Novak, The People’s Welfare, p. 315.

83 unless Novak’s concept of ‘public welfare’ is understood as being the welfare of the wealthy and white.142

The development of water law in Nevada County

The business of mining relied on the availability of water. Water was used to separate the lighter material from the heavier material that contained the gold. The ‘long tom’ and the ‘sluice’ required a constant flow of water. This was easy enough when mining was conducted near to a water source, but more difficult where deposits were found many miles from running water.143 In these cases, water had to be piped through ditches or wooden flumes.144 George Black, a Civil Engineer, reported that when gold mining was first carried out “in the beds of rivers and ravines, or along their banks” there was “comparatively little labor or expense” involved in the extraction of the gold. As these deposits were exhausted, the attention of miners turned to deposits that could “only be made available by a large supply of water, brought in over the mining ground at a high elevation”.145 Water was considered to be essential by the miners themselves. It was common to see complaints printed in the newspapers that a particular mining region could not be worked “owing to a total absence of water”.146 This is confirmed by the fact that 26 of the 34 mining codes from placer mining districts included specific provisions that claims did not need to be worked if there was not sufficient water

(Figure 3.3). In 1855, Governor Bigler referred to water as that “indispensable element” and lamented that “miners have been compelled to abandon valuable claims” on the basis that “sufficient water could not be obtained for mining purposes”.147

Water was diverted from the rivers to feed the mines at an early stage in Nevada County’s history. As early as March 1850, a small ditch, about one mile long, was dug from Mosquito Creek to Coyote

142 This is a point that Novak makes when he suggests that “the rhetorics and technologies of salus populii did not mean that everyone’s welfare and safety was being pursued equally ... the line between wellness and sickness closely followed established hierarchies of social difference: class, ethnicity, and race”, Novak, The People’s Welfare, p. 216. 143 Paul, California Gold, pp. 50-64. 144 Paul, California Gold, p. 64; Wells, History of Nevada County, p. 171. 145 George Black, Report on the Middle Yuba Canal and Eureka Lake Canal (ms. xF858.C2 c.9:24, Bancroft Library, CA: University of California, Berkeley) 146 Nevada Journal, 22 November 1851; 8 November, 1851. 147 Message of Governor Bigler, Journal of the Assembly (1855), p. 40.

84 Hill, which was about one and a half miles away. In May, another ditch was dug from Little Deer

Creek to Phelps’ Hill. Larger projects were soon commenced. In August, a canal taking water from

Rock Creek, above Nevada City, to Rough and Ready was commenced. In the following month, another canal from Rock Creek was commenced to take water to Coyote Hill.148

The use (and diversion) of water for gold mining did not sit easily with the common law of water rights. The common law of water rights, known as riparian law, provided that water must be allowed to flow naturally; it was a “moving, wandering thing”.149 The owner of the land adjacent to the stream or river had a right to the flow of water as it flowed through his land in its natural channel. This right was subject to the equivalent rights of other riparian owners on the same stream to also enjoy the flow of water through their land. It was not permissible to restrict the flow of water, or to pollute it. While a person was free to use the water as it flowed through their property, riparian law provided that they must return it to its original stream bed before it flowed out of their property.150

The mass diversion of streams and rivers in Nevada County was a clear departure from riparian law.

Californian miners believed that whoever used the water first had a property right in that water and could use it as they liked, and divert it where they liked. This particular version of water rights became known as ‘prior appropriation’; a sort of ‘first in, best dressed’ version of water rights. In true

Hurstian tradition, rather than follow the common law, miners developed legal solutions that worked best for them in their mining districts.

The method of diversion of streams continued throughout the early period of mining in Nevada

County. One miner noted that “it will be a good idea to extend our ditch and sell the water to the miners who might want to use it.” Accordingly, his partner decided to “put a notice at the head of the ditch claiming all the water it will hold.”151 Testimony from District Court cases suggests that miners

148 California Daily Courier, 25 January 1851; Paul, California Gold, p. 64; Wells, History of Nevada County, p. 171; Other ditches included a ditch from Shady Creek to Sweetlands, and from Bloody Run to Sweetlands: Nevada Journal, 13 November 1851. 149 Donald J Pisani, “Enterprise and Equity: A critique of Western Water Law in the Nineteenth Century” The Western Historical Quarterly 18(1) (Jan 1987) 15-37 (p. 18); Carol M. Rose, “Energy and Efficiency in the Realignment of Common-Law Water Rights” The Journal of Legal Studies 19(2) (June 1990) 261-296 (p. 268). 150 Merritt v Parker, 1 Coxe L. Rep. 460, 463 (N.J. 1795) quoted in Horwitz, The Transformation of American Law, p. 35. 151 Chauncey L. Canfield ed. The diary of a forty-niner (Boston, MA: Houghton Mifflin Company, 1920), pp. 33-34.

85 believed that they gained a right to the water when they “claimed” or diverted it.152 Most major mining operations had access to running water by flume or ditch.153 Around Deer Creek, for example, the “whole of the water which escapes the many ditches above and from the Cayote mines, is turned into a large flume running along the surface”.154 In 1852, the South Yuba and Sacramento Canal

Company was making preparations to introduce “the waters of the South Yuba into the mining region lying between that river and the valley, embracing an area of twenty to thirty square miles of rich mining hills, gulches and flats”.155 Where ditches were yet to be constructed, emphatic pleas were made for the diversion of water.156 The Nevada Journal discussed this plan to divert the waters of the

South Yuba and suggested that “the benefits to be derived to the whole region through which the artificial river would flow are inestimable”.157 In May 1852, the Nevada Journal stated emphatically that “[i]n California’s future prospects much depends upon the construction of artificial channels, through which an abundance of water may be carried to those places which nature has not provided with that element.”158 Governor Bigler even proclaimed that by the end of 1854 “many highly important and useful improvements have been made, especially in the excavation and construction of canals and ditches of great length”.159 By the end of 1855, Nevada County had 44 ditches totalling

682 miles, at a value of $1,123,000.160

152 See the testimony in Owen Marlow et als v Charles March et als, District Court, No. 43 (1857) (Searls Historical Library, Nevada City, California) in which the water was claimed by priority in the “latter part of 1853” to carry water to Columbia, Kennebec and Colorado Hills; E B Winnans v Blanc & Ors, District Court, No. 248 in which the diversion of Squirrel Creek in 1850 is discussed (Searls Historical Library, Nevada City, California). 153 See, for example, the Bunker Hill Company described in Nevada Journal, January 1, 1852; Bear Creek and Auburn Company, Nevada Journal, 3 January 1852; Little York supplied by the waters of Bear River and Walloupa supplied by the waters of Steep Hollow Creek, Nevada Journal, 29 May 1852, 7 August 1852; the Ripple Box Ditch Co. conveyed water from Deer Creek to Sucker Flat, Nevada Journal, 19 February 1852; the waters of the Mokelumne Rover to James’ Bar, Nevada Journal, 26 February; Ditch from Steep Hollow to Green Horn mining district, Nevada Journal, 6 March 1852; Nevada Journal, 31 January 1852. See also Nevada Journal, 29 November 1851. 154 Nevada Journal, 3 July 1852. 155 Nevada Journal, 24 July 1852; See also Nevada Journal, 31 January 1852; 19 February 1852; 1 April 1852; 29 May 1852; 5 January 1855; 15 January 1858. 156 See, for example, dissatisfaction surrounding the failure of the Waloupa ditch company to “prosecute the original extension of the Ditch to Steep Hollow Creek”, Nevada Democrat, 8 February 1854. 157 Nevada Journal, 11 December 1851. See also, Nevada Journal, 11 October 1851; 1 April 1852; 3 January 1851. 158 Nevada Journal, 1 May 1852. 159 Message of Governor Bigler, Journal of the Assembly (1855), p. 40. 160 Message of Governor Bigler, Journal of the Assembly (1856), p. 25 in which he notes that “vast canals have been constructed, ditches dug, dams built, and water-courses turned”.

86 The large scale diversion of water took place in a legal context that did not permit such diversions.

The doctrine of prior appropriation was not considered by any Californian courts until December

1851 when the District Court, held at Coloma, heard a case between the Cayote Ditch Company and the Deer Creek Water Company over the water in Deer Creek. The Court applied the principle of prior appropriation and determined that the Deer Creek Company’s mill had a prior right to the water, followed by the Cayote Company’s right, and finally the Deer Creek Company’s ditch. Thus, “if the water in the creek was not sufficient to turn the mill, the Deer Creek Co. should turn the water from their ditch, and call on the other company for enough to supply the deficiency.”161

The Nevada County District Court again considered the issue of water rights in 1853 in the case of

Eddy v Simpson. The dispute occurred about 8 miles northwest of Nevada City on Shady Creek and involved the Shady Creek Water Company and the Grizzly Water Company. In his judgment, Judge

William T. Barbour ignored riparian law and recognised the doctrine of priority. He explained that:

As a general principle, the party who first uses the water of a stream, is by virtue of priority of

appropriation entitled to hold the same. If a company or association of miners construct a

ditch, to convey water from a running stream for mining or other purposes, and they are the

first to use the water, locate and construct the ditch, they are legally entitled to the same as

their property, to the extent of the capacity of the ditch to hold and convey water … In the

case before the court, the plaintiffs [Shady] are clearly entitled to as much water as they

originally had in Shady Creek, but no more.162 (emphasis added)

By 1853, therefore, the principle of prior appropriation had found favour in the District Courts of

California, but had not yet been considered by the Supreme Court of California. The lack of Supreme

Court authority was noted by the Nevada Journal in May 1852 when it was reported that companies were hesitant to invest in large scale projects “owing to the frailty of the usufructuary titles by which

161 Nevada Journal, 12 December, 1851. This case gave rise to some controversy. It is apparent that there were, in fact, two causes of action: one for damages to the mill, and the other for damages to the Deer Creek Company’s Ditch. The jury found for the Deer Creek company in the first cause, but not on the second: Nevada Journal, 20 December 1851 and Nevada Journal, 18 December 1851. 162 Eddy v Simpson 3 Cal. 249, 1853 WL 686 Cal. (1853), p. 3. For other cases, see Centreville Ditch Co. v Larnder & Ors in which Judge Barbor decided that a water company, having a water right located prior to the locating of mining claims, had as right to use that water against the owners of the claims, Grass Valley Telegraph, 24 November 1853.

87 this kind of property is holden” and called for legislation to secure “to the proprietors of such works a permanent interest, such as will dispel every doubt of the safety of the investments”.163

The Supreme Court got its chance in 1853, when the decision of Judge Barbour in Eddy v Simpson was appealed. Justice Alexander Wells wrote the judgment of the Supreme Court. Rather than expressly confirm that prior appropriation was the law in California, Wells based his judgment on the principle that there could be no property in water itself. It was a judgment that neither confirmed, nor rejected, the principle of prior appropriation, although there is a hint in the judgment of Wells that he preferred to “adhere to known principles and well-settled law [ie. Riparian law] so far as they can be made applicable to the novel question growing out of the peculiar enterprises in which many of the people of this State are embarked”. Accordingly, the Supreme Court ruled that Judge Barbour had not properly instructed the jury. By 1853, therefore, the law of prior appropriation was being applied in the District Courts of California, but the highest court in California had made no definitive statement of the legitimacy of the practice (and had indeed suggested that “known principles” and “settled law” should be applied in water disputes). This did not slow the business of water diversion in Nevada

County. Ditches and canals continued to be built, and companies continued to claim the water flowing in particular rivers and streams. In July 1854, for example, the South Yuba Mining and

Sacramento Canal Company published a notice claiming “the whole of the waters of the South Yuba

River, at a certain point above Bear Valley Gap” and the Slate Creek Water Company gave notice of their intention “to enlarge their ditch to double the present size to a capacity of 500 inches of water”.164

It was not until 1855 that the principle of prior appropriation was approved by the Supreme Court of

California when it heard the case of Irwin v Phillips.165 In this case, the Eldorado Company claimed water rights over the south fork of Poor Man’s Creek in the fall of 1851. The company sold its water rights to Captain Irwin, who constructed a dam and a ditch to convey the water. The ditch diverted the water from the creek bed and took water to Irwin’s diggings, which were about half a mile away

163 Nevada Journal, 1 May 1852. 164 Nevada Democrat, 12 July 1854. See also the claim made by the Snow Mountain Water Company in that same edition. 165 Irwin v Phillips 4 Cal. 140, 1855 WL 691 Cal. (1855).

88 from the dam. This left the creek bed dry. Phillips and others then took up mining claims in the old

creek bed. They asserted their riparian rights and argued that Irwin had an obligation to allow the

water to flow in its natural channel. Phillips wanted Irwin to pull down his dam, stop diverting the

water, and allow it to flow naturally in the creek. The District Court and then the Supreme Court

ruled against the defendants and ruled that Irwin had every right to build a dam and divert the water

because his water rights were first and therefore had priority. Justice Solomon Heydenfeldt, who delivered the judgment of the Supreme Court, held that a miner “has no right to interfere with the prior occupation of his neighbor”.166 By 1855, therefore, prior appropriation had become the law in

California.167 Nevada County water companies continued to divert the waters of the region, taking

advantage of this new security of title.168

The fact that prior appropriation was incorporated into the law of California through successive

decisions of the District and Supreme Courts has been documented by historians.169 The more

important, but less recognised, point is that the law of prior appropriation was a well entrenched

custom in Nevada County prior to 1855. This was expressly acknowledged by the Supreme Court in

Irwin v Phillips. In argument, counsel first referred to the importance of custom, and that the

common law must “yield to varying and peculiar circumstances of the country”.170 Justice Solomon

Hydenfeldt expressly acknowledged this process of translating custom into law when he noted that

courts “are bound to take notice of the political and social condition of the country” and accordingly

explained that a system of water rights “has been permitted to grow up by the voluntary action and

assent of the population”171 The United States Supreme Court Justice Stephen J. Field, who also

166 Irwin v Phillips, p. 5. 167 See, for example, the instructions to the jury that “priority of location whether of mining claims or water privileges if not abandoned or forfeited gives priority of right” in the case of Owen Marlow et als v Charles March et als, District Court, No. 43 (1857) (Searls Historical Library, Nevada City, California). 168 For example, Nevada Journal, 5 February 1855; 23 February 1855; Nevada Democrat, 11 April 1855 (waters of Rocky Canon); 6 June 1855 (waters of Green Horn Creek); 12 December 1855 (waters of Goose, Duck and all other lakes that drain into the South Yuba River). 169 See, for example, Donald J. Pisani, The Origins of Western Water Law: Case Studies from Two California Mining Districts” California History (Fall 1991) 242-257; Donald J Pisani, “Enterprise and Equity: A critique of Western Water Law in the Nineteenth Century”; Norris Hundley, The Great Thirst: Californians and Water, 1770s – 1990s, (Berkeley: University of California Press, 1992). 170 Irwin v Phillips, Respondent’s Points (California State Archives, Sacramento). 171 Irwin v Phillips, p. 5.

89 served on the Californian Supreme Court from 1857 until 1863, recognised the importance of these customs in an 1878 United States Supreme Court judgment. His Honour noted that “the regulations and customs of miners, as enforced and moulded by the courts and sanctioned by the legislation of the

State, constituted the law governing property in mines and in water on the public mineral lands.”172

The customs adopted by the miners drove the development of the law.

Historical reviews of the major water cases have also tended to simplify the complex development of water customs and law in California. Just as there was no one moment that marked the emergence of property rights on the public domain, so too was there no bright line that saw the end of riparian law and the adoption of the law of prior appropriation. The truth is that the two doctrines co-existed well into the 1850s. When mining was conducted along waterways, it was essential for miners that the water was not diverted and continued to flow undiminished in the creek or ravine. For this reason, these placer miners applied riparian law. In the dispute between Irwin and Phillips, for example, the miners on the creek first gathered to resolve the dispute by informal arbitration. These miners decided that each miner working in the dry steam bed had a right to the water that had been diverted from the stream bed before they located their claims. These miners applied riparian law, presumably because it was most appropriate to their method of mining.

The continued application of riparian law could also be achieved by agreement between miners and recorded in the mining codes. In 6 of the 34 placer mining districts for which rules have been reviewed, the miners expressly agreed to adopt a form of riparian law (Figure 3.1). For example, at

Shelby Flat in January 1853, the miners agreed “that all waters naturally running in any of the ravines within the district shall be considered as belonging to all the miners of the same”.173 At Willow

Valley in January 1854, the miners agreed that “[a]ll water running in its natural channel belongs to the miners on said channel, each miner having a right to use the same on his own ground”.174 By committing themselves to allow every miner to use water running in its natural channel meant that the miners were also committing to return the water to its natural bed in the style required by riparian law.

172 Jennison v Kirk, 98 US (8 Otto) 453, 458 (1878); Paul, California Gold, p. 222. 173 Laws of Shelby Flat Mining District, Nevada Journal, 4 February 1853. 174 Laws of Willow Valley Mining District, Nevada Journal, 27 January 1854.

90 At the same time, however, by making a provision for this style of water use in their mining code, the miners were ‘appropriating’ that water from the creek. That is, having ‘appropriated’ the water for all the miners working on the stream, they were protected by the law of prior appropriation from later diversions of the water from the stream. Thus, the two doctrines operated side by side.

Understanding the tension between water law and custom in this way suggests that the practical operation of water law was driven by the requirements of the miners.

Figure 3.1: Water laws in mining districts

District Date Provision Shelby Flat 21/1/53 That all waters naturally running in any of the ravines within the district shall be considered as belonging to the miners of the same Gold Flat 18/3/53 No man shall be allowed to dam water, or run tailings on to other claims to the injury of the same Willow Valley 31/1/54 All water running in its natural channel belongs to the miners on said channel, each miner having a right to use the same on his own ground Big Deer Creek 1/8/54 No man nor company of men shall be allowed to put a dam or any obstruction in the creek or side race so as to damage the claims above or below. Little Deer Creek 5/8/54 All water running in its natural channel belongs to the miners on said channel; each miner having a right to use the same on his own ground, but shall not be allowed to dam the same on his ground so as to overflow the ground of another that may have claims above him. Mosquito Creek 18/9/54 All water running in its natural channel belongs to the miners on said channel; each miner having a right to use the same on his own ground, but shall not be allowed to dam the same on his ground so as to overflow the ground of another that may have claims above him.

The resolution of mining and water disputes

The potential for profit arising out of mining and water rights, the number and variety of mining codes, which were often drafted inaccurately, and the uncertainty that accompanied the locating of a claim and the appropriation of water, meant that the application of mining law was often characterised by litigation. Although some theorists have argued that parties can regulate their affairs without resort to litigation,175 this was not the case in relation to mining law. Perhaps this was because the rights in

175 Most notably, Robert Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991).

91 question were so lucrative that the expense of litigation was no deterrent and miners were reluctant to compromise those rights.

Mining disputes arose mainly as a result of the ‘loose manner’ in which mining codes were framed, and the poor definition of claim boundaries. It was often the case that when a valuable section of land was discovered, miners who had previously worked in the region suddenly laid claim to that land, asserting prior possession. It was noted in the Nevada Journal that “the commencing of work in this region in the mines is a sign for litigation and disputes”. It was only when claims became valuable that claims were made to the land. The newspaper lamented that “it seems a pity for all parties that so much good time is wasted in the season when it is valuable”.176 William Stewart described one such meeting in Nevada County. He met a man named Savage who “showed me where he had intended to locate a claim, but said that he had changed his mind”. Stewart said that he would locate the claim and Savage remained with Stewart “until I had driven a stake at each corner, which was claimed by miners’ rule, thirty feet square”. Gold was struck the following day, and Savage returned to demand the claim.177 Similarly, in the District Court case of Isoard v Nathan Hawk, certain claims were purchased by a man named Isoard from the partnership Rochford & Co., the original locators. A few days later, Nathan Hawk tried to jump the claims on the basis that Rochford & Co. had not worked the claims in accordance with the mining laws of the district in which the claims were located.178

Disputes in relation to water usually concerned the amount of the water that was allowed to flow in a stream. Measuring the amount of water in a stream and determining how much of that water a company was entitled to appropriate was not an exact science. Evidence suggests that parties tended to take matters into their own hands before resorting to informal or formal dispute resolution procedures. To protect their ‘rights’, parties would destroy or ‘cut’ the dam or flume that was diverting water away from them. In the spring of 1850, for example, a Mr Phelps claimed the right to

176 Nevada Journal, 3 March 1854. 177 Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 58-60. See also the cases of the Empire Water Company and the Gold Hill Company, Nevada Journal, 24 December 1852. 178 Nevada Journal, 10 March 1854. See also Joseph McClintock v David Bryden (1855) (WPA 7585, California State Archives, Sacramento); Stoakes v Barrett (1855) (WPA 7018, California State Archives, Sacramento); Busenius v Coffee (WPA 1200, California State Archives, Sacramento).

92 the water in Little Deer Creek, to supply mines on Phelps’ Hill. Once used, Phelps allowed the water to flow back into the creek. A company then bought Phelps’ rights and cut a ditch that took the water away from the creek. The miners below the diversion claimed that they had a prior right to the water.

Around May each year, when water began to become scarce, a delegation of miners would go to the head of the ditch and turn the water back down the creek. The ditch company would find their supply of water cut off and would send men to divert it back in their direction. Sometimes the two parties would meet, weapons were drawn, threats made and hard words indulged in.179 In August 1852, the

Nevada Journal reported “difficulties” on Deer Creek, just below Nevada City. The reason was a dispute between the Rough and Ready Ditch Company and the miners on the creek as to “the proprietorship of the water”. The “difficulty amounted nearly to blows, and the miners destroyed a portion of the ditch flume”. The miners then built a new dam above the water company’s ditch.180

Other times, the cutting of a dam or ditch was the catalyst that brought a dispute before the court.

One party claimed damages done to the property, the other party claimed that they were taking only what was rightfully theirs.181

When a dispute developed, the most common method of resolution, particularly in the early years of the decade, was by the miners themselves. This is perhaps because informal arbitration was quicker and cheaper, and also because title was dependent on the will of the majority. One miner, writing about Nevada City in 1851 observed that “most of the cases are mining disputes, and a miners’ jury decides these”.182 As early as 1850, a miner by the name of David Brooks recalled a dispute between two parties as to the boundaries of their land. Brooks was “called upon to act as arbitrator” and was one of “six arbitrators besides Judge Walsh who was the 7th man”.183 Similarly, when William

Stewart was involved in a dispute as to the ownership of a claim, he proposed to have the dispute

179 Wells, History of Nevada County, p. 173. 180 Nevada Journal, August 14, 1852. See also the cutting of a dam located above Nevada City, Nevada Journal, 27 November 1851 and further Nevada Journal, 31 December 1852. 181 For example, the cutting of a water ditch in the region around Snow Point, Nevada Journal, 3 March 1854; Johnson v Tock Creek and Snow Mountain Ditch Co., Nevada Democrat, 12 January 1859 (Verdict for defendant who was found to have a prior right to the water). 182 Canfield, The diary of a forty-niner, p. 54. 183 Testimony of David Brooks, Joseph McClintock v David Bryden (1855) (WPA 7585, California State Archives, Sacramento).

93 determined by arbitration, which was “the usual method of settling claims”. Stewart described the

process, whereby each claimant selected a party, and the two chosen selected a third “to hear and

decide the case at once”.184 In placer mining districts, 11 of the 34 recorded codes provided for a

method of informal arbitration by miners (Figure 3.3). In quartz mining districts, 11 of the 29

recorded codes prior to 1853 provided for informal arbitration by miners (Figure 3.4). The most

popular method of dispute resolution was by a tribunal comprised of two miners (one chosen by each

disputing party) and a third miner who was either the Recorder, or was chosen by the two miners who

were already appointed.185 In other codes, the process of dispute resolution was less formal. Disputes

were heard by “disinterested miners,”186 “miners of the hill”187 or a “majority of the actual

claimholders”.188

First-hand accounts of these informal mining courts are rare. By definition, the court records only

disclose those examples where arbitration failed. However, the background to the previously discussed case of Irwin v Phillips offers a rare insight into the dispute resolution process. In June

1854, at Poor Mans Creek, a group of miners assembled to determine a solution to the dispute between Captain Irwin and the miners who had claims along the old creek bed below Captain Irwin’s dam. Miners gathered “to settle the matter and decide who had the best right to the use of the water”.189 It was a relatively formal occasion, evidenced by the fact that the first order of business

was to appoint a chairman and secretary. Once appointed, the Chairman addressed the meeting and

reminded the miners that they were gathered “not only for their own special benefit”, but also for

those who would reside in the area in the future, and for those who were “probably yet unborn”. He

reminded the miners that they must judge “cooly and impartially between the conflicting parties

without malice or prejudice”.190 After the Chairman’s opening comments, “a motion was made and

184 William Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 59-60. 185 Laws of Gold Mountain, State and Territorial Mining Laws, p. 331; Laws of Kentucky Hill, State and Territorial Mining Laws, p. 333; Laws of Weehawken Hill, State and Territorial Mining Laws, p. 337; Laws of Sweetland Mining District, Nevada Journal, 8 May 1852. 186 Rules of Pleasant Flat, Nevada Journal, 18 August 1854. 187 Rules of Kentucky Valley, Nevada Journal, 10 July 1852. 188 Rules of Corn Hill, Nevada Journal, 7 August 1852. 189 Testimony of Thomas Sullivan, Transcript of Evidence, Irwin v Phillips (California State Archives, Sacramento). 190 Annexure G, Transcript of Evidence, Irwin v Phillips (California State Archives, Sacramento).

94 carried” to appoint six men to inspect the claim in question. These men observed that the miners did, in fact, cut the dam, but they concluded that “Captain Irwin cannot take back water on any mining ground by closing his reservoir or in any way impede the free progress of the water”..191

If miners wished to appeal the decision of the mining court, or wished to refer their dispute to a formal dispute resolution body, their dispute could be heard by a Justice of the Peace, or by the

District Court. Although there are no statistics of the number of mining claims that were heard by

Justices of the Peace, anecdotal evidence suggests that litigation was rife. William Stewart noted that when he commenced his work as a lawyer in mining cases he “at once gained a good business”192 and considered that mining law was the “principal and most lucrative practice in the State of

California”.193 In September 1851, Luther M. Schaeffer similarly recalled that “there were often litigations among miners”. He recalled that at this time “hardly a day passed that I was not summoned to appear before the honourable court”.194 A review of all the civil cases heard by the District Court sitting in Nevada County between 3 July 1856 and 22 May 1857 reveals that the Court heard 221 cases. Of these, 19 cases concerned title to mining claims, or water rights, 14 cases were heard by a jury (2 cases were dismissed without trial, 2 were determined by the court after receiving a report of an expert to whom the cases were referred). There is little evidence to suggest that juries were biased in favour of plaintiffs or defendants. In 9 cases, the Jury found in favour of the plaintiffs and in 6 cases the jury ruled in favour of the defendants.195

The forgotten casualty: the environmental impact of mining and water law

The United States and Californian Governments allowed the miners themselves to regulate their regions. This laissez faire attitude was born from a fear of the dangers of consolidation and the risk of

191 Annexure G, Transcript of Evidence, Irwin v Phillips (California State Archives, Sacramento). 192 William Stewart, Reminisces of Senator William M Stewart of Nevada, p. 84. 193 William Stewart, Reminisces of Senator William M Stewart of Nevada, p. 128. 194 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 173, 185. See also Letter of Simon S. Lucy, 23 August 1856, Simon S. Lucy letters (Bancroft Library, CA: University of California, Berkeley BANC MSS 99/355 cz). For further comments on the problem of lawsuits, see Letter of 1 February 1860 (Folder 1.16), Letter of 20 February 1860 (Folder 1.17); Comment that “the Justice’s courts are wholly occupied with cases of this nature”, Nevada Journal, 3 March 1854. 195 District Court Judgment Book (Doris Foley Historical Library, Nevada City, California).

95 monopoly interests controlling valuable mining interests to the exclusion of working miners. Thus, mining and water law in California were derived from the customs adopted by miners to work their claims and, in the case of water law, the adoption of these customs by the District and Supreme

Courts. The primary motivation for miners was to secure profit quickly, and to benefit the largest number of miners. The laws adopted by miners in relation to their mines attempted to provide miners with sufficient title to the ground that they were working, while also allowing them the freedom to later move to another district and locate a claim there. In quartz districts, the concern was to provide miners with good and permanent title to their claim that would allow them to invest capital in their mines. Similarly, in relation to water law, the adoption of prior appropriation allowed miners to divert water to their diggings in order to maximise their efficiency. Put more simply, the laws allowed miners to efficiently access the economic wealth of the mines.196 However, productivity was understood in a very short term sense. In the calculus of profit, long term environmental impact was forgotten or ignored. Over 150 years after gold was discovered in California, the scars left by these laws remain on the hillsides and in the rivers.

The method of sluicing, which was made possible only by the diversion of water, was expressly provided for in 30 of the 34 placer mining codes (Figure 3.3). This process quite literally enabled miners to change the geography of their district. Using this method, water was employed to “replace the labor of men”. Pressurised water was sprayed onto the side of a hill to sweep away the dirt and rock (Figure 3.2).197 Niles Searls, the District Court judge in Nevada County from 1855 until 1862 and Chief Justice of the Californian Supreme Court from 1887 until 1889, described this process in

Washington before a House Committee on Mines and Mining. He explained that water was first diverted from streams and pressure was then built up by conveying the water down 100 to 500 vertical feet. That volume of water, Searls explained, “makes a power which is almost irresistible”. The water was turned against the hillside with a “power that will make a boulder of two or three feet dance

196 The concept of efficiency driving the development of law in the nineteenth century is a concept that has gained much approval among legal historians, most notably James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915; Horwitz, The Transformation of American Law. 197 George Black, Report on the Middle Yuba Canal and Eureka Lake Canal (ms. xF858.C2 c.9:24, Bancroft Library, University of California, Berkeley).

96 along before it as though it were a cork”.198 Similarly, William Kipp observed that “when a hill is equally rich throughout, it is entirely leveled to the plain. If there is a plentiful supply of water, they begin at the top and cut down until they fairly wash it all away.”199 Kip also described a picture only a “few hundred yards beyond the limits of the town” where 150 men worked in an “immense excavation”. The mining company had “literally washed away half the mountain” and he predicted that “the whole mountain will eventually be removed and reduced to the level of the plane”.200 It was common to read these visual descriptions of the power of the sluice in Californian newspapers. One writer noted that the “great leveller, the sluice, is working wonders. We often visit the surrounding regions, but never without new surprise at the earthquake-like doings of the present race of miners.

For instance, the high hills of the Cayote range have had a perpendicular chasm excavated through them of a hundred and fifty yards wide to the base rock”.201

198 Arguments of Niles Searls, J B Hobson, J K Luttrell of California, in support of the law to regulate hydraulic mining in the State of California, before the House Committee on Mines and Mining, Washington D.C. (ms. F863.6.S328, Bancroft Library, University of California, Berkeley). 199 Kipp, The early days of my episcopate, pp. 137-138. 200 Kipp, The early days of my episcopate, pp. 145-146. 201 Nevada Journal, 28 January 1853.

97 Figure 3.2: Hydraulic mining in Nevada County

Courtesy: Society of California Pioneers

The use of sluicing meant that the hills were “melting away like snow”,202 but the debris from these gold mining operations had to be deposited somewhere. The solution was for the debris to be washed down the rivers and the streams. The House Committee on Mines and Mining in Washington heard that “there are now in the Feather, Yuba and American Rivers … two hundred million yards of mining debris that has been cast in by the miners in other years and which, like water, is gradually but not so rapidly working its way down”.203 Along Deer Creek, the Gold Tunnel Company, for example, excavated around twenty carloads of rocks and tailings each day, and dumped them into the creek.204

Miners understood and accepted these difficulties and took their claims “subject to the difficulty from tailings in the creek”.205 Another miner said that his company “used to get rid of [the tailings] as best

202 Nevada Journal, 21 January 1853. 203 Arguments of Niles Searls, J B Hobson, J K Luttrell of California, in support of the law to regulate hydraulic mining in the State of California, before the House Committee on Mines and Mining, Washington D.C. (ms. F863.6.S328, Bancroft Library, University of California, Berkeley). 204 Testimony of James Holmes, Wilson v Berryman California State Archives, Sacramento). 205 Testimony of John Knox, Wilson v Berryman (California State Archives, Sacramento). See also tesimony of George Kidd. Wilson v Berryman (California State Archives, Sacramento).

98 we can and do not complain”.206 During periods of high rainfall, these tailings were washed out over the floor of the Sacramento Valley, burying vast areas of farmland. Tailings also blocked the rivers and streams to such an extent that floods in the Sacramento Valley became more severe and more frequent. It was not until the 1870s and 1880s that public opinion began to be aroused, but the rivers and valley still bear the scars today.207

The pattern of tensions in mining law

There is no single explanation for the operation of mining law and its effect. Mining law in Nevada

County developed in a vacuum of federal and state legislation. In this vacuum, local miners developed laws that best suited their economic interests and maximized the productivity of their claims. While the placer mining laws reflected a majority view of the best way to release the

‘economic energy’ of the goldfield, and enshrined a principle of equality of access, the quartz mining laws tended to support the interests of an entrepreneurial elite. At the same time, any economic gains were short term in focus. The impact on the physical environment was ignored in favour of short term profit. Further, while the laws may have had the effect of maximising the wealth of the gold fields, they also reflected dominant racial attitudes. When it came to who could benefit from the mines, productivity was tempered by prejudice. Understood in this way, the story of mining law in Nevada

County sits well within the depiction of the West offered by New Western Historians. The law was characterised by economic exploitation, environmental degradation, and racial prejudice. At the same time, however, the development of informal law to operate in a vacuum of federal and state legislation is reminiscent of Turner’s observation that “the frontiersman … knew how to preserve order, even in the absence of legal authority.”208 In mining law, therefore, it is possible to see a synthesis of the old and new in Western history.

206 Testimony of John Turner, Wilson v Berryman (California State Archives, Sacramento). 207 See, for example, Robert L. Kelley, “The Mining Debris Controversy in the Sacramento Valley”, The Pacific Historical Review 25(4) (Nov 1959) 331-346; Robert L. Kelley, Gold vs Grain: The Hydraulic Mining Controversy in California’s Sacramento Valley (Glendale, CA: Arthur H. Clark Company, 1959). 208 Frederick Jackson Turner, “The Problem of the West” (1896), in The Frontier in American History, (New York: Dover, 1996), p. 212.

99 Figure 3.3: Laws of Placer Mining Districts in Nevada County (1850-1855)

Name Date Size of claims Marking of Restriction Ongoing work Protection if work Recorder Arbitration claim on number of required not possible Stream Ravine Hill / Sluice Cayote claims Chalk Bluff 2/3/52 60 ft 100 ft 50ft along 50 ft sq Yes Yes Steam: 1 in 20 --- base Other: 1 in 10 Sweetland 14/3/52 - 150ft x 50ft 180ft x 80ft - - Yes 1 in 10 - Yes Yes Blue Rock 22/4/52 - 90ft x 60ft 30ft x 60ft - - Yes 1 in 10 Water Yes - Mile’s Ravine and 28/6/52 - 60 ft 60 ft sq 60 ft sq Yes Yes 1 in 10 Water Yes - Thomas’ Flat Selby Flat 10/7/52 - - 50 ft sq 30 ft sq Yes Yes 1 in 10 Sluice: 12/52 Yes Yes 21/1/53 60 ft sq 30 ft sq - Yes Sluice: 1 in 10 Cayote: 7/53 Yes - Corn Hill 23/7/52 30ft x 60ft 30ft x 60ft 30ft x 60ft 30ft x 60ft Yes Yes - Water Yes Yes Omega 31/7/52 - 100 ft sq 100 ft sq - - Yes 1 in 10 Water Yes - Mississippi Valley 11/12/52 80ft x 180ft Yes If can be worked to Yes Yes advantage Gold Flat 18/3/53 - - 100 ft sq 60 ft sq - Yes 1 in 10 - Yes Yes Mancenita Hill 26/3/53 - - 100 ft sq 60 ft sq - Yes Cayote: 1 in 7 Water: sluice Sluice: 1 in 10 Little Deer Creek 28/7/53 100ft - 100ft sq - - - 1 in 10 Water Yes - 22/6/54 100ft - 100ft sq - - - 1 in 10 Water Yes - 5/8/54 100ft 60 ft sq Yes 1 in 10 Water Yes Yes Mammoth Springs 11/9/53 90ft (60ft in - - - - - 1 in 10 Yes - - banks) 15/11/53 90ft (60ft in - - - - Yes 1 in 10 River: until Yes - banks) workable Big Deer Creek 1/8/54 50ft 80ft sq Yes 1 in 10 Water Yes Yes Blue Lead 10/1/54 - - 100ft along - Yes Yes 1 in 10 - Yes Yes ditch Myres Ravine 15/1/54 100 ft sq Yes Yes 1 in 10 3 months Yes Yes 15/1/55 100 ft sq - 100 ft sq - - Yes 1 in 10 Water Yes - Willow Valley 23/1/54 - 100ft - 60ft sq Yes Yes Ravine: 1 in 15 Until workable Yes - Cayote: 1 in 20 Sandusky Hill 17/2/54 - - 100ft along Yes Yes 1 in 10 (but not if - Yes - lead tunnel is 60ft

100 Name Date Size of claims Marking of Restriction Ongoing work Protection if work Recorder Arbitration claim on number of required not possible Stream Ravine Hill / Sluice Cayote claims deep) Badger Hill 12/3/54 - - 50ft x 150ft - - Yes 1 in 10 If workable - - Lower Bush Creek 4/9/54 - - 60ft - - Yes - Water - - Mosquito Creek 22/9/54 - - 60ft - - Yes 1 in 10 Water Yes Yes 5/2/55 100ft 100ft 100 ft sq - - Yes 1 in 10 Water Yes - Cherokee 2/10/54 - - 150ft x 50ft 150ft x 50ft Yes Yes 1 in 10 Water Yes - North San Juan 5/11/54 - - 180ft x 80ft - Yes Yes - Water Yes - For 2 years if $500 of work done Junction Bluff 7/11/54 - - 100ft x 80ft - - Yes 1 in 10 Water Yes 17/5/57 - - 100ft x 80ft - - Yes 1 in 10 For 2 years if Yes $4000 of work done Round Mountain 21/2/55 150ft sq 100ft sq Yes Yes Sluice: 1 in 10 Sluice: Water Yes - Cayote: 1 in 30 And from Jun to Dec Prospect Hill 5/5/55 - - 100ft x 150ft - - Yes When payable Water Yes - American Hill 14/6/55 - - - - - 1 in 15 - Yes - Tiger Flat 9/2/57 - - 100ft to centre - Yes Yes 1 in 10 - Yes Yes of hill

101 Figure 3.4: Laws of Quartz Mining Districts in Nevada County

Name Date Size of claims Includes Marking Restriction Ongoing Date that work must Recorder Arbitration Restrictions Nevada “Dips and of claim on number of work commence on foreign County Angles” claims required miners Quartz Laws to apply Gold Mountain 30/12/50 30ft x 40ft Yes Yes 4/51 Yes Yes Yes (extended) 1/4/51 10/51 (extended) 29/9/51 10/52 Union Quartz 30/2/51 30ft x 40ft Yes Yes 6/51 Yes Yes Yes Mountain (extended) 24/5/51 9/51 (extended) 1/9/51 4/52 (extended) 1/4/52 9/52 (amended) 4/9/52 Yes 4/53 (extended) 2/4/53 4/60 Kentucky Hill 1/5/51 60 ft sq Yes Yes 8/51 Yes Yes Prospect Hill 1/5/51 60 ft sq Yes Yes 8/51 Yes Yes (extended) 29/7/51 1/52 Saunders Ledge 6/6/51 100ft on ledge Yes Yes Yes 1/52 Yes Day’s Ledge 21/10/51 50ft on ledge Yes Yes 5/52 Yes (extended) 26/4/52 1/53 (extended) 10/12/52 1/54 (extended) 28/12/52 1860 Lafayette Hill 10/11/51 80ft on ledge Yes Yes 7/52 Yes (extended) 2/7/52 7/53 (repealed) 20/12/52 Yes Indian Springs Hill 17/11/51 80 ft sq Yes Yes 8/52 Yes (amended) N/A 100 ft sq 1/53 (extended) 1/8/53 8/57 Jefferson Hill No. 1 16/12/51 80 ft sq Yes Yes 5/52 Yes (amended) 1/5/52 1/53 (amended) 1/1/53 1/54 (amended) 1/1/54 1/57

102 Name Date Size of claims Includes Marking Restriction Ongoing Date that work must Recorder Arbitration Restrictions Nevada “Dips and of claim on number of work commence on foreign County Angles” claims required miners Quartz Laws to apply Mary’s Diggings 31/12/51 60 ft sq Yes Yes 1/53 Yes Yes Yes Yes Rebecca’s Hill 3/1/52 100ft on ledge Yes Yes 1/53 Yes Weehawken Hill 17/6/52 100ft on ledge Yes Yes Yes 1 in 60 days 1/53 Yes Yes Rockwell Hill 17/6/52 100 ft sq Yes 1 in 60 Yes Yes Brooklyn Hill 22/6/52 100 ft on ledge Yes Yes Yes 6/53 Yes Nebold Hill 22/6/52 100ft on ledge Yes Yes Yes 6/53 Yes Mount Olivet 25/6/52 100ft sq Yes Yes Yes 6 months after location Yes Yes Union Hill No. 2 25/6/52 100ft sq Yes Yes 12/52 Yes Buffalo Hill N/A 100 ft on ledge Yes Yes Yes 7/52 Yes Caledonia Hill 29/6/52 100 ft sq Yes Yes Yes 1 in 60 3/53 Yes Yes Pecker’s Hill 29/6/52 100 ft on ledge Yes Yes Yes 6/53 Pierce’s Ledge 1/7/52 100ft on ledge Yes Yes Yes 1/53 Yes Sierra Nevada Hill 10/8/52 100 ft Yes Yes Yes Yes Blethen Hill 21/8/52 100 ft sq Yes Yes 1/53 Yes Yes Mount Pleasant 11/10/52 100ft on ledge Yes Yes 6/53 Yes Constitution Hill 21/10/52 100 ft sq Yes Yes 10/53 Yes Cedar Hill 17/10/52 100ft on ledge Yes Yes Yes 7/53 Yes Washington Hill 15/11/52 100 ft sq Yes Yes 7/53 Yes Boston Hill 21/11/52 100 ft sq Yes Yes 5/53 Yes Norton’s Hill 9/12/52 100 ft on ledge Yes Yes 7/53 Yes Empire Hill No. 1 N/A 100 ft sq Yes Yes 1/53 Yes (amended) 1/1/53 1/54 (amended) 1/1/54 1/57 Koskiusko Hill 1/1/53 100 ft on ledge Yes 1/57 Yes Ben Franklin Ledge 28/1/53 100 ft on ledge Yes Yes 1/54 Yes Jefferson Ledge 25/2/53 100ft on ledge Yes Yes Yes 2/54 Yes Pyrenees Hill 23/9/53 100ft on ledge Yes Yes 5/54 Yes Madison Quartz 18/8/55 Yes Yes Ledge & Hill Hoosac Hill N/A 100ft Yes Yes Yes 6 months Yes

103 Name Date Size of claims Includes Marking Restriction Ongoing Date that work must Recorder Arbitration Restrictions Nevada “Dips and of claim on number of work commence on foreign County Angles” claims required miners Quartz Laws to apply Sabastipool Ledge N/A 100ft on ledge Yes 1/60 Albion Hill N/A Yes Gold Hill No. 2 N/A Yes Independence N/A Yes Ledge Kentucky Fountain N/A Yes ledge Lewis Lead N/A Yes North Point Ledge N/A Yes Oro Fino Hill N/A Yes Pine Hill N/A Yes Quimbaugh Hill N/A Yes Richmond Hill N/A Yes Squirrel Creek Hill N/A Yes St Louis Ledge N/A Yes Texas Ledge N/A Yes Trenton Ledge N/A Yes

104 CHAPTER 4

MINING LAW IN GYMPIE

Gold was discovered in the area around Bathurst in New South Wales in 1851. Soon afterwards, gold was found in Victoria.1 For most of the 1850s, the business of gold mining was confined to the southern portions of the Australian colonies. Notwithstanding a small rush to Canoona in 1858, there was no significant discovery of gold in Queensland until James Nash’s strike at Gympie Creek in

1867. The area of discovery was proclaimed the Upper Mary Gold Field in October 1867 and soon became known as Nashville and later Gympie.2 Gympie’s gold deposits were formed as a result of the folding and faulting that is associated with volcanic activity. These geologic processes led to molten magma flowing into fissures into the surrounding rock, depositing minerals and creating quartz gold. Erosion exposed the quartz and swept it into the streams and rivers, creating placer deposits.3 The first gold found at Gympie was placer gold. As in California, miners excavated dirt in river beds, initially using pans and then the rocker and cradle to separate the dirt from the metal.

Quartz gold was also extracted using similar methods as in California. Gympie’s first quartz crushing machine was installed in March 1868 and the industry steadily developed through the 1870s. In 1871, the gold field had only 4 crushing machines and 59 stamp heads. All machinery on the gold fields totalled 13,033 pounds. By 1876, the gold field had 17 crushing machines, 110 stamp heads, and a total value of machinery of 49,410 pounds. By 1880, there were 32 crushing machines and 73,000 pounds worth of machinery on the gold field.4

From the time of Nash’s discovery through the decade of the 1870s, the Gympie mining industry was in a constant state of evolution. The early period of individual miners, armed only with pans, quickly gave way to a more permanent era of deep shafts, worked by scores of men that stretched many hundreds of metres into the earth. As the industry changed, so too did the organisation and

1 Serle, The Golden Age, p. 11. 2 Holthouse, Gympie Gold, p. 44. 3 Queensland Department of Mines and Energy, “Gold Occurrences on Southeast Queensland” , accessed 22 June 2009.. 4 Holthouse, Gympie Gold, p. 114.

105 collectivisation of miners. The small, individual miner who drove productivity in the early months of

Gympie’s existence struggled to maintain his prosperity as the business of mining became more expensive. Large mining companies began to dominate the industry during the 1870s. Mining law in

Gympie evolved and adapted to the changing nature of the mining industry, but always with a view to maximising the value that could be extracted from the gold field. In the early years, it was thought that productivity was maximised by having the most number of claims actively being worked. As the field matured, it became clear that the gold field was most productive if claims were worked by companies that had the capital to work them efficiently.

Unlike the Nevada County experience, the gold mining industry in the Australian colonies operated almost from the beginning under a formal mining law, but in a way that was complemented by local circumstances. From 1867 until 1874, the mining laws of New South Wales applied in Queensland.5

This law was administered in Gympie by a commissioner who exercised vast judicial, legislative and administrative powers. Miners derived title to their claims by occupation and continuous work; security of title was sacrificed in return for allowing new miners to easily enter the industry. The primary goal of this first mining law was to ensure that the maximum amount of gold bearing ground was being mined. This system of title may have been suited to the first months of the gold field, but was not suitable for miners who needed to construct more expensive machinery in order to work their ground. As the industry evolved, the interests of small miners diverged from those miners who wished to pursue more expensive projects and for whom the security of title was paramount. In an attempt to draft legislation more suited to the economic and geologic requirements of Gympie, a

Local Mining Court was established in 1868 under the provisions of the New South Wales legislation.

The Local Court was made up of local miners who, unsurprisingly, favoured the interests of the smaller miners over the larger companies. By this time, however, it was becoming clear that the future prosperity of the gold field lay in the more expensive business of quartz mining. In the absence of laws that were adapted to the needs of the larger miners, gaps were filled by informal laws and customs, particularly the discretionary enforcement of the law by fellow miners and administrators.

5 An Act to amend the laws relating to the Gold Fields 1857 (NSW) 20 Vic No. 29.

106 These informal laws and customs operated (albeit imperfectly) to assist miners to obtain the capital that they required to work their claims. In this period, the formal law was a step behind the development of the mining industry.

In an attempt to encourage investment, the Queensland parliament passed new mining legislation in

1874.6 This legislation recognised that productivity on the gold field was best served by a combination of security of title (to encourage investment) and title derived from the use of the land (to discourage inactivity). Gold field administrators were relegated to a mere supervisory role, intruding only in difficult cases, which allowed the market itself to regulate the mining industry. By 1880, mining law in Gympie was very much a combination of informal custom and locally developed laws applied by administrators. It was successful in encouraging large scale investment in the mining industry, but relied on a bureaucracy that was not placed to properly administer it. Innovative miners remained eager to exploit the law for their own ends.

In promoting the efficient extraction of gold, the mining law neglected the impact of mining on the environment. Miners who were intent on short term gain were supported by a legal regime that had productivity and efficiency as its only aims. The forgotten casualty of the law was the river system into which tons of contaminated tailings were dumped, the hills and valleys that were stripped bare of timber, and the wildlife that felt the effect of the chemicals used in the mining process.

Early Queensland mining law until 1869

As in the United States, the story of Queensland’s mining law begins in the sixteenth century with the

English principle of royal metals that reserved all precious metals for the Crown. The reception of

English law in New South Wales meant that, along with other laws, this concept formed part of the law of New South Wales. The body of mining law that developed in the Australian colonies after

1851, was an attempt to deal with this common law legacy. On 22 May 1851, soon after gold was discovered in the area around Bathurst in the Colony of New South Wales, Governor Charles Fitzroy issued a proclamation in which he affirmed the English common law of royal minerals and asserted

6 Act for the Management of Gold Fields 1874 (Qld) 38 Vic No. 11.

107 the Crown’s right to all gold discovered in New South Wales. As crowds of eager miners flocked to the creeks around Bathurst, a commissioner was appointed by the Governor to issue mining licences.

These licences gave to miners the Crown’s permission to extract gold from the land.7 When gold was found in Victoria in mid-1851,8 the Victorian government dealt with the issue of royal minerals by copying the licensing system of New South Wales.9 Like Fitzroy before him, the Victorian

Lieutenant-Governor Charles La Trobe proclaimed on 16 August 1851 that all gold found in Victoria was the property of the Crown, and that any person mining such gold was doing so illegally.10 A set of Victorian mining regulations, the first of its kind in the Australian colonies, was prepared and published on 18 August, which required miners to hold a licence from 1 September 1851 onwards.

By 1853, miners in Victoria were becoming increasingly resentful of “the method of collection and enforcement of the licence fee by the police, and the possibility that leases would be granted over large areas.”11 In May 1854, Governor Charles Hotham, who replaced La Trobe, was instructed to increase “pressure on the goldfields commissioners and the police to collect the licence fees from all miners and shopkeepers.” Tensions erupted in the famous Eureka rebellion in December 1854, which was a “watershed in relations between the miners and the government”.12 In the wake of this political upheaval, a Royal Commission was established to enquire into conditions on the gold fields. The

Commission’s report, delivered in March 1855, suggested that miners were dissatisfied with the administration of the gold fields, particularly the licence fee and the arbitrary policing of licences.

The Commission recommended the abolition of the licence fee and for it to be replaced by a ‘miner’s right’.13 The miner’s right was an attempt to reconcile the English law of royal minerals with the economic needs of miners, but was essentially licensing by another name (except that it gave its

7 Ralph W. Birrell, Staking a Claim: Gold and the Development of Victorian Mining Law (Melbourne, Vic.: Melbourne University Press, 1998), pp. 9-11. 8 Geoffrey Blainey, The Rush that Never Ended, 1st ed. 1963 (Melbourne, Vic.: Melbourne University Press, 1993), p. 29. 9 Blainey, The Rush that Never Ended, pp. 19-20. 10 Report of Commission on the Condition and Prospects of the Goldfields in Victoria, Votes and Proceedings of the Legislative Council, Vol III (1863), p. 1255. The principal of royal minerals was expressly recognised by the Attorney- General who cited the seminal English text by Bainbridge on the law of mines, and concluded that the common law of royal minerals was the law in Victoria. . 11 Birrell, Staking a Claim, p. 23. See also Serle, The Golden Age, pp. 95-119; Gollan, Radical and Working Class Politics, pp. 16-25. 12 Birrell, Staking a Claim, p. 29. 13 Birrell, Staking a Claim, p. 32.

108 holders the right to vote in relation to certain developments on the gold field). As a consequence of the Commission’s findings, the Act to amend the laws relating to the gold fields 1855 (Vic)14 was passed in Victoria in June 1855. In an early example of intercolonial legislative exchange, the

Victorian mining laws served as a basis for the Gold Fields Management Act 1857 (NSW) in New

South Wales.15

The colony of Queensland inherited the New South Wales legislation at separation from New South

Wales in 1859, eight years prior to gold being discovered in Gympie. As in Victoria, the centrepiece of the New South Wales mining law was the creation of the “miner’s right”.16 In return for a fee, the holder of a miner’s right could mine gold or occupy “in connexion with the object of mining so much of the said lands as may be prescribed under the rule and regulations”.17 The holder of a miner’s right was deemed in law to be the owner of the claim, and all gold was deemed to be the absolute personal property of the owner of the right.

The Gold Commissioners

The most important judicial figure on the Gympie gold field in the early years was the Gold

Commissioner. This position was created by the Gold Fields Regulations 1866 that were made in

November 1866 under the New South Wales legislation.18 The first Gold Commissioner was William

Davidson who assumed temporary control in Gympie only weeks after the discovery of gold.

Davidson issued the first miner’s rights in Gympie on 28 October 1867.19 A permanent

Commissioner was appointed one month later in the person of Henry Edward King, an Irish immigrant who was attracted to Australia by the gold rush in the southern colonies and arrived in

Sydney in 1852 at the age of 20. King had previously served as Commissioner for Crown Lands in

14 An Act to Amend the laws relating to the Gold Fields 1855 (Vic) 18 Vic No. 37. 15 An Act to amend the laws relating to the Gold Fields 1857 (NSW) 20 Vic No. 29. 16 Barry Ryan, “The law surrounding the 'Miner's Right': origin of the mining law of Queensland”, Journal of the Royal Historical Society of Queensland, 9(5) (1974) 101-14 (p. 108). 17 Section III, Gold Fields Management Act 1857 (NSW). See also Ryan, ”The law surrounding the 'Miner's Right': origin of the mining law of Queensland”, p. 108. 18 Gold Fields Regulations 1866 (Qld), Votes and Proceedings of the Queensland Parliament, Vol II, (1867), p. 1197. 19 Report on the Mary River Gold Fields for the year 1867, Votes and Proceedings of the Queensland Parliament (1868), p. 491; Report of the Royal Mining Commission, Votes and Proceedings of the Queensland Parliament (1871), p. 603.

109 the Mitchell District and on 28 November 1867, at the age of 35, King was appointed Gold

Commissioner at Gympie. King was assisted by Charles J. Clarke, who was appointed on 1 January

1868. King served until 21 July 1870 when he was succeeded as Commissioner by John O’Connell

Bligh (Figure 4.1).20

Figure 4.1: The Gold Commissioners

Henry Edward King John O’Connell Bligh

Courtesy: John Oxley Library

The Commissioner had wide ranging and discretionary judicial, legislative and administrative powers.

John Hirst has argued in relation to the New South Wales commissioners that “there was one major social inequality at the diggings – that between the Commissioner and everyone else.”21 Official power on the gold fields came to “rest in the commissioner’s hands”. He had “the power to punish

20 A. A. Morrison, M. Carter, “King, Henry Edward (1832 - 1910)”, Australian Dictionary of Biography, Volume 5 (Melbourne University Press, 1974), p. 27; Votes and Proceedings of the Queensland Parliament (1871), p. 310; Votes and Proceedings of the Queensland Parliament (1872), p. 216. 21 J. B. Hirst, The strange birth of colonial democracy: New South Wales 1848-1884 (Sydney, NSW: Allen & Unwin, 1988), p. 204.

110 minor crime, settle small debt cases, and commit serious offenders to a higher crime.”22 The commercial and criminal duties of the Commissioner are discussed in later chapters, but importantly for the development of mining law, the Commissioner could decide any dispute that arose “in any matter connected with gold fields management”.23 The problem for commissioners was to reconcile their vast responsibility with the dearth of resources that were at their disposal to execute these responsibilities. Commissioner King worked from an “office” that was little more than an “old, primitive bark humpy”.24 His work was long and arduous and he was pulled, often simultaneously, in many different directions. King was required to “be at his office all day to adjudicate cases in the

Police Court”, to “give a satisfactory decision in the event of disputes arising four or five miles away from his office”, and to “be present on the spot in order to do so”. King was also required to “conduct the red-tapeism correspondence inseparable from the Civil Service”, to “ride at a minute’s notice a distance of 60 or 70 miles at the request of a prospector”, and to “attend to other matters.”25

The most common criticism of the commissioners was that they did not attend to their duties in a timely manner. This is understandable given their workload. In 1868 alone, the Commissioners issued over 8,000 miner’s rights (see Figure 4.2). Even if only 10 per cent of applicants marked out a claim, this created a tremendous amount of physical and administrative work. In April 1868, when gold was discovered in nearby Kilkivan, Commissioner King attended the rush in order to keep order, decide disputes, and register claims. He left Assistant Commissioner Clarke to take care of affairs in

Gympie. On Monday, 4 May 1868, while King was still away, Clarke was called away from his office to decide a mining dispute. That same day the Small Debts Court was scheduled to be held, but no justices were present to conduct the proceeding. The following Wednesday a similar problem faced the court when “no magistrates could be found who could devote more than a few minutes to court business”.26 On 30 May 1868, Mr Lord was appointed as an Acting Commissioner so that he could proceed to the diggings at Yabba for the purpose of issuing Miners’ Rights. This was necessary

22 Hirst, The strange birth of colonial democracy, p. 201. 23 Reg. 4, Gold Fields Regulations 1866 (Qld). 24 Nashville Times, 4 July 1868; See also Nashville Times, 3 June 1868. 25 Nashville Times, 30 May 1868. 26 Nashville Times, 9 May 1868.

111 “owing to the immense pressure of business on Mr King”.27 Even when the commissioners were present in Gympie, they were not always available immediately. In July 1868, for example, one miner complained that after having deposited 20 shillings with the Commissioner to have a case decided concerning ground about half a mile from his office, it took ten days for the Commissioner to find time to adjudicate the dispute. Another miner complained of the “law’s delays” and its “red-tape complications”.28

Figure 4.2: Miner’s Rights issues between 1868 and 1880

No. of Miner’s Rights 1868 8,287 1870 1,520 1871 1,235 1872 1,272 1873 1,168 1874 924 1875 1,144 1876 1,075 1877 1,155 1878 1,185 1879 1,204 1880 1,104

Source: Statistics of Queensland, Votes and Proceedings of the Queensland Parliament 1868-1880

When the Commissioner was called upon to decide a mining dispute, the case was not decided in the formal courts of justice, but was heard informally “on the ground”.29 When notified of a dispute, the

Commissioner travelled, either by foot or on horseback, to the site of the dispute, and convened his court. The court might be convened at the “nearest tree” where the “Commissioner’s orderly in silver laced cap would sing out in a stentorian voice, ‘Now gentlemen ... this Court is now open for conduct of business.’”30 Defendants in these matters did not usually have much time to prepare a defence. On the morning of 27 October 1868, for example, John Coller was working with William and Joseph

27 Nashville Times, 30 May 1868. 28 Nashville Times, 19 February 1868. 29 Section XIII, Gold Fields Management Act 1857 (NSW). 30 “Early Gympie incidents, from an early pioneer”, Gympie Times, Special Edition, Gympie’s Jubilee 1867-1917, p. 17.

112 Carroll on their claim, No. 10 North New Monkland Reef. While working, the men were served with

a notice stating that “the Commissioner will be on the ground of No. 10 New Monkland North at Two

PM this day to settle dispute respecting the share in your claim and which I claim as my property”.31

Speedy resolution of mining disputes was the goal. Commissioner King himself believed that

proceedings in his court should be “prompt” and that a miner should be able to “represent his case

properly without professional assistance.”32 Evidence was taken orally, but not recorded. Affidavit

evidence was avoided where possible.33 The editor of the Gympie Times wrote of the “difficulties

connected with the hearing of disputes on the ground … and of the patience and forbearance required

in dealing with men who, used to fighting their way on a goldfield, have not a refined way of

expressing themselves”.34 Decisions were made in public and crowds often gathered to watch

proceedings. The crowds may have even influenced the decision making process. One miner

described the “contemporaneous laughter of a few bystanders” that forced the Commissioner to

“reconsider his measurement” of a claim.35

If requested by the parties, the Commissioner could appoint two assessors to assist him in his

determination. This was particularly common in the early years. On 17 June 1868, when

Commissioner King heard the complaint of a Mr Spry against George Curtis, King appointed James

Bentham and William Porter to act as assessors. Similarly, on 27 October when the Commissioner

heard the dispute between Eugene Regan and John Collers, each party appointed one assessor.36 The

31 In the matter of the application of John Day Coller (SRS5720, Writs of prohibition files, 1868-1870, Queenland State Archives, Brisbane). For other examples of cases heard by the Commissioner on the ground, see In the matter of the application of J E D Byrne (SRS5720, Writs of prohibition files, 1864-1868, Queenland State Archives, Brisbane) in which Commissioner Davidson heard the complaint lodged by Messrs Lawrence and Pollock against a Mr Gellaty; In the matter of the application of Alfred Godfrey (SRS5720, Writs of prohibition files, 1864-1868, Queenland State Archives, Brisbane) in which Commissioner King heard the applications of Joseph May and Joseph Hannon against Alfred Godfrey; In the matter of the application of Franklin Lawrence & Ors (SRS5720, Writs of prohibition files, 1864-1868, Queenland State Archives, Brisbane). 32 Testimony of H E King, Royal Commissioner’s Report, Votes and Proceedings of the Queensland Parliament, 1871, p. 605. 33 In the matter of the application of Franklin Lawrence & Ors (SRS5720, Writs of prohibition files, 1864-1868, Queensland State Archives, Brisbane) in which Commissioner postponed the hearing for the specific reason that he would not accept affidavit evidence. 34 Gympie Times, 17 November 1868. 35 Gympie Times, 5 September 1868. 36 In the matter of the application of Spry (SRS5720, Writs of prohibition files, 1864-1868, Queensland State Archives, Brisbane); In the matter of the application of John Day Collers (SRS5720, Writs of prohibition files, 1868-1870, Queensland State Archives, Brisbane). See also In the matter of the application of Alfred Godfrey (SRS5720, Writs of prohibition files,

113 appointment of assessors was much criticised. One miner argued that many assessors acted “as partisans, each to fight the battle of the party which pays him” and recalled that “an assessor after giving his decision went to the parties who won the case and told them they ought to give him 10 pounds, for without him they would not have got a verdict”. Other assessors, it was argued, “are paid in a different way – they receive their wages in shares in the claim which is won by their decision”.37

By 1871, Commissioner King considered the system of assessors to be “of no value.”38

The practical reality for the vast majority of the Gympie miners was that the informal and sometimes hastily made decisions of the commissioners were final; their decisions were rarely tested in any forum other than the forum of public opinion in the local newspaper.39 The Commissioner’s decision could technically be appealed if the damage exceeded 10 pounds. In these circumstances, the losing party could appeal to “the next court of general or quarter sessions of the peace.”40 This was particularly difficult prior to 1869 when the closest District Court was in Maryborough. As a practical matter, however, there was rarely a detailed record of the decision on which to base an appeal. In the case of Lawrence and Pollock v Andrew Gellatty, Commissioner King recorded only one line:

“Defendants shewed occupancy and continued possession prior to application of complainant for prospectors claim. Verdict for defendant”.41 Even less detail was provided in the case of James

Hannan and Joseph Hay v Alfred Godfrey in which the Commissioner wrote: “Hannan complains that

Godfrey encroaches on his claim and disputes his title. Witness for Plaintiff – Thomas Ipps. Verdict for Plaintiff”.42 This meant that in order to lodge an appeal, an appellant had to call the Commissioner as a witness and also find other witnesses who could recall the proceedings. For this reason, along with the cost and inconvenience of an appeal, very few decisions were appealed. Only 6 appeal cases

1864-1868, Queensland State Archives, Brisbane); In the matter of Thomas Linklater (SRS5720, Writs of prohibition files, 1864-1868, Queensland State Archives, Brisbane). 37 Gympie Times, 22 February 1871. 38 Testimony of H E King, Royal Commissioner’s Report, p. 606. 39 Reg. 5, Gold Fields Regulations 1866 (Qld). 40 Section XXXIV, Gold Fields Management Act 1857 (NSW). 41 In the matter of the application of J E D Byrne (SRS5720, Writs of prohibition files, 1864-1868, Queensland State Archives, Brisbane). 42 In the matter of the application of Alfred Godfrey (SRS5720, Writs of prohibition files, 1864-1868, Queensland State Archives, Brisbane).

114 were heard by the Supreme Court in 1868, with a further 3 in 1869.43 From a practical perspective,

therefore, ultimate legal authority rested with the Gold Commissioners. This allowed a very local

jurisprudence to develop that adapted and evolved to suit the changing nature of the mining industry.

The application of early Queensland mining law to 1869

The primary purpose of Queensland’s first mining law was to ensure that the maximum amount of

gold bearing ground was being mined and, in this way, maximise the productivity of the gold field as

a whole. This was confirmed by Commissioner King in 1871 when he observed that “[i]t appears to

me that the interest of the Government is to assist the development of the gold fields by such

regulations as shall prevent the monopoly of ground, and holding it unworked.”44 As in Nevada

County, miners derived title to their claims by occupation and continuous work. If they stopped

working, they were liable to forfeit their claim. Security of title was sacrificed in return for allowing

new miners to enter the industry by occupying claims that were not being worked. This system of

title was best suited to the early days of a gold field when claims were found in shallow alluvial

deposits, but as J. R. Thackeray observed, “as the alluvial become less rich, or rather as the areas

worked became exhausted, mining for gold in the quartz became more extensive.”45 By 1871,

virtually no alluvial mining was carried out in Gympie; quartz mining was the dominant industry.46

As explained previously, this form of mining was expensive. As deeper deposits began to be

exploited, the need for capital led to a demand for greater security of title. Productivity quickly

became understood not as the number of active claims, but the number of quartz mines that were

supported by the necessary infrastructure. In the absence of legislation that encouraged investment,

the application of informal customs, and the development of local jurisprudence out of the decisions

of the commissioners, provided some level of security of title.

43 These statistics are taken from a review of SRS5720, Writs of prohibition files, 1864-1868 and 1868-1870, Queensland State Archives, Brisbane. 44 Testimony of H E King, Royal Commissioner’s Report, p. 603. 45 J.R. Thackeray, Gympie and its District: A Field for migration and Settlement (Maryborough, Qld: Robinson & Co, 1885), p. 23. 46 Testimony of H E King, Royal Commissioner’s Report, p. 603; See also Testimony of John O’Connell Bligh, Royal Commissioner’s Report, p. 606.

115 The Goldfields Management Act 1857 (NSW) and the Gold Fields Regulations 1866 (Qld) imposed low barriers of entry into the business of placer gold mining. The process of making a claim was fairly simple. All that a miner was required to do was to mark off a certain amount of land (the size of which was set out in the Goldfields Regulations 1866 (Qld) (Figure 4.8)).47 This was achieved by

“driving in at each corner a substantial peg to stand at least two feet above the ground, which shall be kept at all times clear of rubbish or soil”. It was not permissible to “remove, injure, destroy, or cover” these pegs.48 This was considered to be “good and sufficient title” to the claim until payable gold was discovered.49 It was claims of this type that Edward B. Kennedy noticed when he first arrived in

Gympie. Kennedy arrived in the Colony of Queensland from London in 1864. He was a keen observer of Queensland life and in 1870 published his recollections in a memoir titled Four Years in

Queensland.50 Kennedy recalled that in the tail of a Gympie gully he “first saw diggers working in true style: about four ‘claims’ were marked out by means of stakes driven in at the four corners of each claim.”51 If Kennedy’s miners discovered gold, their discovery had to be reported to the

Commissioner. Once a claim was properly marked out, the claim had to be worked within forty-eight hours.52 If no work was done for three days, the regulations specified that the claim was “liable to be forfeited”.53 These rules promoted the interests of the smaller miners by lowering the barriers to entry into the Gympie mining industry and ensuring that claims continued to be worked (Figure 4.7).54

As in the mining codes of Nevada County, the 1866 Regulations limited the size of each claim in order to ensure that the whole of a claim was continuously worked. Miners who occupied a river claim were allowed “thirty feet … in the beds of rivers or main creeks, running across the whole

47 For reasons of size, figure 4.8 can be found at the conclusion of the chapter at p. 148. 48 Reg. 14, Gold Fields Regulations 1866 (Qld). 49 Reg. 10, Gold Fields Regulations 1866 (Qld). 50 E. B. Kennedy, Four Years in Queensland (London: Edward Stanford, 1870). Kennedy later served in the Queensland Native Police and in 1902 published his recollections in a book that has been widely cited, The Black Police of Queensland: reminiscences of official work and personal adventures in the early days of the colony (London: Murray, 1902). 51 Kennedy, Four Years in Queensland, p. 208. 52 Reg 16, Gold Fields Regulations 1866 (Qld). 53 Reg 13, Gold Fields Regulations 1866 (Qld). 54 For reasons of size, figure 4.7 can be found at the conclusion of the chapter at p. 147.

116 bed.”55 An alluvial claim that was not in the bed of a creek, called a ‘frontage claim’, was not to exceed one hundred and twenty feet on the base line, which was the line of the gold deposit that was determined by the Commissioner. The initial claim could be twelve hundred feet wide, but when payable gold was found, the width was reduced to two hundred feet.56 Diggings on frontage claims could not exceed fifty feet.57 Where diggings exceeded this depth in ‘dry’ claims, the extent of ground allowed to be claimed was between forty by forty feet and sixty by eighty feet, depending on the number of people involved in the claim.58 Where it was a ‘wet’ claim in which reinforcement of the shaft was necessary, the size ranged from fifty by one hundred feet to one hundred by one hundred feet.59 Finally, the prospecting area for a quartz reef was between four hundred feet by six hundred feet, and could be as large as eight hundred feet by six hundred feet, depending on the distance from other known working reefs.60 Once payable gold was discovered, the claim area shrunk to four hundred feet by two hundred feet on either side of the supposed centre of the reef.61 In all claims, the number of miners entitled to hold a claim was limited to four (Figure 4.8).62 This was an important limitation because it discouraged significant capital investment. If miners were restricted by the number of claims that they could hold at any one time, and were prevented from combining their claims and working them as a whole, the profit that they could extract from a claim was also limited, which could not necessarily offset the cost of expensive machinery.

These rules comprised part of the broad administrative apparatus that was prescribed by the Gold

Fields Management Act 1857 (NSW) and the Gold Fields Regulations 1866 (Qld) that were made under it. The administration of this legislation required constant vigilance on the part of the

55 Reg. 30, Gold Fields Regulations 1866 (Qld). 56 Reg. 34 and 35, Gold Fields Regulations 1866 (Qld). Note that marking a frontage claim was done my erecting a post at each end of the claim, and once payable gold was found, marked also by posts at each corner of the claim. The posts had to be larger than three inches in diameter and had to be at least three feet tall: Reg. 39. 57 Reg. 34, Gold Fields Regulations 1866 (Qld). 58 Reg. 45, Gold Fields Regulations 1866 (Qld). 59 Reg 47, Gold Fields Regulations 1866 (Qld). 60 Reg 54, Gold Fields Regulations 1866 (Qld). 61 Reg 58, Gold Fields Regulations 1866 (Qld); A quartz claim was initially to be marked out by the “erection of two substantial posts … at each end of the claim, on the supposed line of the reef, to stand at least three feet high”: Reg 55. Once gold was discovered, a post was to be placed on the base line at each end of the claim, and then one at each corner: Reg 65. 62 For reasons of size, figure 4.8 can be found at the conclusion of the chapter at p. 148.

117 Commissioner to survey claims, to set out the line of the vein, and to ensure that claims were being properly worked. The reality, however, was that the colonial bureaucracy did not have the resources to properly administer the legislation. Aleck Ivimey recalled that the “skeleton Mining Department” had “neither men nor money nor anything else.”63 The Gold Commissioner, by himself, certainly did not have the time or the resources to effectively enforce all the rules relating to the gold field. In a solution that had parallels in Nevada County, regulation was left to individual miners, most visibly through the practice of claim jumping. When Edward B. Kennedy arrived in Gympie he noticed

“numerous deserted claims, looking like grave-yards.”64 Claim jumping was a process by which one miner would take and occupy one of these deserted claims and work it as if it was his own. It was through claim jumping, and not through the work of the colonial government or the Gold

Commissioners, that it was intended that idleness and monopoly would be prevented. Put another way, just as in California, mining in Gympie was regulated more by the market rather than by administrators of the law.

The simplest form of claim jumping occurred where a claim was left unoccupied and another miner assumed occupation, thus ‘jumping’ the claim. This was relatively common in Gympie and was an acceptable method of laying claim to an area. In the early days of the Gympie gold field, miners moved quickly from one claim to another, mining the most profitable gold and moving on.65 When a miner thought that the period for inactivity on a particular claim had been exceeded, he assumed occupation of the claim. Although this practice was regarded as widespread, reports of specific cases rarely made the papers. Perhaps this was because the claims were legitimately abandoned, or because these cases of jumping were so commonplace.

It was more controversial when a miner appeared to occupy a larger claim than that to which he was entitled and another miner jumped his excess claim. The Gold Fields Regulations 1866 (Qld) specified that “any miner marking off more ground than he is entitled to … shall be liable to have the

63 Aleck J. Ivimey, The Gympie Mining Handbook (Brisbane: Muir and Morcom, 1887), p. 17. 64 Kennedy, Four years in Queensland, p. 208. 65 Royal Commissioner’s Report, p. 576.

118 ground so marked off, pegged off at either end by the disputant.”66 Between February and August

1868, eight cases of this type of claim jumping were reported in the Nashville Times.67 All but two of these cases were decided against the jumpers.68 It is impossible to draw any firm conclusions from such a small sample of cases, but it offers a glimpse into Commissioner King’s early preference for security of title. Indeed, it was not uncommon during the conduct of a jumping case for the

Commissioner to “cast slurs upon a man for jumping ground”.69 By 1871, King’s personal view was that “the colony will suffer from the disinclination which capitalists will feel to invest money on insecure titles.”70 He observed disparagingly of the frequent “attempts to jump a claim on the ground that some of these minor regulations had not been carried out.”71 Such a case occurred in April 1868 when a miner jumped the claim of a Mr Lord on the Lady Mary Reef. On Saturday, April 11, the miner convinced a reluctant Commissioner to hear the case on the following Wednesday. According to the miner, he had measured Mr Lord’s claim, and Lord admitted that his claim was too large, but that he would not give up a portion of the claim without being heard before the Commissioner. The

Commissioner agreed with Lord and allowed him to keep his claim.72 Thus, while claim jumping was an accepted method of administering the gold fields, the practice was most acceptable when it was the occupation of an abandoned claim. It was less acceptable to challenge an existing occupant’s title to a portion of his claim.

As the gold field matured and the shallow deposits began to be worked out, it became more expensive to conduct the business of mining. Mere occupation of a mining claim no longer meant that a miner had the ability to work it. Where previously a miner had only needed a pick and a shovel, by as early as the middle of 1868, he required more extensive and expensive machinery. The issue that faced the miners was that this industry was regulated by a mining law that promoted the continuous working of

66 Reg 15, Gold Fields Regulations 1866 (Qld). 67 Nashville Times, 21 March 1868; 18 April 1868 (two cases); 20 June 20 1868; 24 June 1868; 22 July 1868; 26 July 1868; 15 August 1868. 68 For later cases, see Gympie Times, 28 November 1868; 18 April 1870. 69 Nashville Times, 18 April 1868. 70 Testimony of H E King, Royal Commissioner’s Report, p. 604. 71 Testimony of H E King, Royal Commissioner’s Report, p. 603. 72 Nashville Times, 18 April 1868.

119 mining claims, but increasingly miners did not always have the capital to immediately work their claim, or the time to raise that capital. The changing nature of mining meant that productivity could no longer be measured simply by the number of claims being worked. What was important was the amount of gold that was produced. The law, as written in the statute books, provided that a claim was liable to be forfeited if it was not being worked. The commissioners solved this problem by choosing not to apply the law strictly. The changing mining industry meant that the commissioners allowed claims to lie idle if the claim holder was in the process of obtaining capital. The Commissioner had a general power to grant “protection” of a claim if, for example, the claim was unable to be worked through illness, court attendance, or some other “urgent business” (Figure 4.7).73 Contrary to the rigid letter of the 1866 Regulations, the Commissioner expanded on this basic principle to allow miners to obtain protection of their claims until they could obtain further capital to continue working their claim. Protection was usually granted for a number of months. One miner wrote that “miners only working their quartz claims for the short space of six weeks, have had registry certificates granted them for a period of two and three months, simply obtained by asserting their inability to carry on.”74

The availability of protection registration to allow miners time to obtain capital solved one problem, but a second problem was the availability of capital itself. Echoing a debate that had occurred in

Nevada County 15 years earlier, miners in Gympie recognised that title to their mining claims was inherently insecure and was not therefore conducive to attracting investment. Investors were unlikely to provide capital unless they could be certain that the company in which they were investing held a strong and indefeasible title to its mining claims.75 In June 1868, one miner noted that the problem was that capitalists were held back from “circulating and opening out our Gold Fields” because they were “fearful from a shaky foundation to build.”76 By the middle of 1868, a fierce debate was being waged in both the mines and in the newspaper pages as to how to best balance the interests of existing

73 Reg 12, Gold Fields Regulations 1866 (Qld). For reasons of size, figure 4.7 can be found at the conclusion of the chapter at p. 147. 74 Nashville Times, 17 June 1868. 75 Testimony of Charles Barlee, Royal Commissioner’s Report, p. 615. 76 Nashville Times, 17 June 1868. For similar sentiments see Nashville Times, 29 April 1868.

120 and future claimholders. The dilemma was to provide for the development of the mining industry and encourage capital without, at the same time, squeezing the small miner out of Gympie altogether.

Unlike Nevada County, the mining industry in Gympie was from the beginning governed by colonial legislation. However, the Queensland government did not have the resources to adequately administer the regime that it had created. Thus, one tension in the legal order of the Gympie region was the failure of the colonial bureaucracy. In the absence of colonial regulation, mining was regulated by the market, allowing the law to reflect the popular economic consensus. When the

Commissioner was called upon to decide title disputes, it is likely that he exercised his discretion in favour of security of title and indirectly the entrepreneurial class of miners. In this, we see a hint of the Horwitz view that the law contained within it a bias towards big business.

Opposition to leasing and the Gympie local court: 1869-1874

As miners turned increasingly to quartz mining, the issue of security of title became more important.

One solution to this problem was to grant mining leases. The regulations provided that “leases of an area not exceeding eight acres of alluvial land, five hundred yards of a river bed, or four hundred yards on the line of a quartz vein, by a width of one hundred yards on each side of the supposed centre of the reef” could be granted for a period of five years. Leases could be granted for a period up to twenty-one years.77 An application for a lease had to be made to the Commissioner, who would then pass the application to the Colonial Government, which would rule upon the application and issue the lease.78 In theory, the leasing system would promote productivity. The Nashville Times published a lucid editorial in June 1868 arguing that leasing would encourage “proper machinery for manufacturing into a profitable form the crude rock taken from Mother Earth.” Large blocks of worked out land may be made valuable through the injection of capital and more efficient machinery.

77 Reg. 93, Gold Fields Regulations 1866 (Qld). 78 Reg. 94, Gold Fields Regulations 1866 (Qld).

121 This would not interfere with the small miners because no ground would be taken up which was being worked.79

The argument over leasing was the most visible manifestation of a wider debate over the meaning of productivity and the desire to allow all miners equal access to the gold field. To begin with, each lease was required to be forwarded to Brisbane for approval, and the correspondence on the subject usually occupied several months before the application was finally approved. During this time, the ground did not need to be worked.80 The small miners in Gympie argued adamantly against the leasing system, suggesting that leasing provisions in the regulations were abused. In May 1868, one miner wrote that “it is of utmost importance that those interested in the future prosperity of the River

Mary Gold Field should indignantly protest against the insidious dodge of the reef speculators, who are endeavouring to shut out the miners from the borders of our leading reefs by making application for leases of extensive areas for a term of years on well-established payable quartz reefs.”81 That same month, the Nashville Times published a petition addressed to the Minister of Lands and Works that received “a great many signatures”. It requested that the Minister not grant any leases of gold bearing ground. The petitioners gave four reasons: that the granting of leases would “lock up a vast amount of land and lock out the working miner from employment”; that it was of “the utmost importance that the poorest miner may have a chance of obtaining a living here”; that the gold field was only in its infancy regarding quartz reefing; and that most of the applications were purely speculative, which would “curtail the field of the industrious working miner, and establish a monopoly of the land.”82 A Monkland miner was more cynical of the motives of many applications for leases when he suggested that “there is a band of men on this goldfield whose sole occupation is jumping and applying for leases, so as to sell the ground then claimed to those who will work it”.83

By the middle of 1868, division in Gympie over the future development of the field led to calls for

79 Nashville Times, 17 June 1868. 80 Testimony of H E King, Royal Commissioner’s Report, p. 605; See also Testimony of Clarendon Stuart, Royal Commissioner’s Report, p. 613. 81 Nashville Times, 26 February 1868. See also Gympie Times, 1 January 1870; Testimony of Theodore Byrne, Royal Commissioner’s Report, p. 616. 82 Nashville Times, 30 May 1868. 83 Gympie Times, 19 November 1868.

122 legal reform. Some miners advocated the “complete revision of the mining regulations for

Queensland,”84 but a louder majority wished to establish a local court on the gold field, consisting of an elected body of practical miners, to draft regulations specifically suited for Gympie.85

The Gold Fields Management Act 1857 (NSW) provided that “upon petition of not less than one hundred persons holding Miner’s Rights or leases” the Governor could declare a gold field a district for the purpose of forming a local court. The court would “have power to frame rules and regulations” in relation to “the extent and position of any claim, the conditions on which it shall be worked, and the application and use of machinery.”86 A court, if established, consisted of a chairman, and 9 members all of whom were required to hold a valid miner’s right and be elected by the members of the mining district. Each member was appointed for a period of twelve months. In June 1868, a petition signed by 645 miners was presented to the Legislative Council. The petition claimed that “it is unwise to leave the power of local legislation in the hands of any Government” and recommended that a local mining board be created in Gympie.87 The Queensland Government granted the wish of the Gympie miners and agreed to establish a local court in Gympie, but it was not until August that the court was actually established.88

The purpose of the Gympie Local Court was to allow miners to make rules to regulate their local industry. Mirroring the Californian legislative experience, opposition to monopoly was most significant issue for miners in July and August 1868. At a raucous meeting on Saturday 1 August to nominate candidates to serve on the Local Court, every nominated candidate referred, in one way or another, to his opposition of leasing.89 Reflecting the popularity of the new institution, voters

84 Nashville Times, 20 May 1868. For support of the establishment of a Local Court see Nashville Times, 17 June 1868; 18 May 1868. 85 Nashville Times, 17 June 1868. 86 Section XXI, Gold Fields Management Act 1857 (NSW). In practice, however, although local mining boards were used extensively in Victoria, they were rarely formed under the New South Wales legislation. One rare example in New South Wales is the town of Kiandra, which was offered to the Queensland colonial government as an example. 87 Votes and Proceedings of the Queensland Parliament (1869), p. 441. 88 Nashville Times, 8 July 1868; 18 July 1868. Also see the editorial in Nashville Times, 14 July 1868 for an discussion of the delay between approval of the Local Court and its establishment. 89 Nashville Times, 5 August 1868. For example, James Fisher opposed to monopoly of every description and large leases of ground, Mr Milligan pledged to oppose the leasing of new ground, but not old abandoned ground, Mr Hunter opposed the granting of large auriferous tracts of ground and was opposed to protections being granted by Commissioner, Mr McGhie was opposed to the leasing of new ground, as was Mr Maiden and Mr Lord.

123 collected on Commissioner’s Hill two days after the nomination to elect their representatives in a

“most animated scene” that lasted the whole day.90 Similarly, in November 1868, when an election was held to replace Mr Lord, around 1,000 votes were cast amid “great excitement”.91

The first meeting of the Court was held on 13 August 1868. Present at this meeting was the

Chairman, Commissioner King, along with the elected members. The Court was originally scheduled to sit twice a week on a Wednesday and Saturday. Transparency was important and the business of the Court was to be conducted with open doors, but it was decided that any member might require the exclusion of strangers while certain questions were discussed. Court procedure was formal. Motions were proposed, seconded and amended. Any member who wished to speak was made to stand and no

“offensive or unbecoming language” was to be tolerated. Any member so doing had to “retract the same and tender an apology”.92

The local court may have been intended as a local institution, but it drew inspiration from earlier colonial experience. Several of the first members had previous experience with the local courts, such as Thomas Browne in New South Wales and James Mulligan in Ballarat. These members were fully expected to use their experience of New South Wales and Victorian mining law to mould Gympie’s mining laws. The first registrar, Robert Critchley previously worked in Ballarat and “helped largely to lick the first court into shape in his capacity as mining registrar.” One miner recalled that he then arrived in Gympie with “his mining books, almost the only things of that sort on Gympie, and he was in a way indispensible.”93

Although the Local Court could hear all disputes that related to a breach of the regulations, the court in its judicial capacity was overwhelmingly concerned with partnership disputes, which are discussed further in Part 2. A review of the 76 cases heard by the Local Court in 1868 reveals that 73 of these were partnership disputes. In these cases, one partner commonly claimed expenses or wages owed to

90 At the end of the day, McGhie received most votes (988), following by Hamilton, Browne, Fisher, Barber, Goodchap, Milligan, Goodwin and Lord: Nashville Times 5 August 1868. 91 Nashville Times, 26 November 1868. 92 Nashville Times, 15 August 1868. 93 Ivimey, The Gympie Mining Handbook, p. 17; See also Testimony of Robert Critchley, Royal Commissioner’s Report, p. 609.

124 him, or requested that the partnership be dissolved. Other than in this commercial sense, the Local

Court did little in its judicial capacity to enforce the mining regulations. Nevertheless, when the court did make a decision, Commissioner King, in his role as Chairman, clearly understood that these rulings had to be consistent and had value as precedents. At one of the early sittings of the Local

Court on November 19, the Court heard two cases of the shifting of pegs marking out claims. This was the first time that offences of this type came before the Court and the Court imposed light penalties. King warned that “all future cases of this kind would be punished severely”, suggesting that citizens could rely on an earlier local court case as a guide to its future decisions.94

The local court was more active in its legislative capacity. From its inception, committees of miners were formed to draft new mining regulations. The first version of these rules was drafted in October

1868 and generally promoted the interests of small miners by reducing the size of claims so as to allow more individual miners access to a claim. Frontage claims were reduced to 40 feet along the lead, with a width of 1,200 feet, to be reduced to 160 feet on the discovery of payable gold. Quartz claims were substantially reduced to 40 feet by 300 feet. The overriding goal of these changes was to minimise the threat of the gold field being monopolised by large mining companies, and to keep the field open to the small miner. This was also reflected in what can be described as the “provisions against co-operation” that were inserted into the rules. Quartz claims were restricted to a maximum of

8 men’s ground. River, creek and frontage claims were similarly limited. Most importantly, the

Rules made no provision at all for leasing. This is unsurprising given that the court was elected by ordinary miners.95

The Local Court rules, like the Gold Fields Regulations 1866 (Qld), required claims to be constantly worked. In this sense, they continued to favour the interests of the small miners in an era when the interests of capitalists were becoming increasingly important. Whereas under the Gold Fields

Regulations 1866 (Qld), a claim that was not worked for 3 days was liable to be forfeited, under the

Local Court rules, a prospecting claim was required to be “effectively and continuously worked” on

94 Gympie Times, 21 November 1868. 95 Stoodley ”An Early Aspect of Queensland Mining Law: The Area of Gold Mining Leases” p. 182.

125 “every lawful working day during its occupancy.”96 Once gold was found, the claim was liable to be forfeited if not worked in 2 days, rather than the 3 days under the 1866 Regulations. Further, the

Local Court rules required that on frontage claims, every shareholder, or his or her representative, had to be present on the claim from 10am until 12pm daily (Figure 4.7).97

By 1870, the Gympie population was losing interest in the local court and the court and its members were often objects of derision.98 This was also the experience of the local mining boards established in Victoria.99 As early as November 1868 comments were made in Gympie about corruption of officials and the “clique in the Local Court”. In 1869, Dyson Aplin wrote that “one seldom hears the

Court or its works spoken of without a joke or a burlesque or something worse”.100 T. H. Linklater similarly noted that “the chairman is the only person bound by an oath, the members are an irresponsible body … they are not even sworn in like common jurors or assessors.” He continued that

“scarcely a case comes before them but that some one or more of the members may have heard or known something before, yet there is not caution given to remind them of the necessity of disabusing their minds of any fore-knowledge they may have had, or of any prejudgment they may have arrived at.” Linklater concluded that the Local Court “will never secure the confidence of the public or that amount of respect which every court of justice should command. For many months the court has been looked on with disfavour.”101 Ratcliffe Pring explained in the Report of the Royal Commission that public dissatisfaction with the Court was caused by “the uncertain meaning and doubtful legality of laws, framed by those who, perhaps, may not possess sufficient legal knowledge for the purpose”.102

In this climate, attendance at the local court by its elected members was poor. Figure 4.3 sets out the attendance of members at the Local Court meetings from its inception until November 1868. Less

96 Section I(3), Rules of the Local Mining Court 1868, Votes and Proceedings of the Queensland Parliament (1868), p. 631. 97 For reasons of size, figure 4.7 can be found at the conclusion of the chapter at p. 147. 98 Ryan, “The law surrounding the 'Miner's Right': origin of the mining law of Queensland”, p. 114; Testimony of James Barlee, Royal Commissioner’s Report, p. 616; Testimony of Theodore Byre, Royal Commissioner’s Report, p. 616. 99 Birrell, Staking a Claim, p. 45. 100 Gympie Times, 6 May 1869. 101 Gympie Times, 21 August 1869. See also Gympie Times, 26 November 1868; Nashville Times, 16 September 1868 in relation to the influence that Horace Tozer, an influential lawyer, was alleged to have over the Local Court; Testimony of James E. Bonney, Royal Commissioner’s Report, p. 612. 102 Royal Commissioner’s Report, p. 575

126 than half of the members went to more than three quarters of the meetings. The disinterest of the

members of the Local Court reflected a wider feeling of apathy. In comparison to the 1868 election in

which thousands of miners cast their votes, an election was held in October 1870 for seven new

members of the Local Court in which only 30 miners were present to vote.103 By August 1871, there

were “as few as four or five” cases pending before the Local Court and none of them involved more

than eight pounds.104 By 1871, working miners such as George Cooper and Henry Joseph, advocated

the abolition of the judicial role of the Local Court and both Henry King, who served as Chairman of

the Local Court until 1870, and his successor, John O’Connell Bligh were in favour of the total

abolition of the Court.105

Figure 4.3: Attendance of Local Court members from inception until 12 November 1868

Name of member Judicial sittings (out of Legislative sittings (out Total (out of 41) 16) of 25) Chairman 16 20 37 Goodchap 13 24 37 Fisher 12 23 35 Browne 12 21 32 Harrison 11 21 32 McGhie 10 19 29 Mulligan 91322 Goodwin 91625 Lord 3811 Barbour 51722 Prince 358

Source: The Nashville Times 12 November 1868

A Royal Commission into the mining industry recommended in 1871 that uniform legislation apply in

all gold mining districts, advised against the declaration of further local courts. It recommended that

the method of making a claim be revised, suggested that a leasehold system was workable, but needed

to be properly administered to prevent abuses of the system. It also recognised the emerging

103 Gympie Times, 19 October 1870. 104 Gympie Times, 16 August 1871. 105 Testimony of George Cooper, Royal Commissioner’s Report, p. 611. See also ,Testimony of James Bonney, Royal Commissioner’s Report, p. 612; Testimony of Henry Joseph, Royal Commissioner’s Report, p. 614; Testimony of Thomas Cockburn, Royal Commissioner’s Report, p. 615; Testimony of Robert Kift, Royal Commissioner’s Report, p. 617; Testimony of John O’Connell Bligh, Royal Commissioner’s Report, p. 607; Testimony of H E King, Royal Commissioner’s Report, p. 604.

127 commercial reality and suggested that co-operative mining be encouraged.106 An unsuccessful attempt was made to pass new mining legislation in 1872, but it was not until 1874 that Queensland received an amended mining law (and the first drafted specifically for Queensland).107

A Mining Law for Queensland

The Gold Fields Act 1874 (Qld)108 created a gold fields administration that was more attractive to industry. In the 1871 Royal Commission, Ratcliffe Pring QC, former Attorney-General of the Colony and the first barrister admitted in Queensland, reported extensively on “the disadvantage of the absence of capital.”109 Pring noted that the practice of rushing to new gold fields was one that “does not warrant encouragement by legislation.”110 Legislation should be adopted, he argued, that was

“directed towards inducing those who may be attracted to the field to remain upon it.”111 Although the new legislation reflected a drift away from the interests of the small miners by making mining titles more secure, it still recognised the importance that all claims be worked to the maximum extent possible. Although the Act relied on overworked administrators for its effectiveness, its processes were better suited to the limits of colonial bureaucracy. In contrast to the previous legislation, which was based on the fallacy that the Gold Commissioners could effectively regulate the gold mining industry, the new legislation recognised that the market itself was best placed to regulate the industry.

The gold field administrators performed a supervisory role, intruding only in difficult cases. Thus, when the new legislation came into force on 1 October 1874, it was considered to be a “great improvement upon the present Act” and was “hailed with general satisfaction by the gold mining community”.112

Although the new legislation was an improvement on the previous mining law, it was not without its flaws. The legislation remained open to manipulation and failed to anticipate new problems on the

106 Royal Commissioner’s Report, p. 569. 107 Ryan, ”The law surrounding the 'Miner's Right': origin of the mining law of Queensland”, p. 114. 108 Act for the Management of Gold Fields 1874 (Qld) 38 Vic No. 11. 109 Royal Commissioner’s Report, p. 577. 110 Royal Commissioner’s Report, p. 581. 111 Royal Commissioner’s Report, p. 581. 112 Gympie Times, 9 May 1874.

128 gold field, such as those caused by the presence and removal of water in mine shafts. Royal

Commissioner Pring had argued in 1871 that “uniformity in the law is unquestionably a desideratum to the miner.”113 However, any uniformity was limited to the text of the legislation and not its application. Interpretation continued to take place at the local level and miners complained of the

“discretionary power” in administrators to “twist or misconstrue” the meaning of the law.114 Gaps in both procedure and substantive law were supplemented by informal customs or rules developed and applied locally by administrators. Further, any success of the new administrative arrangements was at least partly due to the more settled nature of the gold field. In 1868, the Gold Commissioner issued

8,287 miners rights in Gympie. In 1874, only 924 were issued, and this number remained reasonably constant for the remainder of the decade (Figure 4.2).

The significance of the Gold Fields Act 1874 was in its subtle changes to the administrative structure of the gold fields and the reintroduction of the leasing system to Gympie. However, for miners at

Gympie, two changes were more immediately apparent (but had little practical impact). The first was the abolition of the position of Gold Commissioner, and its replacement with the office of Mining

Warden. The Mining Warden was simply the Gold Commissioner in different clothes – or more correctly, the same clothes. Gold Commissioner John O’Connell Bligh continued to hold the highest office on the gold field. His responsibilities remained very similar. Like the Commissioner, the

Warden presided over the Warden’s Court, which had jurisdiction to hear and determine all disputes and claims that arose in relation to mining. Bligh continued to have jurisdiction to “hear and determine all cases of complaint of breach of any of the regulations.”115 The second significant change was the abolition of Gympie’s Local Court and the repeal of the Local Court Regulations. Like the abolition of the position of Gold Commissioner, this had little practical effect. The Local Court

Regulations continued to apply to claims that were made prior to 1874 and, as discussed previously, the Local Court in its judicial capacity had fallen into disuse by 1874.

113 Royal Commissioner’s Report, p. 575. 114 Gympie Times, 23 January 1875. 115 Section 31, Gold Fields Act of 1874 (Qld).

129 The ongoing debate in relation to colonial mining laws concerned the appropriate size of mining claims. The Gold Fields Act 1874 (Qld) encouraged investment in the industry by defining claim types more simply, and increasing the amount of land that miners could claim. As Pring noted in

1871, permanent industry would be encouraged “by making the mining areas large enough to encourage co-operative parties to undertake permanent works.”116 Thus, where the rules of the

Gympie Local Court distinguished between 7 different types of mining claim, the new regulations provided for just four: river; alluvial; puddling; and quartz claims, as well as providing for mining leases. In particular, frontage claims (alluvial claims that were not in a riverbed) were abolished, which the Royal Commission found was a type of claim likely to create disputes and resulted in “a large amount of expensive and vexatious litigation; and much ill-will, jealousy and dissatisfaction”.117

The size of claims that could be granted to miners was also enlarged by over 50 per cent in some cases. In 1870 a miner could hold a dry alluvial claim of 160 square feet, but in 1874 he could hold

250 square feet. Similarly, the size of an ordinary quartz claim was increased from 12,000 square feet to 20,000 square feet (Figure 4.8).118

It was one thing to increase the size of claims to promote investment, but miners needed time to obtain that capital. As discussed previously, it was customary for the Gold Commissioner to grant protection of a claim to allow miners time to raise money. The new regulations elevated this custom into the formal law and granted the Warden wider powers to exempt claims from work. In relation to mining claims, the Warden could grant protection for 30 days if, in his opinion, the person claiming exemption was unable to work the claim as a result of sickness, attendance at court, the absence or failure of machinery, or the absence or abundance of water.119 The Warden’s powers were even broader in relation to leases. He could exempt a gold lease from work for a month “on good cause being shown” (Figure 4.7).120 Applications for protection were common. On 2 May 1877, at a

116 Royal Commissioner’s Report, p. 581; See also Testimony of Charles James Clarke, Royal Commissioner’s Report, p. 608; Testimony of Robert Critchley, Royal Commissioner’s Report, p. 609. 117 Royal Commissioner’s Report, p. 580. 118 For reasons of size, figure 4.8 can be found at the conclusion of the chapter at p. 148. 119 Reg 11, Gold Fields Regulations 1875 (Qld), Votes and Proceedings of the Queensland Parliament (1875), p. 443. 120 Reg 86, Gold Fields Regulations 1875 (Qld). For reasons of size, figure 4.7 can be found at the conclusion of the chapter at p. 147.

130 meeting of the members of the Perseverance Leasehold Company, the members resolved to apply for protection registration for three months for the purpose of obtaining steam machinery. Similarly, on

14 February 1877 the 2 and 3 South Monkland Company applied for six months protection registration as all their available capital had been called up, and some time was required to determine the future manner of working the claim.121

Notwithstanding the large number of applications, very few actually went before the Warden for his decision. Mere application was usually enough to obtain protection. This is because the Warden only heard cases in which some other party objected to the granting of protection. Warden Bligh supervised the industry and delegated to the market the more substantive control over whether protection should be granted. The practical effect was that mining companies were usually granted protection, regardless of whether or not they were legally entitled to it. When no objections were lodged, this improper application of the law took effect as a local custom, which was considered by other companies in Gympie to be tantamount to law. Any failure to follow one of these customs resulted in a chain of indignant correspondence in the Gympie Times. Companies saw protection as a right rather than a privilege. On 1 August 1877, the Gympie Times noted, for example, that the owners of the South Monkland claim were “entitled” to apply for protection registration in order to gain a few months “breathing time”.122

More than the size of claims, the colonial government recognised that security of title to gold mining claims was required to attract capital. As James Barlee observed in 1871, “the practice of jumping ground, which may have been unworked for two or three consecutive days, acts as a strong deterrent to the investment of capital.”123 Pring noted that “interests in mining properties, some of them of very great value, are liable to absolute forfeiture on several and very insufficient grounds.” He concluded that “there is no question that the feeling of insecurity generated by the existence of these provisions, has militated greatly against the investment of capital in mining.”124 Even the editor of the Gympie

121 Gympie Times 1 August 1877; 2 May 1877; 14 February 1877. 122 Gympie Times, 1 August 1877. 123 Testimony of James Barlee, Royal Commissioner’s Report, p. 615. 124 Royal Commissioner’s Report, p. 582.

131 Times, who had previously opposed any attempts to “tie up” the gold bearing ground in Gympie, remarked that “nothing can be more depressing to mining enterprise than insecurity of title arising from doubt as to how the law will be administered.”125 Although legislators were concerned about claim jumping, the policy that an unoccupied claim could be worked by another miner remained central to the new legislation. Claim jumping was an evil, but “an absolutely secure title” was considered to be “productive of results even more pernicious than those it is desirable to remove.”126

The Gold Fields Act 1874 (Qld) resolved the tension between these two considerations by making the jumping of claims subject to an administrative process. If a miner wanted to jump an abandoned claim, he had to first ask the Warden to “inquire into the matter”. If the miner simply entered the ground and began to work it without notifying the Warden, he would lose any right to which he may have been entitled.127 Similarly, if a miner wished to take possession of an abandoned share in an occupied claim, he was required to post a notice on the shaft of the claim. If no objection was lodged within 7 days, the miner was allowed to take possession.128 Miners quickly adopted this new system and applications for shares of claims were reported in the Gympie Times regularly each week.129 By putting in place a more rigorous process, the new legislation reduced the administrative burden on the

Warden. In contrast to the vast number of applications, very few applications for abandoned shares were required to be determined by the Warden. Between 1876 and 1877 the Warden heard only 5 cases in relation to forfeiture, and there were few reports of cases in other years (Figure 4.4).130 It is likely that the requirement to advertise any application for an abandoned interest, coupled with the delay of 7 days, significantly reduced the number of unscrupulous claims of earlier years where the jumping party asserted its right to the claim simply by occupation. Bligh’s decisions, like those of

King, also reveal his preference for security of title. In a case relating to the forfeiture of the No. 4

125 Gympie Times, 2 October 1875. 126 Royal Commissioner’s Report, p. 582. 127 Section 6, Gold Fields Regulations 1875. 128 Section 7, Gold Fields Regulations 1875. 129 Gympie Times, 1 January 1875, abandoned interest in a quartz claim; Gympie Times, 12 January 1875, 1/24 share in No 4 and No 5 North Rise and Shine; Gympie Times, 3 April 1875, 3 abandoned shares; Gympie Times, 7 April 1875, 1 abandoned share; Gympie Times, 25 March 1876, ¼ share in No 1 North Claim Jones’ Reef; Gympie Times, 17 June 1876, 3 lots of abandoned shares; Gympie Times, 30 September 1876, 6/16 abandoned shares; Gympie Times, 14 February 1877, 5 lots of abandoned shares. 130 See Gympie Times 9 January 1875 for one such example.

132 South Monkland claim, the Warden noted that although the claim had been incorrectly marked out,

“he would not for the first neglect of compliance with this regulation consent to the forfeiture of any man’s claim”.131

Figure 4.4: Civil cases heard by the Warden’s Court - 24 April 1876 to 7 November 1877

Type of case Number of matters Calls due 17 Forfeiture 5 Partnership 4 Water 3 Trespass 3 Withdrawn 2 Occupation of crown lands 2 Miscellaneous 5 Total 41

Source: Mining Warden’s Notebook, 24 April 1876 – 7 November 877 (A/25409, Queensland State Archives, Brisbane)

The most important change from the perspective of industry was the resuscitation of the leasing system in Gympie after it had been discarded by the Local Court. This change was motivated specifically by a desire to encourage investment. Pring argued that the leasing system “combines the only existing form of tenure which the capitalist desirous of investing money on the gold fields is likely to accept as sufficiently secure.”132 The new regulations allowed a person to apply for a lease of land up to 25 acres for a term as long as 21 years. The rental was set at 1 pound per acre. In order to apply for a lease, the applicants were required to post a notice on the claim, register it at the

Warden’s office, advertise in the newspaper, and mark out the ground. Within three months, the land had to be surveyed by the mining surveyor. Each application had to set out the proposed machinery to be used, the method of working the claim, and the number of men that would be employed on the lease.133 Once surveyed, the Warden was required to “report on each application to the Government” and specify whether, in his opinion, “the lease should be granted or not.”134

131 Gympie Times, 2 October 1875. 132 Royal Commissioner’s Report, p. 576. 133 Rule 77, Gold Field Regulations 1875. 134 Rule 79, Gold Field Regulations 1875.

133 The colonial government believed that the criticisms of the previous leasing system were more a result of “abuses of the system than against the system itself” and recognised that the proper working of the leasing system would depend upon the “judgment and discretion” of the Wardens in reporting upon applications.135 In addition to his other duties, it was simply not possible for Warden Bligh to report in detail upon every application. Like in the area of forfeiture of claims, Bligh adopted a supervisory role by allowing the market to regulate the industry and intervened only in difficult cases.

Between April 1876 and November 1877, Bligh heard 35 applications for mining leases (Figures 4.5 and 4.6). In 25 of these cases, the Warden recorded no objections from other miners in relation to the proposed leases. In these cases, the Warden’s notebook records no further discussion of the application. It appears therefore that these leases were recommended with little, if any, consideration by the Warden. This practice became so common that parties came to expect it, elevating it to the level of custom, or informal law. An editorial in the Gympie Times noted that the custom was for the

Warden to “recommend the granting of leases against which no objection has been lodged”.136 The best evidence of this occurred in 1878 when Warden Bligh decided not to automatically forward and recommend a particular application to the Governor. This decision set off a flurry of indignant correspondence about the interference with the rights of miners.137 Nevertheless, this was a rare occurrence. Only when an objection was lodged did the Warden seriously consider the merits of the application. The Warden, in this sense, abdicated his discretionary role. He allowed the market to provide the necessary checks and balances. If no miners objected, then the Warden would not make further enquiries. Rather than attempting to control the industry, the Warden simply supervised the market and acted as an arbiter only in the difficult cases.

135 Royal Commissioner’s Report, p. 576. 136 Gympie Times, 12 January 1878. 137 See, for example, Gympie Times, 19 January 1878; 23 January 1878; 26 January 1878; 30 January 1878.

134 Figure 4.5: Cases heard by the Warden’s Court - 24 April 1876 to 7 November 1877

Type of matter Number of matters Mining lease applications 35 Other applications and variations 5 Civil cases (See Figure 4.4) 41

Source: Mining Warden’s Notebook, 24 April 1876 – 7 November 1877 (A/25409, Queensland State Archives, Brisbane)

Figure 4.6: Comparison of mining lease applications heard by the Warden’s Court - 24 April 1876 to 7 November 1877

Mining Lease Applications 35 Objections 10 Result Approvals 26 Rejections (including withdrawals) 4 Record missing or illegible 5

Source: Mining Warden’s Notebook, 24 April 1876 – 7 November 877 (A/25409, Queensland State Archives, Brisbane)

To promote activity on the gold field (the failure to do this being one of the main criticisms of the leasing system) the regulations provided that once a lease was applied for, it had to be worked by the applicants. If no objections to the lease were lodged, the lease was required to be worked half-handed until the lease was granted by the Governor. Once granted, it had to be worked according to the conditions of the lease. For example, on 1 January 1875 it was reported that Messrs Stuart and Tozer received a lease of 53 and one half yards along the line of the Monkland reef for 5 years on the condition that three men worked the lease continuously. Messrs Harris, Critchley, McGhie and

Pollock received 2 acres on the Monkland reef on the same terms.138 To alleviate fears that the granting of leases would tie up valuable land and leave it unworked, this was one area that was strictly regulated by the Warden. It was not uncommon for the Warden to enter into possession of a lease on the basis of non-fulfilment of conditions.139

138 Gympie Times, 1 January 1875. 139 Auriferous lease No 119, Dawn Reef, Gympie Times, 3 April 1875; Lease no 183, Junction Gold Mining Company, Gympie Times, 7 April 1875; Gympie Times, 7 July 1875.; See also examples of Warden taking possession of leasehold land in Gympie Times, 10 April 1875.

135 Notwithstanding better administration, the Warden could not always prevent abuses of the system.

Although the leasing legislation was designed to promote productivity and encourage investment, this purpose was somewhat thwarted by miners who were able to take advantage of the system to advance their own interests, which were often contrary to the interests of the gold field. Miners still continued to complain that leases were “held upwards of a year without a man to represent it”.140 Miners waited for gold to be found on or near their land before they expended capital to work their claim.141 This was possible through a loophole in the regulations that did not allow any work to be done if an objection to the granting of the lease had been lodged. Indeed, in October 1875 the Warden granted an injunction to restrain an applicant for a lease from working the ground for such a time until the government determined the application.142 It was alleged that some miners took advantage of this process and arranged for an objection to be lodged against their lease in order to prolong the application process. The hope was that some gold would be discovered near their lease. Once gold was discovered, the objection would be removed. For this reason, it was alleged that the

“administration of the leasing regulations” had the function of locking up “the golden country, which should be giving employment to hundreds of miners and adding to the wealth of the community”.143

The criticism was that leases “will not be worked until compelled” and the owners “have not the remotest inclination to work until the labour of others has proved most unmistakably the value of their respective holdings”.144

An analysis of the text of the mining legislation reveals only half the story of mining in Gympie. As has been discussed, miners still found ways to manipulate the law to benefit their interests at the expense of the wider gold field. At the same time, however, miners adopted customs that were mutually beneficial and operated outside the formal law. This is best demonstrated by the problem of water. As mining shafts reached deeper into the earth they became progressively wetter, particularly during the rainy season. Miners had to continually empty water from their mine (known as ‘baling’)

140 Gympie Times, 24 April 1875. 141 Gympie Times, 24 April 1875. 142 Gympie Times, 20 October 1875. 143 Gympie Times, 16 January 1875. 144 Gympie Times, 16 January 1875.

136 in order to continue digging for gold. The problem of excess water was widespread. 145 At certain times, over half the “claims on the field [were] suffering more or less from water”.146 Almost every mining summary published in the Gympie Times referred to this problem.147 In some areas, claims were particularly close to each other. Some claims were physically linked and others were separated only by wood. This meant that water from one claim could drain into a neighbouring claim. This did not become a problem if all parties on the field were diligent in baling water from their respective claims, but this was not always the case.148 A typical example was in the claims of the South Lady

Mary in 1876. The shareholders of the No 4 South Lady Mary claim carried on work baling water and mining under “extremely unfavourable conditions”. In mid-March, the shareholders were baling

13 hours a day. The editorial suggested that unless baling commenced by the Caledonian Company on the neighbouring claim, the shareholders of the No 5 South Lady Mary claim would be forced to stop work for a period of 6 months.149

Commissioner King considered the baling of water to be “a very difficult subject to deal with”. His suggested solution was to employ an officer to ascertain the water level in the different reefs and claims and levy a rate on all claims proportionate to the baling work that they had done.150 Such a level of administration, however, was beyond the colonial bureaucracy. The editor of the Gympie

Times referred to another, widely adopted, solution. In the example above, the editor suggested that the shareholders of the No 4 and No 5 South Lady Mary claims “take joint action in the matter”.151

The prevalence of informal joint action meant that by the middle of the 1870s, notwithstanding the widespread problems with water, very few cases came before the Warden. Between 1876 and 1877, the Warden decided only 3 cases of this type (Figure 4.4). The few cases heard by the Warden provide a clue as to why miners were so willing to work together rather than to resort to the formal

145 It was not uncommon for mining companies to receive protection registration on account of water. See, for example, the No 6 North Glenmire Claim, that obtained protection registration for 14 days. See also Gympie Times, 22 March 1876, where the shareholders of No 2 and No 3 South Louisa applied for three months’ protection registration on account of water. 146 Gympie Times, 17 June 1876. 147 See, for example, Gympie Times, 22 June 1876; 12 September 1876. 148 See the application for protection registration of No 2 and No 3 South Louisa, Gympie Times, 22 March 1876. 149 Gympie Times, 22 March 1876. 150 Testimony of H E King, Royal Commissioner’s Report, p. 604. 151 Gympie Times, 18 March 1876.

137 law to resolve their dispute. It was rarely the case that one mine would drain into the next, without the reverse also being true. In the case of Robert Dillon and others v the Holders of No 2 North

Glenmire Mine it became apparent during the course of argument that each side was troubled by water from the other. James Henwicks for the plaintiff gave evidence that the water “overflowed into us at the 160 or 170 feet level from Defendants [sic] workings”. Another miner, Maher, also for the plaintiff, recalled that “the water in that claim [No. 2 North Glenmire] has been allowed to rise so high as to flow over into our claim”. On the other hand, Thomas Sawyer, for the defendant, testified that “the water came from No. 1 from the 75 feet level ever since I have been in the claim until now”.

Similarly, John Burt stated that “the water came from about 75 feet level in No. 2 Glenmire. I don’t know where the water came from. I made a verbal complaint to W. Henricks that I thought the water was coming from their Northern shaft.”152 Similar claims were made in other baling cases.153

If all miners on a claim or series of claims were equally troubled by water, it was in their interests to make sure that their neighbours also baled water. This was done through informal arrangements. In the case mentioned above, for example, the plaintiffs arranged to lend their horse to the defendants to allow them to bale more efficiently. As Henry Hoseph noted in 1871, “a miner who is directly benefitted by his neighbour’s baling, should contribute fairly towards such benefit”.154 It was customary to bale one’s own mine, even when it was not being worked so that the neighbours would not be troubled by water. On 17 February 1877, for example, the Gympie Times reported that at the

No. 3 and 4 South Lady Mary, “baling by two shifts is being carried on in order to prevent the water from this mine interfering with the working of No. 2 North.”155 When this custom was not adhered to, miners would complain “very bitterly of the claims either side not baling”. Indeed, in that same editorial it was suggested that “we think it would be in the advantage of the adjoining claims to assist the plucky shareholders of No. 1 in keeping down the water”.156 In this sense, behaviour was

152 Mining Warden’s Notebook, 24 April 1876-7 November 1877, Case No. 7 of 1876 (A/25409, Queensland State Archives, Brisbane). 153 See Mining Warden’s Notebook, Case No. 15 of 1876 and No 24 of 1876. 154 Testimony of Henry Joseph, Royal Commissioner’s Report, p. 614. 155 Gympie Times, 17 February 1877. 156 Gympie Times, 10 June 1876.

138 moulded not through formal legislation, but through customs that existed entirely outside the statute books. These informal laws developed because they promoted the common good and were supported by the majority of miners. Breaches of these rules were not prosecuted in the courts, but through social sanctions such as ridicule in the newspaper, or the response of a neighbouring miner who might refuse to bale their mine in retaliation. This is an example of Robert Ellickson’s theory of ‘order without law’ in action – behaviour was regulated by custom and enforced by informal social sanctions rather than regulated by formal law and enforced in the courts.

Nevertheless, much of the mining law in Gympie is an example in the Australian colonies that reflects

William Novak’s argument in relation to American law that public regulation was the defining feature of nineteenth-century law. The Queensland colonial government attempted to define the field of mining law and mould the shape of the industry through legislation. Yet this case also lends weight to criticisms of Novak’s work on the basis that it does not deal adequately with the issue of enforcement.

In Gympie, the Queensland colonial bureaucracy did not have the resources to effectively enforce its regulations. A focus on enforcement thus reveals a more complex picture of mining law.

Increasingly through the 1870s, miners themselves were responsible for the enforcement of the mining law. The inevitable result was that the practical operation of the law tended to favour the economic needs of the market.

Queensland’s mining law provided for both quartz mining and placer mining. In relation to quartz mining, the governing principle was to maximise productivity by ensuring that the greatest number of miners could access the field, and that the greatest number of claims were continually worked. This purpose is one that Hurst and historians writing in his tradition would readily recognise. In relation to quartz mining, which increasingly dominated the industry in Gympie, the guiding hand of the larger companies was visible. The Report of the Royal Commission reveals an explicit bias in favour of encouraging capital. Commissioner Pring explained that “[p]arties of associated miners combining their funds for their mutual benefit, would be in a better position to undertake improved methods of mining, to make use of more perfect and economical appliances for the extraction of the gold, and to

139 mine the ground to the best advantage”.157 To do this, he suggested making the mining areas both secure enough and large enough “to encourage co-operative parties to undertaken permanent works”.158 The testimony of Henry King before the Royal Commission reveals that this preference may have even been a conscious choice in favour of the interests of capital. This type of class bias would fit well within the work of Morton Horwitz. Less explicit, however, was the discretion exercised by the Commissioner and the Mining Warden. Where possible, the gold field administrators also tended to favour the interests of the entrepreneurial class over the interests of the small working miners in matters dealing with the security of title, protection of claims, and compliance with technical regulations.

A mining law for white men

Gympie’s mining law promoted productivity, but did so only to the extent that white males saw the benefit of any productivity gains. While not formally excluded, women played only a small role in the industry, and the Chinese were actively discouraged. Indigenous inhabitants only appeared at the margins of the mining story. The 1871 census revealed that of the 6,139 people actively involved in gold mining in Queensland, only 3 were women.159 No women were reported to be in the business of gold mining at Gympie. Things had not improved by 1876 when 4 women in Queensland were identified as being in the business of gold mining.160 In stark contrast to the presence of women, there were a significant number of non-white miners, mostly Chinese, on the Gympie gold field. From the time of Gympie’s birth as a gold field, Chinese miners were attracted to the region.161 By 1869 it was estimated that 470 Chinese were engaged in mining at Gympie working placer deposits.162

The Chinese miners were discriminated against both formally and informally. This occurred in two main ways. Most obviously, the Chinese were separated from the rest of the population. Edward B.

157 Royal Commissioner’s Report, p. 577 158 Royal Commissioner’s Report, p. 581 159 Fourth Census of Queensland, 1871, Votes and Proceedings of the Queensland Parliament (1872), p. 261. 160 Fifth Census of Queensland, 1876, Votes and Proceedings of the Queensland Parliament (1877), p. 939. 161 Brisbane Courier, 25 July 1868. 162 See, for example, placer mining by Chinese at Conondale, Brisbane Courier, 6 November 1878; Rush of Chinese to “alluvial ground in dense scrub”, four miles west of Gympie, Brisbane Courier, 22 April 1869; discovery of alluvial gold in a creek running into the Mary River, Brisbane Courier, 13 November 1878.

140 Kennedy described miners’ frequent attempts to expel the Chinese from Gympie and in 1868, 600

Chinese were driven from the gold field. Chinese miners were dragged by their pigtails and chased

out of town.163 This was a common theme across the Australian colonies, most notably at Lambing

Flat near Young between 1860 and 1861. In Queensland, riots occurred on the Gilbert, Cape and

Crocodile fields.164 For the most part, however, it appears that Chinese miners in Gympie were

tolerated as long as they did not stray too far from their claims, which were separated from the rest of

the mining population. By the end of 1868, the Chinese in Gympie were “more numerous than ever”

but were confined to the business of placer mining.165

From the initial height of Chinese immigration to Gympie in its first years, the number of Chinese

miners on the gold field fell to a little over 100 for the decade of the 1870s. This is likely to be a

result of the working out of the alluvial deposits and population movement to other newly discovered

gold regions. Indeed, by 1875 a significant number of Chinese had begun to flock to the Palmer

goldfields. The 1876 census reported that there were over 6,000 Chinese there. Nevertheless, there

continued to be concern in Gympie over the level of Chinese immigration.

The Queensland legislature considered Chinese immigration to the gold fields to be a significant

problem. In April 1875, the Queensland government notified British officials in Hong Kong of its

intention to levy an additional fee on the Chinese at the goldfields.166 This feeling culminated in the

passage of the Goldfields Act Amendment Act 1876 (Qld). This legislation provided that “Asiatic or

African Aliens” were required to pay a heavier licence fee in order to mine for gold. The Governor,

163 Andrew Markus, Fear and hatred : purifying Australia and California, 1850-1901 (Sydney, NSW: Hale & Iremonger, 1979), p. 71. See also Kathryn Cronin, “The Chinese Influx into Queensland’s Goldfields” in Raymond Evans, Kay Saunders and Kathryn Cronin, Race Relations in Colonial Queensland (St Lucia: University of Queensland Press, 1993), p. 280. 164 Markus, Fear and hatred, p. 72. See also R B Walker “Another look at the Lambing Flat Riots, 1860-1861” Journal of the Royal Australian Historical Society 56(3) (September 1970); P A Selth, “The Burrayong Riots, 1860-1861: A Closer Look” Journal of the Royal Australian Historical Society 60(1) (1974); C N Connolly, “Miners Rights” in Ann Curthoys, Andrew Markus ed., Who are our enemies? Racism and the Australian Working Class (Sydney, NSW: Hale and Iremonger, 1978). 165 Holthouse, Gympie Gold, p. 107; See also Kennedy, The Black Police of Queensland, p. 56. 166 Myra Willard, History of the White Australia policy to 1920 (Melbourne: Melbourne University Press, 1967), p. 40. Philip Gavin Griffiths, The Making of White Australia: Ruling Class Agendas, 1876-1888, PhD Thesis, Australian National Unversity (December 2006), p. 112; Andrew Markus, “Government Control of Chinese Migration” in Henry Chan, Ann Curthoys, Nora Chiand, ed. The Overseas Chinese in Australasia: History, Settlement and Interactions (Taipei: Interdisciplinary Group for Australian Studies, 2001).

141 William Cairns, did not assent to the legislation, opting instead to seek advice from Britain.167 Henry

Herbert, 4th Earl of Carnarvon (Lord Carnarvon) and Secretary of State for the Colonies, advised that the Bill would not receive the Royal Assent in its “present shape”.168 The proposed legislation was amended in 1877 and reintroduced to the legislature. This time, rather than again refer the legislation to England, the new Governor, Arthur Kennedy, assented to the law. It has been suggested that this amount to a tacit acceptance that disallowing the previous legislation had been a mistake.169

The Goldfields Amendment Act 1877 (Qld)170 required Chinese miners on the gold fields to pay 3 pounds to obtain a Miner’s Right (rather than the 10 shillings to other miners). The purpose of this legislation was to defray the “great expense ... incurred in maintaining order on gold fields in consequence of the presence of large numbers of Asiatic aliens” and sought to “discourage the immigration of such aliens and their employment in gold mining”.171 Further legislation was passed in July 1878 to exclude the Chinese from a gold field for the first 3 years of its existence.172 This move was surely supported in Gympie, evidenced by the fact that the previous month, the South

Gympie Progress Association had presented a petition to the Legislative Assembly requesting that the

Chinese be prevented from mining on the gold fields.173

The second way in which Chinese discrimination was entrenched in legislation was in the modification of the legislation to support the industry of quartz mining to the exclusion of placer mining. The Chinese were almost exclusively interested in placer mining. By legislation favouring security of title, the legislation indirectly harmed the Chinese.. This is even more apparent in the

1878 legislation to exclude the Chinese from a new goldfield for the first 3 years of its existence. The early years of a gold field invariably tended to be based on shallow placer mining. By excluding

167 Willard, History of the White Australia policy to 1920, p. 43. 168 Queensland Votes and Proceedings (1877), p. 290. 169 Griffiths, The Making of White Australia: Ruling Class Agendas, 1876-1888, p. 116. See also Willard, History of the White Australia policy to 1920, p. 50. 170 Goldfields Amendment Act 1877 (Qld) 41 Vic No. 12. 171 Goldfields Amendment Act of 1877 (Qld) as quoted in Michael Drew, “Queensland Mining Statutes 1859-1930” in K. H. Kennedy, Readings in North Queensland Mining History, Volume II (Townsville: James Cook University, 1982), p. 168. 172 Raymond Evans, A History of Queensland (Melbourne, Vic.: Cambridge University Press, 2007), p. 106. 173 Brisbane Courier, 5 June 1878. See generally, Griffiths, The Making of White Australia: Ruling Class Agendas, 1876- 1888.

142 Chinese miners from gold fields during this period, the legislation indirectly excluded Chinese miners from the industry. While the mining legislation was designed to extract the maximum value from the industry, this objective was postponed in order to cater to racial attitudes that were embedded in the formal and informal law.

Environmental exploitation

At separation in 1859, Queensland inherited the common law of water rights from the Colony of New

South Wales. This law, known as riparian law, provided that land owners who held land through which a stream or river flowed had a right to use that water as long as that use was reasonable and that use did not affect the rights of any other landowners contiguous to that water course. If a land owner wished to divert water for irrigation or other purposes, that was allowed as long as they did not alter the quality or quantity of water that was allowed to flow downstream.174 One of the most important cases affirming this principle was the New South Wales case of Pring v Marina,175 which was decided in 1866. The significance of this case was recognised by the Brisbane Courier in December of that year when it quoted the case and remarked that it was of “considerable importance”.176

The business of mining in Gympie relied on the availability of water, but the common law of water rights prevented significant use being made of water for the purposes of mining. In particular, it prevented the diversion of water for mining purposes (unless the water was returned to the stream) and it prohibited pollution of the water with tailings or other refuse, which was the inevitable result of miners using water to wash their dirt. Such a rule would have had the effect of slowing the development of the gold fields in the Australian colonies. As a result, legislation was enacted to allow water to be appropriated and diverted to the mines. From Gympie’s birth as a mining town, the mining legislation allowed miners to divert water for mining purposes with the permission of the

174 For a brief overview of riparian law in the Australian colonies see Edwyna Harris, “Dams and Disputes: Water institutions in colonial New South Wales, Australia 1850-1870” Discussion Paper, No. 08/07, Department of Economics, Monash University (2007). 175 Pring v Marina 5 NSW (L.) 390 (1866). 176 Brisbane Courier, 11 December 1866.

143 Commissioner.177 The Gympie Local Court enacted similar rules, subject to the proviso that earlier rights had preference over later rights. The later miners could not be supplied with water unless the miners holding prior rights had received their full quantity of water.178 Notwithstanding this legislation, which was likely a product of Victorian experience, there is no evidence of widespread diversion of water at Gympie, at least before 1871.179

The amendments to the common law by the mining legislation may have permitted miners to divert water, but it did not permit miners to alter the quality of water. However, it is apparent that a large amount of waste was dumped into the rivers and streams to be washed away. This occurred from the time that gold was first discovered. A Gympie correspondent in 1877 argued that there was significant value in prospecting the bed of the Mary River partly because tailings had been washed into the river for so many years.180 The environmental impact of this was noted in 1878 when it was observed that “there is a large amount of drainage which empties itself into the Mary River, including

... from many of our mines” and concluded that “the water in the bed of the river below the junction of the Deep Creek must become to some extent contaminated.”181

The washing of refuse into streams artificially modified the watercourse. This led, in part, to serious floods during the 1870s. First in March 1870, and again in 1875, shafts and tunnels were filled with water, the town was inundated, and insecure buildings were carried away.182 When miners explored the old workings of the Never Mind Reef in 1878, they found that it had been “choked up to a great extent with mullock and sludge – sediment of the floods which have oftimes covered this part of the field”.183 It was not just Gympie that was a victim of its sludge. The tailings periodically “covered farmland downstream with a mantle of sand without intervention”.184 In a result that was reminiscent

177 Sections 26-28, Gold Fields Regulation 1866 (Qld). 178 Section VIII, Local Court Rules 1868. 179 Royal Commissioner’s Report, pp. 578-579. 180 Brisbane Courier, 3 February 1877. 181 Brisbane Courier, 30 November 1878. 182 J M Powell, Plains of Promise, Rivers of Destiny: Water Management and the Development of Queensland, 1824-1990 (Brisbane, Qld: Boolarong Publications, 1991), p. 53. 183 Brisbane Courier, 6 July 1878. 184 Jan Wegner, “Sludge on Tap: Queensland’s First Water Pollution Legislation” Environment and History, 15(2) (May 2009), 199-216 (p. 201).

144 of the Nevada County experience, the common law of water rights in Queensland was conveniently forgotten when it came to the exploitation of the gold field, resulting in the deposition of sand and silt downstream.

Deposition of tailings was not the only environmental consequence of gold mining in Gympie. The environmental story in the gold mining regions in all the nineteenth century Australian colonies began with a “standard terrorism of devastation” as the “first rushes ransacked the alluvial deposits and brought ecological catastrophe to interlocked systems of rivers and creeks”.185 Gold mining in

Gympie was, to use the phrase of J. M. Powell, a sort of “robber economy” where the land was ransacked and hills were stripped bare of trees.186 Perhaps most significant was the contamination of the land with chemicals that were by-products of mining. It is estimated that during the 60 years of mining at Gympie, 1,902 tons of mercury were released into the environment. A study in 2003 revealed that mercury levels were “extremely high” around sites of mining activity in Gympie and that soils in the area were “found to be contaminated with mercury even after 75 years since the use of mercury in the area ceased”.187 Mercury was also found to have been washed into the Mary River and the researchers speculated that, even three quarters of a century later, it was likely to be accumulating in the river’s fish. It was not until 1948 that the mining law was finally amended to discourage the washing of sludge into water courses. However even then, the enforcement of the legislation did not always achieve its intended purpose.188

The pattern of tensions in the mining law

Mining law in the Gympie region was prescribed by the Queensland colonial government, but operated in a context of bureaucratic inefficiency. This suggests a tension between the desire to regulate for mining, and the practical difficulties of nineteenth-century administration. The mining

185 Powell, Plains of Promise, Rivers of Destiny, pp. 52-53. See also Geoffrey Bolton, Spoils and Spoilers: A History of Australians Shaping their Environment, 1st ed. 1981 (Sydney, NSW: Allen & Unwin: Sydney, 1992), pp. 67-69. On the problems in the southern gold fields, see J. M. Powell, Environmental Management in Australia (Melbourne, Vic.: Oxford University Press, 1976), pp. 37-38. 186 Powell, Plains of Promise, Rivers of Destiny, p. 53. 187 H. S. Dhindsa, A. R. Battle and S. Prytz, “Environmental Emission of Mercury During Gold Mining by Amalgamation Process and its Impact on Soils of Gympie, Australia” Pure and Applied Geophysics 160 (2003) 145-160 (pp. 152-153). 188 Wegner, “Sludge on Tap: Queensland’s First Water Pollution Legislation”, p. 206.

145 law itself had as its goal the maximising of productivity. This was achieved by allowing miners equal access to placer mines. However, this concept of equal access should be understood as equal access for white men. In relation to quartz mining, the law was moulded, sometimes consciously, to benefit large mining companies and the entrepreneurial class. The law was central to industrial development.

At the same time, however, any productivity gains came at the expense of the environment.

Environmental degradation was simply not considered in the calculus of short term profit. The ravaged land, altered geography and contaminated soil bear the scars of the productivity of the 1870s.

146 Figure 4.7: Comparison of forfeiture provisions in Gold Mining Regulations

Regulations under Gold Fields Act (NSW) Local Court Rules (1868) Local Court Rules (1870) Regulations under Gold Fields Act (Qld) (1867) (1874) Prospecting All claims must be worked within 48 hours after Area must be worked continuously every Area must be worked continuously every Area must be worked continuously every claim having been marked out. ordinary working day within 48 hours after ordinary working day within 48 hours after ordinary working day within 24 hours after marking out. marking out. marking out, with the full number of miners whose names appear on the notice. Ordinary All claims must be worked within 48 hours after Must commence work within 48 hours after Must commence work within 48 hours after All claims must be worked within 24 hours after claims having been marked out. occupation of the claim. Must continuously occupation of the claim. Must continuously they have been marked off with the requisite work in a bona fide manner. work in a bona fide manner. number of men. Any claim remaining unworked for 3 days is liable to be forfeited. On frontage claims, in addition, every On frontage claims, in addition, every If a claim is unworked for 3 days it is liable for forfeiture. Quartz claims are to be worked by half the shareholder, or representative, must be present shareholder, or representative, must be present from 10am to 12pm daily. from 10am to 12pm daily. number of claimholders on every ordinary 6 hours bona fide work is considered sufficient, working day. Once payable gold is found, the On quartz claims, within 48 hours it must be On quartz claims, must be worked by at least 1 and 4 hours on a Saturday. full number of men will be employed within 6 worked by half the number of men. On payable man for every 80 feet. Once gold is truck, 1 days. gold being found, all men to be employed within man for every 40 feet within 6 days. 7 days. Liable to forfeiture if unworked for 2 days. Leases The number of men stated in the lease N/A N/A Where no objections have been lodged, the application must be kept employed. ground must be worked half handed. Once notification has been given that the application has been granted, the ground shall be worked full handed within 1 month. Minister may authorise the exemption from work for a period up to 6 months. Warden may grant an exemption from work for a period of 1 month. Hired labour N/A Claim is not forfeited by reason of a hired man Claim is not forfeited by reason of a hired man Claim is not to be forfeited through absence of absenting himself unless claim holder has absenting himself unless claim holder has hired workers, unless within 7 days after notice received 2 days’ notice from the other received 2 days’ notice from the other of the absence or neglect, the owner does not shareholders to replace the man. shareholders to replace the man. work the claim in accordance with the regulations. Exemptions Claim will not be forfeited if miner is unable to Claim will not be forfeited if absence is due to Claim will not be forfeited if absence is due to Claim will not be forfeited if absence is due to from working work through illness, attendance at court, or sickness, attendance at court, voting, or public sickness, attendance at court, voting, or public attendance at court, flood, rain, public holidays, some other urgent business. holiday. holiday. or holidays proclaimed by the Warden. Warden may issue a certificate of exemption (not exceeding 30 days) where he is satisfied that the person is incapacitated, or the breaking down or absence of machinery, or abundance of water, justifies such exemption.

147 Figure 4.8: Comparison of size of claims in Gold Mining Regulations

Regulations under Gold Fields Act (NSW) Local Court Rules (1868) Local Court Rules (1870) Regulations under Gold Fields Act (Qld) (1867) (1874) River 30ft frontage 40ft per man along river. May not exceed 240ft. 40ft per man along river. May not exceed 240ft. 50ft along creek or river 35ft per man along creek, with width of 20 feet 35ft per man along creek, with width of 20 feet either side. May not exceed 150ft. either side. May not exceed 150ft. Frontage For 4 men: 120ft long x 1200ft wide 40ft per man along lead x 1200 feet. May not 40ft per man along lead x 1200 feet. May not exceed 160ft along lead. exceed 160ft along lead. Once gold found, width reduced to 200ft Once gold found, width reduced to 160ft. Once gold found, width reduced to 160ft. Dry Alluvial For 1 man, 40ft x 40ft Ordinary claim Ordinary claim Ordinary claim For 2 men: 40ft x 80ft • For 1 man: 40ft x 40ft • For 1 man: 40ft x 40ft • For 1 man: 50ft x 50ft For 3 men: 40ft x 80ft • For 2 men: 57ft x 57ft • For 2 men: 57ft x 57ft • For 2 men: 100ft x 50ft For 4 men: 60ft x 80ft • For 3 men: 70ft x 70ft • For 3 men: 70ft x 70ft • For 3 men: 150ft x 50ft • For 4 men: 80ft x 80ft • For 4 men: 80ft x 80ft • For 4 men: 200ft x 50ft In old and abandoned ground: In old and abandoned ground: And so on for any number of men. • For 2 men: 90ft x 80ft • For 1 man: 57ft x 57ft Extended claim • For 3 men: 100ft x 100ft • For 2 men: 80ft x 80ft • Not to exceed 4 ordinary claims • For 4 men: 125ft x 125ft • For 3 men: 100ft x 100ft Extended claim • For 4 men: 125ft x 125ft • 4 acres in old and abandoned ground Extended claim • 4 acres in old and abandoned ground Wet Alluvial For 2 men: 50ft x 100ft Ordinary claim Ordinary claim Ordinary claim For 3 men: 75ft x 100ft • For 2 men: 70ft x 70ft • For 2 men: 70ft x 70ft • For 1 man: 50ft x 100ft For 4 men: 100ft x 100ft • For 3 men: 87ft x 87ft • For 3 men: 86ft x 86ft • For 2 men: 100ft x 100ft • For 4 men: 150ft x 150ft • For 4 men: 100ft x 100ft • For 3 men: 150ft x 100ft In old and abandoned ground: In old and abandoned ground: • For 4 men: 200ft x 100ft • For 2 men: 100ft x 100ft • For 2 men: 100ft x 100ft And so on for any number of men. • For 3 men: 120ft x 120ft • For 3 men: 125ft x 125ft Extended claim • For 4 men: 150ft x 150ft • For 4 men: 150ft x 150ft • Not to exceed 4 ordinary claims Extended claim Extended claim • 7 acres in old and abandoned ground • 10 acres in old and abandoned ground Puddling 210ft x 210ft 210ft x 210ft 100ft x 100ft Sluicing 300ft x 300ft 300ft x 300ft

148 Regulations under Gold Fields Act (NSW) Local Court Rules (1868) Local Court Rules (1870) Regulations under Gold Fields Act (Qld) (1867) (1874) Quartz Prospecting claims Prospecting claims Prospecting claims Ordinary claims • 2 miles from a reef: 400ft x 600ft • 1 – 5 miles: 320ft x 300ft • 100 yards to 1 mile: 340ft x 300ft • 50ft x 400ft • 2 - 5 miles from a reef: 600ft x 600ft • 5+ miles: 440ft x 300ft • 1 – 4 miles: 320ft x 300ft Extended claim • 5+ miles from a reef: 800ft x 600 ft Ordinary claim • 4+ miles: 400ft x 300ft • Not to exceed 4 ordinary claims Ordinary claim • 40ft x 300ft for each man. Ordinary claim • 400ft x 200ft • No claim to exceed 8 men’s ground (or • 40ft x 300ft for each man. 320ft along the reef) Extended claim • No claim to exceed 8 men’s ground (or 320ft along the reef) • Not to exceed 4 ordinary claims Leases Leases may not exceed: Leases may not exceed • 5 acres of alluvial land • 25 acres • 500 yards of a river bed • Term not to exceed 21 years • 400 yards on the line of a quartz vein • Rental at 1 pound per annum per acre Granted for 5 years at 5 pounds per acre or per 100 yards. Leases for a longer period (less than 21 years) granted at an annual rent.

149 CHAPTER 5

MINING LAW ACROSS THE PACIFIC

The mining laws of Nevada County and the Gympie region appear, at first glance, to share few similarities. In the absence of any state or federal legislation, Nevada County miners devised their own rules to regulate their industry. Gympie miners, on the other hand, first used a mining law inherited from New South Wales, and later a law drafted by the Queensland legislature. The

Queensland colonial government had representatives in Gympie who purported to administer the legislation, and these administrators granted to miners a right to mine their ground in return for the payment of a licence fee. Even the method by which mining claims could be held appeared, on the surface, to be significantly different in Nevada County compare with the Gympie Region. By the late

1870s, significant portions of Gympie’s mining region were held as leases, whereas in Nevada County there continued to be strong opposition to leasing.

An analysis of both the substance and the form of the laws that operated in Nevada County and the

Gympie region suggests a number of obvious, but superficial, differences. To concentrate on these, however, is to miss the forest for the trees. A broader consideration of the mining law on either side of the Pacific reveals a similar pattern of tensions that in combination gave the law its shape. In both regions, the object of the law was to maximise productivity. In placer mining regions, this was achieved by ensuring the maximum number of claims were active. In quartz mining regions, this was achieved by providing miners with a title that was secure enough to attract investment. In both regions, the benefit of productivity flowed to white males. Productivity gains were short term and relied on environmental exploitation. The laws may have been efficient, but were also prejudiced and exploitative.

There are four principal explanations for the similarities between the mining laws of Nevada County and the Gympie region: both regions were the product of a similar legal history with respect to mining; there was an exchange of law and custom between California and the Australian colonies; both regions were moulded by similar transnational forces, such as immigration and the ideology of

150 capitalism; and finally, the similar geographical and geological situation in each region allowed similar laws to develop. In this sense, while the legal history of Nevada County and the Gympie region can each be told as part of their respective national legal histories, the two regions also form part of a wider transnational legal history of mining.

Placer and Quartz Mining

Historians have long argued that the mining laws of both California and the Australian colonies were unique to each region. Charles Howard Shinn, in his romantic history of frontier government written in 1884, reflected that American miners created “local institutions in the highest sense their own” that presented “remarkable political and economic features”.1 This view has been largely unquestioned by later historians. Rodman Paul, writing in 1947, wrote about the “American pioneers’ instinct for spontaneous organization and self-government”2 and their “inbred ability for self-organization”.3

More recently, historians have explained that “Americans were able to organize quickly and effectively because they shared a public culture of meetings and respect for majority rule”4 and the

“importance of the American training in self-government”.5 Malcolm Rohrbough makes a similar point when he describes the development of mining law as an example of “American democracy”.6 It is implicit in the language of these historians that the local mining laws were distinctively American.

Australian historians have not been immune from this exceptionalist impulse. At least two commentators on Queensland’s mining law have stressed the ‘uniqueness’ of the miner’s right.7 This exceptionalist view of mining law in each region does not survive close analysis. Not only did the mining laws share a similar object and purpose, but at times public figures on either side of the Pacific

1 Shinn, Mining Camps: A Study in American Frontier Government, p. 3. 2 Paul, California Gold, p. 197. 3 Paul, California Gold, p. 200. 4 McDowell, “From Commons to Claims: Property Rights in the California Gold Rush”, p. 20. 5 McDowell, “From Commons to Claims: Property Rights in the California Gold Rush”, p. 21. See also Zerbe and Anderson, "Culture and Fairness in the Development of Institutions in the California Gold Fields". 6 Rohrbough, Days of gold, p. 12. 7 Ruth Kerr, “Mines Department and Mining Legislation to 1900” in Kay Cohen and Kenneth Wiltshire ed., People, Places and Policies: Aspects of Queensland Government Administration 1859-1920 (St Lucia: University of Queensland Press, 1995), p. 120; Ryan, “The Law Surrounding Miner’s Right”. One exception to this historiographical trend is the valuable comparison of the United States and Australian mining industries by A. C. Veatch of the United States Geological Survey. See A. C. Veatch, “Mining laws of Australia and New Zealand” United States Geological Survey Bulletin 505 (1911).

151 when discussing new policy directions, or the impact of mining laws on smaller miners, minority groups, and the environment, can scarcely be distinguished. Queensland’s mining law, in the words of Commissioner King, was designed to “prevent the monopoly of ground” and to promote efficiency by preventing miners from holding land “unworked”.8 These words were echoed by California’s

Governor Bigler in 1852, when he argued that the present system of mining law was the best defence against “the establishment of monopolies”.9

It is not difficult to compare the general object and purpose of the mining laws of each region. The multitude of different mining laws that operated from time to time in Nevada County and the Gympie region, however, make direct comparison between the text of the different laws more troublesome.

For the purposes of comparison, therefore, the placer mining code of the Chalk Bluff District and the

Nevada County quartz mining code are taken as being representative of the placer and quartz mining laws in Nevada County. For the Gympie region, the Gold Fields Act 1874 (Qld) is used as illustrative of the general trends in Queensland mining law.

In the early days of each gold field, mining required no significant capital and all that was required was simply hard work, a pan or a cradle. This was acknowledged by Arthur Clifford Veatch, who was commissioned in September 1907 by the US President Theodore Roosevelt, to visit Australia and

New Zealand and for the purpose of reviewing each country’s mining law, particularly in relation to leasing.10 Veatch noted that in the early days of the Australian gold fields, “persons without expensive equipment could recover the gold”. He suggested that “one person could often work to as much advantage by himself or with a few chosen mates as in conjunction with others”. He then referred to the American experience and concluded that “the first gold claims in the American fields were based on much the same idea”.11 For this reason, Veatch suggested, “[o]ne of the first recognized and fundamental principles of both the American and Australian mining laws was that no

8 Testimony of H E King, Royal Commissioner’s Report, p. 603. 9 Message of Governor Bigler, Journal of the Assembly (1852), p. 29. 10 Veatch, “Mining laws of Australia and New Zealand”, p. 15. 11 Veatch, “Mining laws of Australia and New Zealand”, p. 122.

152 claim could be held without development”.12 Thus, the placer mining laws that operated in Nevada

County and the Gympie region were primarily concerned with defining the size of claims, defining the work required to maintain a claim, limiting the number of claims that any miner could hold, allowing claims to be protected in the event of no work, and the administration of claims. If the imposition of a license fee on miners under the Queensland law is put to one side, the first placer mining laws in Queensland would have passed for a Nevada County mining code (albeit a sophisticated one). Consider the following aspects of the law:

 Size: The laws of the Chalk Bluff Mining District limited the size of claims to 60ft on

streams, 100ft in a ravine, and 50ft along a hill, running to the centre of the hill. The

Queensland mining law provided that claims were limited to 50ft along a river, and other

claims ranged from 50ft x 50ft to 200ft x 100ft, depending on the number of men working the

claim. The fact that the precise size of claims differed slightly between regions is not

significant. Within Nevada County itself, the size of claims varied from district to district.

What is important is that the law in both regions limited the amount of mining ground that a

miner could claim and did so in roughly the same amount. In this sense, the law of both

regions enshrined the principle that no miner could occupy more ground than he could work.

 Number of claims: The laws of the Chalk Bluff Mining District provided that every miner

could hold one ravine claim or stream claim, and one hill claim. The Queensland mining

legislation imposed no such restriction on the number of claims that could be held, but

required that each claim held by a miner be continuously worked. Work on one claim did not

qualify as work on any other claim. By ensuring that a miner could not lay claim to a large

area and work only a small portion of it, the Queensland legislation achieved the same

purpose as the Nevada County laws.

 Work required: The laws of the Chalk Bluff Mining District required work to be done every

20 days on river claims, and every 10 days on other claims. The Queensland legislation

12 Veatch, “Mining laws of Australia and New Zealand”, p. 97.

153 required work once every 3 days. Again, the difference in the number of days is less

significant than the fact that in both regions, a miner’s title to a placer mining claim was

dependent on it being worked. It was through the application of this principle that the

productivity of the gold field in each region was maximised.

 Exceptions to work: The laws of the Chalk Bluff Mining District provided that claims only

needed to be worked when in a ‘workable’ condition. In the same way, the Queensland law

provided that claims did not need to be worked if the miner was required at court, or if work

was not possible as a result of floods or rain.

The above comparison necessarily simplifies the variations between the laws in each region. What it highlights, however, is that in relation to broad principle, there was a close resemblance between the two regions. Productivity was maximised by allowing miners equal access to the field, making simple the process by which an area could be claimed, and linking the right to mine the land to a requirement that the area be continuously worked. The law operated in a Hurstian sense to release the economic energy of each goldfield.

The law in relation to quartz mining adopted a different approach. This was also recognised by

Veatch, who explained that in both Australia and the United Sates, “[r]ock or quartz mining ... was held to be an entirely different thing, since it involved the formation of companies with sufficient capital to purchase the necessary machinery for mining”.13 Thus, the quartz mining laws of each region sought to maximise productivity by providing miners with greater security of title. The

Nevada County Quartz Laws provided miners with title to a claim that, as a practical matter, almost amounted to ownership of the fee simple interest. As long as sufficient work had been done on the claim, the title of the miner was unimpeachable except by the federal government. Similarly, under

Queensland law, a lease could be granted to a miner for a period of up to 21 years. Although a different legal mechanism was used in each region, quartz miners on either side of the Pacific were provided with a sufficiently secure title to attract the capital that they required to develop their mines.

13 Veatch, “Mining laws of Australia and New Zealand”, p. 97.

154 On one hand, this also reflects the approach of historians like Hurst and Friedman. In this way, the law was framed by, and reflected the interests of, the entrepreneurial elite who sought to be involved in the business of quartz mining.

Administration of the mining laws

An apparent difference between the two regions was in the administration of their respective mining laws. In the absence of federal and state legislation, the miners in Nevada County were forced to develop their own laws. In contrast, from the time that gold was discovered in Gympie, miners had enjoyed the benefit of prescriptive colonial mining legislation. This appears to suggest a laissez-faire approach of government in the United States, and a deep commitment to regulation in Australia. This reality, however, was that the legal regime in each region was constrained by the political and geographic realities of life on the mining frontier. The remoteness of each mining region, combined with the reality that vast numbers of miners rushed into each region and constantly moving within each one, meant that at a practical level the administration of each gold field shared substantial similarities.

In the Gympie region, a Gold Commissioner or Mining Warden was responsible for all aspects of the administration of the mining law. Through its administrators, the Queensland colonial government attempted to directly manage the gold fields. In practice, however, the Gold Commissioner and

Mining Warden did not have the resources to properly oversee the gold field. Rather than an interventionist colonial bureaucracy, regulation was left to the market and to the miners themselves.

This became even more pronounced after 1874 when legislation was passed that better understood the limits of colonial bureaucracy, allowing the market itself to regulate the industry with the administrators performing a more supervisory role. This was in substance no different to the situation in Nevada County where the miners themselves enforced the laws of mining. This similarity is revealed most clearly in the practice of claim jumping that underpinned the regulation of the mines in both Queensland and Nevada County.

155 The mere fact that the Gold Commissioner and Mining Warden performed a supervisory role is not of itself a point of difference between the administration of the mines in Nevada County and the Gympie region. The Recorder in the mining districts of Nevada County recorded claims, numbered them, and registered any transfers of ownership. Although the Recorder did not usually decide disputes, miners sometimes sought the Recorder’s advice as to their resolution. This is very similar to the supervisory role that the Mining Warden took in recording and transferring claims. Further, it is not true to say that miners in Nevada County were entirely self governing. A focus on the local democracy of the gold mining districts misses the fact that if a miner was dissatisfied with the adjudication of his neighbouring miners, he could bring his case before a Township Justice of the Peace. In this sense, the role of the Gold Commissioner and Mining Warden in Gympie was a combination of the roles of

Justice of the Peace and District Recorder in Nevada County.

Sitting above the Queensland colonial administrators and the Californian Justices of the Peace and

Recorders was a substantially similar court system that allowed local legal identities to flourish. Just as Horace Tozer of Gympie built a flourishing legal practice on the back of mining disputes, lawyers in Nevada County like William Stewart found mining litigation to be “most lucrative”14 and judges like Addison Niles wrote that mining disputes formed “a large portion of the business”.15 While it is certainly true that aspects of the administration of mining law in Nevada County and Gympie were different, the practical administration of the respective districts reveals significant similarities, which should not be obscured by the structural differences in the administration of the two regions.

A shared legal heritage

Law is a product of its history. The shared legal past of California and Queensland accounts partially for some of the similarities between the mining laws in each region. Queensland’s mining law was contained in a body of legislation that was inherited from New South Wales and based on the model developed in Victoria. In contrast, the mining law in California was a product of the customs that emerged in each particular mining district. The law varied between districts and was a creature of the

14 William Stewart, Reminisces of Senator William M Stewart of Nevada, p. 128. 15 Letter of Addison Niles dated 22 July 1855, quoted in Comstock, Brides of the Gold Rush, p. 197.

156 collective will of the miners in each district. Nevertheless, the mining law on either side of the Pacific developed in the context of centuries of English law that reserved all ‘precious metals’ for the Crown.

As has been discussed previously, this rule was first developed in 1567 during the reign of Queen

Elizabeth I.16 The rule was justified on three grounds: that gold and silver were “the most excellent” things and should belong to the sovereign who “is in the eye of the law most excellent”; that silver and gold should vest in the sovereign for the maintenance of order; and that silver and gold were used for coinage and other purposes and therefore should vest in the Crown.17 This rule was clarified in the

Royal Mines Act 1688 (UK).18 Mines of tin, copper, iron and lead were deemed not to be royal mines

(even if traces of gold or silver could also be extracted from them), but the Crown retained title to the gold and silver mines and retained a further power to purchase the ore of tin, copper, iron and lead mines at a price set by legislation.19

The essential difficulty in applying the principle of crown minerals in the United States and the

Australian colonies was that it meant that any gold mine would either have to be operated by the sovereign government, or miners would have to obtain the permission of that government before mining the ground. The legacy of the English common law therefore meant that mining in each nation demanded some element of administration. In developing its own minerals policy in the shadow of the common law of royal metals, the American colonies and later the United States

Government oscillated between the granting of licenses, the leasing or sale of mineral land, and sheer avoidance of the problem. It was this avoidance that influenced the nature of Californian mining law.

In contrast, when gold was first discovered in the Australian colonies, the New South Wales and

Victorian colonial governments immediately asserted title to the gold and “by its grace” allowed miners to retain the gold that they found, subject to the payment of a licence fee.20 This principle was adopted into legislation, modified into the ‘miner’s right’ after dissatisfaction with the licensing

16 Case of Mines (1567) 1 Plowd 310; 75 ER 472. 17 Bainbridge, A practical treatise on the law of mines and minerals, p. 40. See generally Newton, “Native Title and the Royal Metals”; Williams, “Gold, The Case of Mines (1568) and the Waitangi Tribunal”. 18 An Act to prevent Disputes and Controversies concerning Royal Mines 1688 1 Will & Mar. c. 30. See also Bainbridge, A practical treatise on the law of mines and minerals, p. 44. 19 Bainbridge, A practical treatise on the law of mines and minerals, pp. 44-45. 20 Serle, The Golden Age, p. 19.

157 system erupted at Ballarat, and formed the basis of the Queensland mining law. Thus, the most obvious difference between Californian mining law and Queensland mining law was that in

California, the government refrained from making policy, while in Queensland the government permitted miners to work in the mines if they paid a fee. Both solutions, however, were direct outcomes of the problems associated with the English common law.

There are two reasons for the divergent response of the United States and the Australian colonies to the problems posed by the principle of royal metals. The most important reason was that the

Australian colonies in 1851 were much closer to English law than the United States was in 1848.

Only 23 years earlier, the New South Wales Act 1828 (UK) had been passed, which provided that “all laws and statutes in force within the Realm of England at the time of the passing of this Act ... shall be applied in the administration of justice in the courts of New South Wales and Van Diemen’s Land respectively, so far as the same can be applied within the said colonies”. The Attorney-General of

Victoria expressly acknowledged the importance of English law in the Report of the Commission

Appointed to Enquire into the Condition of the Gold Fields of Victoria, delivered in 1855, in which he cited the seminal English text by Bainbridge on the law of mines, and concluded that the common law of royal metals was the law in Victoria. For this reason, it is not surprising that legislation was enacted to specifically deal with the legal problem of royal metals. Victoria was the first colony to pass comprehensive mining legislation and in that colony, the legislative council was dominated by pastoral interests. It was determined that the cost of administering the new mining districts should be borne by the miners themselves and not by agricultural or pastoral interests.21 A system of licensing was an obvious solution because it provided an income for the colonial government, legalised the actions of those miners who had already begun work, and legitimised the future claims of the thousands more who were on their way to the mines.

The United States could afford to adopt a more laissez-faire approach to its mineral lands because it had a different relationship with the English common law. After independence, the majority of the new States adopted the English common law (including its statutes), but retained a discretion to alter

21 Birrell, Staking a Claim, p. 19; Serle, The Golden Age, p. 27.

158 the law.22 The Northwest Ordinance of 1787 similarly provided that English law would be adopted

“as may be necessary and best suited to the circumstances of the district”.23 Thus, whereas the

Australian colonies were bound by English law, the United States was merely guided by the principles

of English law. Related to this is the fact that the United States was at a different stage of national

development to the Australian colonies. Where Victoria and New South Wales in 1851, and later

Queensland in 1867, remained English colonies when gold was discovered, the United States was an

independent nation with a federal government. In the United States, minerals policy was a matter of

federal law and not state law.24 The federal policy was to draw a distinction between mineral and

non-mineral lands.25 In 1840 the United States Supreme Court observed that “it has been the policy of

the government at all times in disposing of the public lands to reserve the mines for the use of the

United States”.26 Thus, the legacy of royal metals in American law actually handcuffed the

Californian State Government. It could not pass legislation in the same way that the colonial

governments in Australia could. This is significant because historians have shown that government

regulation in the nineteenth century was more likely to come from State and local governments than

from the federal government.27

Exchange of mining laws

The shared common law heritage explains why it was necessary for a mining law to develop in both

Australia and the United States. The larger question is why the mining law of each region shared so

many broad similarities. As explained previously, the Californian placer mining laws were a logical

outcome of thousands of miners drafting codes to suit their collective interests. The Californian

experience had a significant influence on the first Australian mining laws. Arthur Veatch recognised

22 See, for example, 9 Laws of Virginia 127 (Hening 1821); New Jersey Constitution (1776), Article XXII. For a discussion of this phenomenon see Hall, “The Common Law: An Account of its Reception in the United States”, p. 799; Nelson, Americanization of the Common Law, p. 8-9; Friedman, A History of American Law, p. 67. 23 Francis N. Thorpe, American Charters Constitutions and Organic Laws, 1843 (Washington: Government Printing Office, 1909), p. 958; Hall, “The Common Law: An Account of its Reception in the United States”, p. 801. 24 See the cases of United States v Gratiot 39 U.S. 526 (1840) and United States v Gear 44 U.S. 120 (1845), which upheld the powers of Congress over federal land, referred to in Leshy, The Mining Law: A Study in Perpetual Motion, p. 9. 25 On the early land laws, see the concise review of the Supreme Court in United States v Sweet 245 U.S. 563 (1918). 26 United States v Gratiot 39 U.S. (14 Peters) 526 (1840) at 538. 27 Friedman, A History of American Law, p. 120; Novak, The People’s Welfare, p. 1; Novak, “The Myth of the ‘Weak’ American State” .

159 such similarities that he began his review of Australian mining law by noting the close links between

Australia and the United States, suggesting that “the opening of the Australian gold fields was due to the return of persons who had been attracted by the Californian rush, and their application to the

Australian fields of the knowledge gained in California”.28 According to the Victorian census of

1854, there were 1,500 Americans on the Victorian gold fields. During the 1850s, it was estimated that between 5,000 and 6,000 Americans migrated to Australia.29 One of these men was Charles

Ferguson, an American who had worked in Nevada County and was present at the Eureka rebellion.

In Ferguson’s memoirs, he referred frequently to the presence of American miners in Victoria and their integration into Victorian mining society.30 These statistics may under-represent the American influence because, as Geoffrey Serle notes, “among the ‘forty niners’ there had been many from the

British Isles who had now moved on to Australia”.31 The most obvious example of this was Edward

Hargraves, who travelled to California in 1849 before returning to the Australian colonies in 1851.32

Mining techniques from California were imported to Australia. In 1851, Hargraves explained to his fellow prospectors how to use the Californian cradle. Geoffrey Blainey argues that the Californians were “the innovators in Victorian mining”.33 Yet this influence went further than Victoria. A report from a New South Wales gold field in November 1853 described how “two American gentlemen” had commenced operations. It was noted that “[t]heir mode of working the bed claims is far superior to any yet attempted” and that “if they succeed other parties will no doubt work their claims on the same principle”.34

Given the early Californian influence, it is not surprising that the Californian legal experience also provided a model for Australian mining laws. The establishment of local mining boards in Victoria was recommended by the Victorian Royal Commission on the Goldfields in 1855. The report of the

28 Veatch, “Mining laws of Australia and New Zealand”, p. 91. 29 David Mosler and Robert Catley, America and Americans in Australia (Westport, CT: Greenwood Publishing Group, 1998), p. 12. 30 Ferguson, The Experiences of Forty-Niner During a Third of a Century in the Gold Fields. 31 Serle, The Golden Age, p. 76. 32 Blainey, The Rush that Never Ended, pp. 13-17; Mosler and Catley, America and Americans in Australia, p. 12. 33 Blainey, The Rush that Never Ended, p. 47. 34 Maitland Mercury and Hunter River General Advertiser, 12 November 1853, quoting the Bathurst Free Press.

160 Royal Commission did not disclose what influenced this recommendation, but the similarity between

local mining boards and the self governing districts of California was certainly recognised in Australia

from an early stage. One historian of mining law has written that Californian miners not only carried

with them their mining experience, but also an “acquaintance with the code of mining laws that had

been established by them”. Those laws “were adapted almost without change in the new Australian

community”.35 Simpson Davison, Hargraves’ companion in California, recounted in 1861 after the

establishment of the local courts in Victoria, that “the Californian custom has predominated over all

injudicious attempts of the Government and class legislatures to impose arbitrary and impracticable

regulations upon the gold mining community”.36 So influential was the Californian experience that

the New South Wales colonial government adopted a licensing system after being mistakenly advised

that a licensing system operated in California by 1851.37 The exchange of custom and law between

California and the Australian colonies meant that by 1855, Victorian miners were making their own laws in their own courts in a manner based on the Californian system.38 It was no coincidence,

therefore, that many of these laws took a similar general form.

The judicial power of the local Victorian mining boards was transferred to the Victorian Court of

Mines in 1857. This court’s influence extended beyond its geographical jurisdiction. Robert

Molesworth, the chief judge of that court, was regarded as having laid the foundation for Australia’s

mining law through his decisions. Samuel Griffith, the Chief Justice of the Supreme Court of

Queensland and later Chief Justice of the High Court of Australia, commented in 1897 that “[i]t is a

well-known fact that the mining law of Australia was practically made by the decisions of Mr Justice

Molesworth and the Supreme Court of Victoria”.39 It was this mining law, developed partly out of

Californian experience, that the Gympie region inherited.

Social and geological similarities

35 Theodore Francis Van Wagenen, International Mining Law (New York: McGraw–Hill, 1918), p. 115. See also Blainey, The Rush that Never Ended, p. 55. 36 Simpson Davison, The gold deposits in Australia : their discovery, development and geognosy, with a disquisition on the origin of gold in placer-deposits and in quartz-veinstones, (London: Longman, Green, Longman, and Roberts, 1861), p. 436. 37 Goodman, Gold Seeking, p. xvi. 38 Blainey, The Rush that Never Ended, p. 55. 39 Veatch, “Mining laws of Australia and New Zealand”, p. 97; Blainey, The Rush that Never Ended, p. 56.

161 Just as important as any inherited legal traditions are the social, economic and environmental factors that shape the law. Again, this was recognised by Arthur Veatch, who argued that both Australian and American mining law started “from the same point”, was “based on the same fundamental principles” and developed “along the same lines and under much the same conditions”.40 In both the

Gympie region and Nevada County, the rush of individual miners in the early years meant that the first laws were concerned with allowing working miners equal access to the gold fields. A petition of

Gympie miners addressed to the Minister of Land and Works in 1868 could just as easily have been written by Nevada County miners. It referred to the “industrious working miner” and the fact that it was of the “utmost importance that the poorest miner may have a chance of obtaining a living here”.41

Similarly, in debates in the California legislature, reference was continually made to the rights of the

“poor laboring man”42 and the “great mass of American citizens”.43 Praise was given to the “energies of the most enterprising and energetic class of men the world has ever seen”.44 In the context of these views, it is not surprising that when the Gympie local court first convened, it reflected the views of the working miners45 in much the same way as the placer mining codes in each Nevada County district were a product of its miners. This commitment to equality and democracy was also reflected in the process of lawmaking, which in both regions revealed a strong commitment to the rule of law.

Law in Nevada County may have been local and informal, but local miners’ meetings were committed to ensuring that the process was seen to be fair. This was not peculiarly American. When the Gympie miners convened their local court, the first order of business was to draft rules for proper conduct. In addition to rules governing due process and voting procedure, it included such items as “[e]very

40 Veatch, “Mining laws of Australia and New Zealand”, p. 93. Veatch went on to explain that “American law is essentially where it was over fifty years ago, while Australian laws have been progressively improved”. This alleged divergence, however, occurred after the period studied in this thesis. 41 Nashville Times, 30 May 1868. 42 Journal of the Assembly (1849-50), p. 807. 43 Journal of the Assembly (1849-50), p. 811. 44 Message of Governor Bigler, Journal of the Assembly (1852), p. 29. 45 Stoodley, “An Early Aspect of Queensland Mining Law: The Area of Gold Mining Leases”, p. 182.

162 member desiring to speak, shall rise in his place, uncovered, and address the Chairman”46 and “[n]o member shall use offensive or unbecoming language in reference to any member of the court”.47

The similar geology of each region meant that placer mining in the Gympie region and Nevada

County was quickly overshadowed by quartz mining. By 1871, most mining in Gympie was for quartz gold. Similarly, Nevada County saw a boom in quartz mining between 1851 and 1853. The capital requirements of this form of mining meant that miners in both regions encountered the same problems of attracting investment, and business leaders in both regions agitated for the reform of mining laws. In 1852, a Nevada County Committee was appointed to investigate the state of the law in relation to quartz mining. The Committee reported that “there is no tenure by which quartz leads and veins are held, sufficient to induce monied men to invest capital to any extent, for the purpose of working the numerous quartz veins which intersect our county”.48 These comments would not have been out of place in the Report of the Royal Commissioner, Ratcliffe Pring, delivered in 1871, in which he noted that “considerable dissatisfaction has been expressed with the imperfect state of the existing law in relation to the security of tenure of mining claims”49 and that the only solution that capitalists would accept as “sufficiently secure” was a system of leasing.50

The voice of capitalism was heard on both sides of the Pacific. The introduction of leasing in the

Australian colonies and the type of permanent ‘ownership’ granted under the Nevada County Quartz

Laws achieved a similar economic result for the entrepreneurial class of miners. This similarity may have surprised many 1850s Californian legislators, who felt strongly that any system of leasing in

California would tend to promote monopoly and lead to the creation of a class of wage-earning miners. And yet, this was exactly the effect of Nevada County’s mining laws. Indeed, Arthur Veatch went so far as to suggest that a system of leasing such as that which operated in Australia was more likely to protect against the evils of consolidation than the custom that grew up in regions like Nevada

46 Gympie Local Court Rules 1868, Rule 16. 47 Gympie Local Court Rules 1868, Rule 21. 48 Nevada Journal, 19 November 1852. 49 Royal Commissioner’s Report, p. 10. 50 Royal Commissioner’s Report, p. 576.

163 County.51 Veatch’s criticism of American mining law was that it was possible for an American miner

“to fully comply with the letter of the laws and yet hold a claim without real development”.52 Many of Gympie’s miners of the 1870s would have been surprised by this conclusion. As we have seen previously, there were a myriad of ways for a miner to avoid the requirement of continuous work on a leasehold claim and it was often noted by working miners that a system of leasehold had the effect of locking up valuable mining ground. In this sense, therefore, the practical effect of the law on either side of the Pacific, although different in form, achieved the same economic outcome.

The casualties of productivity

Despite superficial differences, the mining laws of Nevada County and the Gympie region not only had similar economic goals, but they also shared a darker side: discrimination on the basis of race; and the destruction of the environment. In both regions, the general principle that the mines should be free and open to all was subject to a corollary that this privilege should be limited to certain types of miners. The rhetoric of racism was similar. In Nevada County, it was thought that the wealth of the

Californian gold fields should be reserved for Americans. Foreigners who sought to mine gold and return to their homes should be excluded, or made to pay a fee for the privilege of working the mines.

As explained previously, California passed legislation between 1850 and 1856 that restricted access to the mines for foreigners. This legislation was supplemented by local mining laws that also sought to restrict foreign mining. In contrast, fear of Chinese miners was never as intense in Gympie as in

Nevada County, although there were examples where miners took the law into their own hands to expel the Chinese from their diggings. Nevertheless, Queensland law strongly resembled the

Californian legislation with its stated purpose to “discourage the immigration of such aliens and their employment in gold mining”.53

There were two main reasons for such similar nativist sentiment on either side of the Pacific. Both the

United States and the Australian colonies were destinations of significant Chinese immigration in the

51 Veatch, “Mining laws of Australia and New Zealand”, p. 113. 52 Veatch, “Mining laws of Australia and New Zealand”, p. 98. 53 Goldfields Amendment Act 1877 (Qld).

164 nineteenth century. Chinese immigration was a product of social and economic problems associated with the decline of the Ch’ing dynasty and the simultaneous discovery of gold around the Pacific.

Many of these Chinese immigrants did not wish to establish a new home abroad, but wished to earn enough to help their family and return to their home village to retire. More than any previous time, people of vastly different cultures were travelling the world, and cities were becoming increasingly multicultural.54

Not only were both regions subject to similar patterns of immigration, but Queensland immigration policy was also strongly influenced by the Californian experience. In 1874, for example,

Queenslanders could read the observations of the Brisbane Courier’s correspondent in California who wrote that there was the “usual excitement” in San Francisco in relation to the “emigration of Chinese to this country”.55 In 1878 it was reported from California that “a large Chinese population is also detrimental to the interests of Europeans, and the evil is likely to increase until some successful effort is made to prevent them from coming”.56 In an example of the reception in Queensland of ideas from

Nevada County itself, the Brisbane Courier reported in February that the miners at Gold Hill in

Nevada County had voted to “resist the introduction into the miners of Chinese coolies” who, it was argued, were “supplanting white men in every occupation”.57 In 1877, the Queensland Postmaster-

General, Charles Stuart Mein, brought to the attention of the Queensland Parliament a report commissioned by the United States government to enquire into the nature of Chinese immigration.

Mein concluded that “I have read the report ... as testimony of the result to a civilised community of the same race as ourselves, possessing similar institutions to our own, from the coming among them

54 Cathie May, “The Chinese in Cairns District, 1876-1920” in Henry Reynolds ed., Race Relations in North Queensland (Townsville: James Cook University, 1993), p. 258; Adam McKeown, “Transnational Chinese Families and Chinese Exclusion, 1875-1945” Journal of American Ethnic History 18(2) (1999) 73-110; Adam McKeown, “Conceptualizing Chinese Diasporas, 1842-1949” Journal of Asian Studies 58 (1999) 306-337; Adam McKeown, “Golbal Migration, 1846- 1940” Journal of World History 15 (2004) 155-189. See also Markus, Fear and hatred : purifying Australia and California for a comparison of Chinese immigration policies and racial prejudice on either side of the Pacific. 55 Brisbane Courier, 29 January 1874. 56 Brisbane Courier, 23 August 1878. 57 Brisbane Courier, 18 February 1878. See also Kathryn Cronin, “The Chinese influx into Queensland’s goldfields”, p. 260 where it is argued that Queenslanders were “influenced significantly” by anti-Chinese reports from California’s goldfields.

165 of a large Chinese population, and from the unrestricted invasion of the country by an inferior race”.58

While the Californian experience did not determine the course of action taken in Queensland, it strongly influenced the way Queensland legislators conceptualised and responded to the transnational forces of immigration that affected both regions.

Just as the mining law on both sides of the Pacific institutionalised racism, so too did it allow and encourage the destruction of the environment in each region. As discussed in previous chapters, the availability of water was essential to the business of gold mining. The Mary River and its tributaries fed the mines of Gympie, while in Nevada County, the South Fork of the Yuba River flows through the middle of the County, feeding smaller creeks and streams. Preventing miners in each region from harnessing the power of water was the English common law of water rights that provided that riparian owners (property owners adjacent to water) could not diminish the quantity or quality of the water to the detriment of those downstream.

Historians have stressed the difference between the law of water rights in California and in the

Australian colonies. Sandford Clark and Ian Renard, argue that “[e]ach country found a different solution, and an important distinction in their water-use laws resulted”.59 Sandford and Clark are correct that different mechanisms were adopted in California and the Australian colonies, but this ignores the fact that the law in each region achieved the same solution. To explain, the doctrine of prior appropriation was never elevated into the common law of Queensland, but the principles were enshrined in the mining laws of the region. Miners were allowed to turn a proportion of the water for the purposes of mining, and their right to the water was determined by the priority of their appropriation.

Notwithstanding this, it is clear that water law played a more significant role in the history of Nevada

County than it did in the Gympie region. This is not due to any different legal culture, but a result of

58 Willard, History of the White Australia policy to 1920, p. 42 quoting C. S. Mein, Queensland Parliamentary Debates (1877) Vol. XXII, p. 72. The report in question was the Report of the Special Joint Committee to Investigate Chinese Immigration, Report 869 (Washington: Government Printing Office, 1877). 59 Clark, Sandford D. and Renard, lan A., “The Riparian Doctrine and Australian Legislation”, Melbourne University Law Review 17(2) (1970), p. 480.

166 the different climate and geography in combination with the fact that hydraulic mining was largely absent from Gympie. In 1871, a correspondent of the Gympie Times noted that “improved systems of mining poor ground could be introduced” and expressed surprise that “many of the hydraulic miners of California or Victoria would consider many of the creeks around this district splendid paying ones”.60 A Gympie miner, while visiting California in February 1876, stated that “until arrival in this country, hydraulic mining was known to me by repute only” and “were such a force directed against the alluvial or gravel banks at Gympie (and they are much like those at Gold Run) there would be, I am disposed to believe, more washing done there in a month than has been done since Nash made his lucky find”.61

The absence of hydraulic mining may partly have been a result of lack of knowledge, but it may also have been because Gympie’s climate and geography simply could not support it. The Sacramento

Daily Union stated in July 1854 that hydraulic mining required a large volume of water and significant pressure.62 This explains why Nevada County was so well suited to this form of mining.

Nevada County’s rainfall was concentrated between the months of November to March. In contrast,

Gympie’s rainfall was more evenly distributed during the year. This meant that there was not the same volume of water coursing through its rivers and streams during certain months of the year

(Figure 5.1).

60 Brisbane Courier, 1 February 1871. 61 Brisbane Courier, 8 April 1876. That is not to say that all Gympie miners were unaware of hydraulic mining. In response to this letter, a correspondent noted that hydraulic mining had operated in New South Wales and Victoria for many years, Brisbane Courier, 1 July 1876. This is recognised by J. M. Powell who argues that that hydraulic mining was introduced into Victoria by Californian miners, Powell, Environmental Management in Australia, p. 38. 62 Sacramento Daily Union, 10 July 1854 referred to in Paul, California Gold, p. 155.

167 Figure 5.1: Comparison of of Monthly Rainfall (mm) in Gympie and Nevada City

Source: Australian Bureau of Meteorology (www.bom.gov.au) and National Climatic Data Centre (www.ncdc.noaa.gov) (accessed 26 June 2009)

In addition to the difference in rainfall between the regions, the different geography also played a role.

Nevada County is located in the foothills of the Sierra-Nevada mountain range. The two principal towns for gold mining, Grass Valley and Nevada City, are both over 700 metres above sea level.

Nevada County’s rivers and streams fall from the peaks in Nevada County over 3,000 metres above sea level. In contrast, Gympie is a mere 78 metres above sea level and, while mountainous, did not have the same combination of mountains and availability of water that ‘blessed’ Nevada County.

This meant that it was not possible to build up the same level of water pressure for use in Gympie’s mines.

Water law may have been comparatively less important in the Gympie region, but both regions were united in the fact that the environment was exploited to drive the productivity of each region.

Environmental concerns were placed second to economic efficiency. In both regions, the story of the waterways in the decades following the initial rush was one of rivers clogged by tailings, and farmland covered with discarded dirt. Although the prominence of hydraulic mining in California meant that the problem was more severe in California, this does not diminish the fact that Gympie miners altered the course of the Mary River, causing widespread flooding, and indiscriminately washed tailings into the river, harming the interests of agriculturalists downstream. Gympie miners

168 also contaminated the ground with by-products of the mining process, causing long-lasting ecological damage.

To summarise, although there were superficial differences between the mining laws of Nevada

County and the Gympie region, a broader view of the law reveals that the same pattern of tensions gave the law its shape. In both regions, the law sought to maximise the productivity of miners. In placer mining claims, this was achieved by linking title to the claim to continuous occupation and work. In quartz mining claims, the mining law in both regions granted a more secure title to miners.

At the same time, the supposed democracy of the gold fields was undermined by the discriminatory laws, both formal and informal, that limited Chinese access to the mines. These similarities suggest that the history of mining law in both regions can be expanded beyond their state and national legal systems and the story of mining law in Nevada County and the Gympie region can form part of a wider transnational story.

169 PART II: COMMERCE ACROSS THE PACIFIC

CHAPTER 6

COMMERCIAL LAW IN NEVADA COUNTY

The story of commerce in Nevada County is as long as the story of mining. As early as 1849, trading posts in the region supplied the first miners who searched the streams and rivers for gold.1 In October

1849, A. B. Caldwell erected a log store around Little Deer Creek on what became Nevada Street in

Nevada County. Caldwell’s Store supplied staples such as pork, biscuits and whiskey.2 Benjamin

Avery, a miner, described the store in 1850 as a “square canvas shanty, stocked with whiskey, pork, mouldy biscuit and gingerbread; the whiskey four bits a drink, the biscuit a dollar a pound”.3 By the spring of 1850, the discovery of gold in and around Deer Creek and the corresponding influx of miners prompted the development of further stores. Madame Penn built a boarding house on the site where the Union Hotel would later stand, Robert Gordon had a large store on Commercial Street, and

Hamlet Davis opened a store on Broad Street (Figure 6.1).4 Avery wrote that by the spring of 1850,

“teamsters and packers arrived with supplies from the lower country”5 and by September, the

Sacramento Transcript observed that “merchants are doing a fair business”.6

1 Brown and Dallison’s Nevada, Grass Valley and Rough Ready Directory (1856), transcribed by Maria E. Fields Brower (2001) (Doris Foley Historical Library, Nevada City, California), pp. 9-10. 2 Brown and Dallison’s Nevada, Grass Valley and Rough Ready Directory (1856), p. 21; Directory for Grass Valley and Nevada for 1861 (Doris Foley Historical Library, Nevada City, California), p. 7. 3 Wells, History of Nevada County, p. 79. 4 Wells, History of Nevada County, pp. 79-80. 5 Wells, History of Nevada County, p. 79. 6 Sacramento Transcript, 26 July 1850.

170 Figure 6.1: Broad Street, Nevada City in 1857

Courtesy: Searls Historical Library

Commerce flourished in the region’s first years. The first edition of the Nevada Journal, published in

April 1851, contained advertisements for a bakery, five different general stores, a milk depot, a tin maker, a watch maker, a store specialising in mining supplies, a drug store, a doctor, two boarding houses, four sets of lawyers, and two hotels.7 Grass Valley was described as having 50 trading establishments.8 Between 1850 and 1860 business in Nevada County grew steadily. By 1860, the number of people in Nevada City and Grass Valley who identified themselves as “businessmen” had almost doubled (Figure 6.2).

7 Nevada Journal, 19 April 1851. See advertisements for the Deer Creek Bakery, Davis and Hurst’s general store, the grocery store of J K O’Farrell, the Milk Depot, Webster & Co’s Western Market, Hubbard & Hodge Attorneys at Law, W T Barbour Attorney, Turner & Dumars’ Nevada Hotel, Lovell & Brown’s Empire Hotel, the Gregory House, A Rogers’ Grocery store, T W Freeman Attorney at Law, William Hayden’s boot and shoe shop, W. Davis Williams’ tin store, Field & Co’s mining supplies, W B Woods & Brothers wholesale & retail store, Broad Street House, City Drug Store, Placer Hotel, W. Noel watch maker, P B Fagan MD, Williams & Caswell Attorneys at Law. 8 Nevada Journal, 19 April 1851.

171 Figure 6.2: Businessmen in Nevada City and Grass Valley 1850-18609

1850 1860 Nevada City 95 176 Grass Valley 70 124 Total 165 300

Source: Ralph Mann, After the Gold Rush: Society in Grass Valley and Nevada City, California 1849-1870, (Stanford, CA: Stanford University Press, 1982), p. 226

Throughout the decade of the 1850s, men participated in economic life as miners, merchants, storekeepers, and professionals such as lawyers and doctors. Entrepreneurial women also formed an important part of economic life, but their role was confined primarily to the provision of accommodation, usually in the form of taking boarders into the family home. Underpinning all commercial prosperity was the discovery and continued availability of gold.

Commerce in Nevada County operated within the economic context of a financial system that was based on hard currency (bank notes were prohibited) and the social context of a society made up of emigrants who generally arrived in California with nothing and expected to make their fortune on arrival. To accommodate this, Californian bankers extended credit to merchants, entrepreneurs and even other bankers, creating what became a network of indebtedness. This system operated effectively (for a time) because the commercial laws of California were, almost without exception, respected by commercial participants and enforced in the civil courts. This booming market, however, relied on the assumption that the supply of gold was inexhaustible. This put the long term viability of the credit system at risk. As the economy slowed and the network of credit began to unwind, the casualties were those at the end of the credit chain.

The commercial law worked alongside the mining law to allow the mining industry to transform from one based on individual enterprise to one dominated by large mining companies. As larger amounts of capital were required to pursue more complex forms of quartz mining, California’s company laws were used by mining entrepreneurs to form companies and attract investment. This consolidation created conditions that allowed an economic hierarchy to develop. By the end of the 1850s, miners no longer worked for themselves, but were more likely to be working as part of a wage labour force that

9 A businessman is defined by Mann as including hotel keepers, lumbermen, merchants and those with multiple interests.

172 was employed by the large mining companies. The casualty of the productivity that was made possible by the commercial law was the small miner.

The participants

Nevada County’s economy was sophisticated and diversified. By January 1855, Nevada County was home to two newspapers, four banking houses, 98 mercantile houses, 2 jeweller stores, 79 retail liquor stores, 24 hotels and boarding houses, 18 attorneys, 15 doctors, 3 dentists and 3 drug stores.10 The

Nevada City directory for 1856 advertised businesses as diverse as a druggist and apothecary, a dental surgeon, a theatre, a large number of general stores selling all manner of products including liquor and mining supplies, several clothing stores, a printing press, a book store, various contractors and builders, several restaurants, stables, surveyors and surgeons. Also advertised were blacksmiths, butchers, bankers, bakeries and attorneys.11 Nevertheless, the mining industry dominated the economic landscape. In 1850, miners made up 71 per cent of the male population of Grass Valley and

82 per cent of the Nevada City population. Throughout the decade, miners made up the majority of the population. By 1860, 76 per cent of the male population of Grass Valley was involved in mining and 66 per cent of the males in Nevada City worked as miners.12 The income of merchants and professionals was therefore derived primarily from servicing the mining population. The availability of gold was linked strongly to commercial prosperity.

The Nevada County directories and the Californian census figures distort, to some extent, the picture of economic activity. Although women formed only a small part of the Nevada County population, they played a comparatively important economic role. The social status of women had a significant influence on their economic activity. Most obviously, married women operated within a different commercial context to single women.13 Ralph Mann has demonstrated that married women in Nevada

County were most likely to be involved in the business of taking in boarders, while unmarried women

10 Nevada Democrat, 3 January 1855; Wells, History of Nevada County, p. 82. 11 Brown and Dallison’s Nevada, Grass Valley and Rough Ready Directory (1856). 12 Mann, After the Gold Rush, p. 226. 13 See, generally, Edith Sparks, “Married Women and Economic Choice: Explaining Why Women Started Businesses in San Francisco between 1890 and 1930” Business and Economic History 28(2) (Winter 1999) 287-300.

173 were more likely to be engaged as servants, professionals (such as a seamstress or a milliner), or as a prostitute (Figure 6.3). In compiling his figures from the 1860 census, Mann notes that the figures under-represent the economic activity of women because census takers were reluctant to record a woman’s occupation unless she lived alone, or supported her family. Further, only socially acceptable occupations were recorded. Occupations such as prostitution were inferred by Mann by investigating the living arrangements of the women. Similarly, if a married couple lived with additional working men or women, Mann assumed that the wife was responsible for taking care of the boarders.

Figure 6.3: Occupation of women in Nevada City and Grass Valley in 1860

Keeps house 331 Keeps boarders 231 Prostitute 43 Servant 39 Seamstress/Milliner 11 Merchant 4 Teacher 4 Laundry 3 Miner 2 Cook 1 Baker 1 Doctor 1 Stablehand 1 Student 1 Total 673

Source: Adapted from Ralph Mann, After the Gold Rush, p. 242

By Mann’s estimate, around half of the women recorded in the 1860 census were engaged in some form of economic activity. The most prominent occupation was the keeping of boarders. This was economically significant in two respects. Not only did it provide working miners with cheap accommodation so that they could pursue the business of mining gold (and thus inject money into the

Nevada County economy), but it also assisted the home economy. Jonas Winchester noted the significance of this additional income when his housekeeper, Ann, began taking in boarders. He wrote to his wife that, “Ann now has eight boarders, at $10 a week, which will pay all expenses and her wages”.14 Some of the women in Nevada County had a decidedly entrepreneurial streak. Luzena

Wilson wrote that on arrival in Nevada City, “I cast my thoughts about me for some plan to assist in

14 Letter of 25 February 1854 (Jonas Winchester Collection, California State Library, Sacramento).

174 the recuperation of the family finances” and determined to establish a hotel, which became known as the El Dorado. When her husband returned at night, Wilson wrote that he found “twenty miners eating at my table. Each man as he rose put a dollar in my hand and said I might count him as a permanent customer”.15 Wilson’s hotel grew to such a size that each week she had between 75 and

200 boarders.16

Under the common law, married women suffered under an economic disability. From the time of a woman’s marriage, her husband was entitled to the use of her real estate, ownership of her personal property, and ownership of property acquired during the marriage. A married woman could not enter into contracts on her own behalf (although could enter contracts as agent for her husband). Put simply, a married woman lost her “legal existence and authority” during “the continuance of the matrimonial union”.17

Married women were assisted, however, by legislation that was passed in April 1852 to allow them to transact business in their own name on the condition that they invested no more than $5,000. The woman then assumed all risks, losses, profits and benefits of the business.18 Thus, on 3 July 1852,

Miriam Elizabeth Peckham published the following in the Nevada Journal:

TO ALL WHOM IT MAY CONCERN: - I, Miriam Elizabeth Peckham, of Centreville, in the

township of Grass Valley, in the county of Nevada, and in the State of California, wife of

Henry C. Peckham of the same place, in compliance with and under the provisions of an act

passed April 12th AD 1852, entitled, “an act to authorize married women to transact business

in their own names as sole traders,” do hereby declare that I intend henceforth to carry on in

my own name, and on my own account, the business of “hotel keeping” together with the

business of “saloon” and “restaurant”.19

15 Wilson, Luzena Stanley Wilson ‘49er, p. 27. 16 Wilson, Luzena Stanley Wilson ‘49er, p. 28. See also Mann, After the Gold Rush, p. 44. 17 Friedman, A History of American Law, p. 147, quoting James Kent’s Commentaries on American Laws. 18 An Act to Authorize Married Women to Transact Business in Their Own Name as Sole Traders, Ch. 42, Laws of the State of California, 3rd session (1852). 19 Nevada Journal, 3 July 1852.

175 Miriam Peckham was not the only married woman to take advantage of the legislation. Caroline

Frisbie,20 Mary Jane Smith,21 and Alphonsine Mau22 advised of their intentions to carry on the business of keeping a saloon. Antonelle Alexander,23 Margaret Bell,24 Isabella Connor25 and Victoria

Bergentz26 carried on the business of keeping a boarding house. Other women were traders,27 grocers28 and others kept a laundry.29 The evidence suggests that women were more likely to be engaged in occupations that were classified as ‘feminine’. This was not because law defined appropriate occupations, but because certain occupations, such as the keeping of boarders, or running a hotel were seen as acceptable. Other more masculine occupations were not. Nevertheless, the importance of women to the home economy is revealed by the fact that in Grass Valley, only 2 per cent of all miners owned property valued over $1,000 in 1860 and in Nevada City, 3 per cent of miners owned that value of property in 1860. Married miners were far more financially secure. In

1860, 21 per cent of married miners in Grass Valley and 26 per cent of married miners in Nevada City owned property over $1,000.30

On one hand this legislation was a step forward for the economic rights of women, but on the other hand it was suggested that the legislation was more likely to be manipulated by a husband to “conceal his property, and to avoid the payment of his just debts and liabilities”. An editorial in the Nevada

Democrat concluded that, rather than promoting the economic rights of married women, that there

“cannot be a doubt” that “an extensive system of fraud has grown up under this statute”.31 Married women also remained subject to significant economic disabilities. A husband, for example, had the

20 Nevada Journal, 10 July 1853. 21 Nevada Journal, 21 January 1853. 22 Nevada Journal, 27 May 1853. 23 Nevada Journal, 27 May 1853. 24 Nevada Journal, 1 July 1853. 25 Nevada Journal, 13 January 1854. 26 Nevada Journal, 16 June 1854. 27 Mary Hamilton, Nevada Journal, 27 May 1853. 28 Clare Backman, 30 December 1853. For other women, see Melanie Schneider, Nevada Democrat, 22 February 1854; Ann Burns, Nevada Democrat, 2 May 1855. 29 Priscilla Scott, Nevada Journal, 1 July 1853. 30 Mann, After the Gold Rush, p. 240. 31 Nevada Democrat, 31 December 1856.

176 management and control of his wife’s property during the period of their marriage32 and the entire management and control of the common property of the marriage.33 As late as January 1863, it was determined in the Justice Court of Bridgeport Township that Catherine Helm, a married woman, was

“not liable on her individual contracts” by virtue of her marital status.34

The court system

The legal system supported the Nevada County economy. At its base was the Justice Court, which was convened by a Justice of the Peace. This court had jurisdiction to hear claims where the debt or damage (not including interest) was less than $500.35 Each township within Nevada County elected two Justices of the Peace each year.36 Many of these men dispensed justice fairly and efficiently.37

Luther M. Schaeffer, described one justice who was “a man of ‘infinite jest and exquisite fancy’” and argued that he was “[c]ertainly the best informed lawyer in the village, and a man before whom most of the ‘law cases’ were tried”.38 One of the more colourful justices of the peace was Zeke Dougherty, an Irishman who was between seventy and eighty years old and who looked “more like a skeleton than a human being”. He had “a squealing voice which would mount to the sky in a high key when he spoke in earnest”, but in the opinion of William Stewart, the future United States Senator, “he had a sense of justice as strong as any man I ever knew”.39 There were also exceptions. Schaeffer described another judge as “an exceedingly clever and hospitable man, but totally unqualified for the office to which he was elected”.40 However, the absence in newspapers and other sources of the

32 Section 3, An Act defining the rights of husband and wife, Ch. 103, Laws of the State of California, 1st session (1850). 33 Section 9, An Act defining the rights of husband and wife (1850). 34 Justice Court, Bridgeport Township, Nevada County, 1862-1863 (Searls Historical Library, Nevada City, California). 35 Section 87, An Act concerning the Courts of Justice of this State, and Judicial Officers, Ch. 1, Laws of the State of California, 2nd session (1851); Section 67, An Act concerning the Courts of Justice of this State and Judicial Officers, Ch. 180, Laws of the State of California, 4th session (1853). 36 An Act Concerning Offices, Ch. 104, Laws of the State of California, 2nd session (1851). 37 John R. Wunder, Inferior Courts, Superior Justice: A History of the Justice of the Peace on the Northwest Frontier, 1853- 1889 (Westport, CT: Greenwood Press, 1979). 38 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 135-136. 39 Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 95-97. Other early judges included: Addison Niles, a graduate of Williams College and later judge of the California Supreme Court, see Comstock, Brides of the Gold Rush, p. 40; Tallman Rolfe, who read law in Ohio before travelling to California, see Comstock, Gold Diggers & Camp Followers, p. 21. 40 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 135-136.

177 period of substantial criticism of the conduct of these judges suggests that incompetent judges either did not receive much work, or were not reelected.

A civil judgment of a Justice of the Peace could be appealed to the County Court, which sat four times a year. Terms commenced on the third Monday of January, April, July and October and continued until all the business for that term was completed.41 The County judge was elected by the voters in the County. The first Nevada County judge was Thomas H. Caswell, who was elected in May 1851, at the tender age of 26. Judge Caswell was born in New York in 1825 and arrived in Nevada County in 1849. When he was 18, Caswell began to read law in Arkansas, before studying for 18 months at

St Mary’s College in Kentucky and finally returning to Arkansas to complete his studies.42 Judge

Caswell served until 1859 when David Belden, an emigrant from Connecticut and a longtime lawyer in California, succeeded him.43

Above the Justice Court sat the District Court, but its jurisdiction overlapped with the Justice Court.

It could hear all civil cases where the amount in dispute was over $200.44 Each District Court heard cases from a number of counties. Nevada County was, until 1851, part of Yuba County and the

District Court was held in the County seat of Marysville. This was problematic because the distance between Nevada City, Grass Valley and Marysville was prohibitive.45 When Nevada County was created, Yuba, Sutter and Nevada Counties were formed into the 10th judicial district and the District

Court convened in Nevada County three times each year.46 William T Barbour was elected as the first judge of the District Court for the 10th judicial district. Barbour was succeeded by Niles Searls, who later went on to serve on the Californian Supreme Court.

41 Section 2, An Act to organize the County Courts, Ch. 92, Laws of the State of California, 1st session (1850). 42 Comstock, Gold Diggers & Camp Followers, p. 366. 43 An Act to fix the Compensation of County Judges and Associate Justices of the Court of Sessions, Ch. 134, Laws of the State of California, 1st session (1850); “Rules of the County Court of Nevada County” Nevada County Historical Society Bulletin 21(1) March 1967. 44 Section 19, An Act concerning the Courts of Justice of this State and Judicial Officers (1851). 45 See generally, Wells, History of Nevada County, p. 56. 46 Section 30, An Act concerning the Courts of Justice of this State, and Judicial Officers (1851). Note that in 1855, Nevada County was transferred to the 14th judicial district. See also Wells, History of Nevada County, p. 93.

178 The Justice and District Courts were dominated overwhelmingly by civil actions. The Nevada County

District Court heard 261 civil cases in the year between June 1856 and June 1857. In contrast,

between 1856 and 1863, the Nevada County Court of Sessions heard only 210 criminal cases. This

means that the District Court heard around 20 per cent more civil cases in one-eighth of the time. The

disparity between civil and criminal cases was just as apparent in the Justice Courts. At Bridgeport

Township in Nevada County, only 8 criminal cases were heard between December 1862 and April

1863, but the court heard 27 civil cases. This was not unusual across the West. In his study of

Justices of the Peace on the northwest frontier between 1853 and 1889, John Wunder found that debt

recovery cases comprised around 71 per cent of all cases heard by the judges.47 As we shall see, the

vast majority of these cases were decided in favour of the plaintiffs. Thus, a trader, merchant,

storekeeper or professional in Nevada County could be confident that they were conducting their

business in a supportive legal environment that, above all else, upheld the sanctity of contract.

Banking in early California

California’s early financial system developed in the context of a wider national debate over the merits

of commercial banking. Commercial banks in the nineteenth century tended to accept deposits, make

loans and exchange drafts (a draft was an instruction to another bank to pay money to the holder of

the draft). Some banks operated under a charter granted by a state legislature that authorised the bank

to issue paper money (the paper money or ‘note’ relied on gold as a measure of its value).48 A

financial panic in 1837, which saw the suspension of several New York banks and sparked a series of

‘runs’ on banks across the United States, led to a degree of hostility towards banks, particularly the

issuing of paper money.49 This distrust of banking operations can be seen in the debates of the

California Constitutional Convention.50 As a result, section 34 of the Californian Constitution

47 Wunder, Inferior Courts, Superior Justice, p. 149. 48 Larry Schweikart and Lynne Pierson Doti. " From Hard Money to Branch Banking: California Banking in the Gold-Rush Economy" in James J. Rawls and Richard J. Orsi eds., A Golden State: Mining and Economic Development in Gold Rush California (Berkeley: University of California Press, 1999), p. 209. 49 Larry Schweikart, “Arkansas Antebellim Banks” Southern Studies 26 (1987) 188-201; Earling A. Erickson, “Money and Banking in a ‘Bankless’ State: Iowa, 1846-1857” Business History Review 43 (1969) 171-191. 50 Le Roy Armstrong, J. O. Denny, Financial California: an historical review of the beginnings and progress of banking in the State (San Francisco, CA: The Coast Banker Publishing Company, 1916), p. 18.

179 prohibited the legislature from granting “any charter for banking purposes”, but did allow associations to be formed for the deposit of gold. These associations, however, could not “make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money”. Section 35 of the Constitution went further and prohibited any person or association from “exercising the privileges of banking, or creating paper to circulate as money”. It was intended that the Californian economy would be based on metal currency. The difficulty, however, was that the population that flooded into California brought little specie with them. Thomas

Wells, who quickly became one of San Francisco’s most prominent early bankers, arrived from New

England in July 1849 with “practically nothing”.51 Furthermore, the nearest mint for the manufacture of coins was 3,000 miles away. In 1850 the amount of hard money in circulation in California was small in comparison to its growing population.52 The discovery of gold in California provided a solution to this problem. Until 1854 when a Government Mint was established in San Francisco, gold was used as currency. This included Spanish doubloons, American eagles and half eagles, private mint coins, slugs, bars and gold dust itself.53 Nevertheless, hard currency remained so scarce by 1855 that the Nevada Democrat joked that “money is so scarce in the Western States that when two dollars meet they have to be introduced to each other”.54

The tight control of banks in California is an example of an attempt by the Californian State

Government to regulate the economy and, in turn, promote the general welfare of the State. The economic reality, however, was that such a system could only stifle productivity. Instead, economic customs determined the application of the law. As one historian has suggested, “the constitution and the legislature’s stipulations regarding paper money and banks already had been rendered obsolete and irrelevant by the market, which daily saw hundreds of miners exchange gold for drafts”.55

Despite legal restrictions, banking operations evolved naturally out of the essential nature of gold

51 Armstrong and Denny, Financial California, p. 55. 52 Benjamin C. Wright, Banking in California: 1849-1910 (San Francisco: H S Crocker Company, 1910), p. 7. 53 Wright, Banking in California, p. 8. 54 Nevada Democrat, 6 June 1855. 55 Schweikart and Doti, "From Hard Money to Branch Banking: California Banking in the Gold-Rush Economy", p. 221.

180 mining and the deposit by miners of gold with merchants and other entrepreneurs for safe keeping.56

As early as 1849 it was observed that the only qualification to take up banking in California was the confidence of the public and the ownership of a safe in a strong building.57 The entrepreneurial

Luzena Wilson noted that miners at her hotel “dropped into the habit of leaving their dust with me for safe keeping”. Wilson not only stored gold dust, but also began to lend some of her savings at the

“extravagant rate” of 10 per cent per month.58

Many of the first bankers in California were assayers who purchased dust from miners in return for drafts on Eastern banks. These assayers then attempted to sell the gold for a profit in the Eastern

States.59 The work of an assayer was not necessarily easy. Gold was not always pure and often contained other minerals, metals, or dirt. Dealers weighed the gold to determine the value and made a judgment as to its purity.60 Nevada City had its fair share of assayers. In October 1851, for example,

William Dusuzeau announced that he was moving his assay business from San Francisco to Broad

Street in Nevada City.61 In the 1856 directory of Nevada City, Charles W. Mulford advertised his banking business that was located in a “fire-proof building”. Mulford advertised that he would pay

“the highest price for Gold Dust, Gold Bars, and County Scrip; will procure Drafts on the Atlantic

States and Europe ... forward Dust for coinage to the US Branch Mint, and if desired will make advances on the same”. He also noted that he had “one of the best Iron and Brick Vaults in the mountains” and was well equipped to “receive Deposits, special and otherwise”. A J Hagan similarly advertised his business in the directory, noting that he would provide drafts on banks in New York,

56 Armstrong and Denny, Financial California, p. 18. 57 Wright, Banking in California, p. 15; Schweikart and Doti, "From Hard Money to Branch Banking: California Banking in the Gold-Rush Economy", pp. 216-217; Armstrong and Denny, Financial California, p. 42. 58 Wilson, Luzena Stanley Wilson ‘49er, pp. 31-32. 59 Armstrong and Denny, Financial California, p. 14. 60 Wright, Banking in California, p. 15; Schweikart and Doti, "From Hard Money to Branch Banking: California Banking in the Gold-Rush Economy", pp. 212-214. 61 Nevada Journal, 11 October 1851. Also see the advertisement of F. Schottee, Smelter and Assayer, located on Main Street, Nevada City.

181 Boston, Philadelphia, Baltimore, Cincinnati, St Louis, Pittsburgh, Louisville, Detroit, London,

Frankfurt and Stuttgart.62

Express companies also performed banking functions.63 The role of these companies was originally to transport gold from the mines to San Francisco. At first this business was reasonably informal. It was observed that miners on the Feather and American rivers accumulated thousands of dollars worth of gold, which they “habitually entrusted to chance acquaintances who were going to San Francisco, with the simple and unsecured promise to deposit it in safety to the credit of the owner”.64 It is questionable how widespread this practice was and whether subsequent recollections were tainted by the romance of the period, but it is nevertheless true that the business of shipping gold found in the mining districts and exchanging it for drafts on local or Eastern banks was lucrative.65

The most famous of the express companies were: Adams & Co; Page, Bacon & Co; Palmer, Cook &

Co; Todd & Co; and Wells, Fargo & Co. These companies originally engaged only in the express business, but they became involved increasingly in buying gold, receiving deposits, selling drafts and making loans.66 These companies had offices in “every prominent mining camp in the State,”67 including Nevada County. In September 1850, the Sacramento Transcript reported that James S.

McDowell was the agent for Monson & Co in Nevada City, which performed “all the usual business of an express”.68 On 14 June 1851, Davis & Hirst’s Express advertised that it would forward gold dust “through the old established and undoubted house of Adams & Co, who do the principal Express business to the Atlantic States”. It also advised that it would “sell bills of exchange on the principal

62 See also advertisement of Williamson & Dawley, located on Main Street, Brown and Dallison’s Nevada, Grass Valley and Rough Ready Directory (1856). 63 Armstrong and Denny, Financial California, p. 15. 64 Armstrong and Denny, Financial California, p. 41. 65 Wright, Banking in California, pp. 15-16. 66 Wright, Banking in California, p. 17. 67 Armstrong and Denny, Financial California, p. 42. 68 Sacramento Transcript, 2 September 1850.

182 cities in the U. States, or furnish bills from bankers in San Francisco known to be undoubted”.69 By the end of 1851, both Adams & Co and Wells, Fargo & Co had offices in Nevada County.70

These early bankers held large stocks of gold, which meant that they were in a position to loan money to merchants and other entrepreneurs. These loans were made at what would now be considered to be outrageous interest rates of between 10 and 12 per cent per month.71 By the middle of the 1850s, these extraordinary rates of interest had fallen to the rate of 2 or 3 per cent per month. A review of the judgments of the District Court of Nevada County between June 1856 and June 1857 reveals that the rate of interest generally specified in loan documents was either 2 or 3 per cent.72 During the boom of the first 5 years, bankers did not need to be particularly diligent in checking the solvency of their potential creditors. The market was one in which real estate values could double overnight and in this climate, a banker “might be excused for an extension of credit that proved unfortunate”.73

Although the Californian State Government sought to regulate the realm of banking in order to promote the economic welfare of the State, the economic reality of gold mining combined with the geographic remoteness of California meant that the strict enforcement of the banking laws would have significantly impeded the development and growth of the Californian economy. Instead, banking operations flourished and, in the sense envisaged by Hurst and Friedman, the general consensus of the community drove the application of the law to maximise economic efficiency.

The Credit System

The epicentre of California’s credit system was in San Francisco where bankers loaned money to merchants to enable them to buy their supplies.74 When a ship with supplies arrived, potential purchasers quickly boarded the ship and “whole miscellaneous cargoes were purchased with as little

69 Nevada Journal, 14 June 1851. 70 Wells, History of Nevada County, p. 123. 71 Paul, California Gold, p. 122; Armstrong and Denny, Financial California, p. 14; Wilson, Luzena Stanley Wilson ‘49er, pp. 31-32. 72 District Court Judgment Book, 1856-1857 (Doris Foley Historical Library, Nevada City, California). 73 Armstrong and Denny, Financial California, p. 54. 74 Rodman W. Paul, “After the Gold Rush: San Francisco and Portland” The Pacific Historical Review 51(1) (Feb 1982) 1- 21 (p. 6); Paul, California Gold, p. 169.

183 ado as the smallest package from a retail store”.75 Some of these San Francisco merchants then sold a

portion of their goods to interior merchants, usually on credit. The intention was that once these

goods were sold, the interior merchants would settle their accounts. In this way, the interior

merchants became indebted to the San Francisco merchants. But the network of indebtedness did not

end there. Interior merchants sold goods to miners in their region; sometimes for cash, but usually on

credit. Miners were only able to settle their accounts when they discovered gold. The Nevada

Democrat reprinted an article from the San Francisco Herald that neatly summarised the system:

“certain parties have volunteered a credit to traders from the interior, in order to obtain business, and others have been compelled to sell on the same terms to retain their customers”. The consequence, the article argued, was that “large amounts are due by the traders to the mercantile communities in the cities, particularly San Francisco, amounts of which the traders cannot pay, because they in turn have trusted the miners, many of whom are deprived of all resources by their inability to work their claims”.76

Nevada County businesses embraced this system with the result that many had significant debts in

San Francisco. Simon Rosenthal & Bros, for example, owed Sacramento merchants $2,390 for goods

sold and delivered. These goods included items such as drapes, silk, scarves, ties and gloves.77 This

was usually unproblematic because the value of the business rested in the unsold goods. While they

still existed, there was an opportunity for the goods to be sold and the account to be paid. Problems

could arise when goods were lost or destroyed. The first of what was to become a series of fires in

Nevada City occurred on 11 March 1851. In this fire 150 buildings were destroyed.78 A less

significant fire occurred in Nevada City on 7 September 1852, destroying 12 buildings. Similar fires

broke out on 28 November 1854, 20 February 1855, 23 May 1858 and 26 December 1859. The most

significant blaze of the 1850s occurred on 19 July 1856, when a fire was accidentally started in

Hughes’ blacksmith shop on Pine Street and quickly spread throughout the town, causing losses of

75 Wright, Banking in California, p. 15. 76 Nevada Democrat, 3 January 1855. 77 Taafe, McCahill & Co v S Rosenthal & Bros, District Court, Case No. 152 (Searls Historical Library, Nevada City, California). 78 Sacramento Transcript, 13 March 1851.

184 over $1,000,000. The extent of the losses reveals how significant commerce had become in Nevada

City by 1856 and also the scale of economic suffering that fire could cause.79

After the fire in July 1856, a number of Nevada County merchants were unable to repay their debts to their San Francisco creditors. Abbott & Edwards, Nevada County furniture dealers who were considered to be “prompt and energetic businessmen” could not repay their debts to Whitney & Co of

San Francisco. As a result, a court order was issued to sell all of their property.80 Similarly, the store of Henry and Moses Hirschman was forced out of business as a result of unpaid debts. The Nevada

Journal reported that the Hirschmans “suffered heavily in the fire of a year ago, losing all their property which was considerable, and leaving a debt in San Francisco”.81

Equally as important was the way in which the Nevada County merchants extended credit to ordinary citizens. Local storekeepers allowed customers to open accounts and to purchase goods on those accounts. Customers periodically ‘settled’ their accounts. This was a particularly important system for ordinary citizens. The mining industry was cyclical. The ability to buy goods on credit allowed citizens to purchase goods during the dry season, or at other times when gold could not be found. In this way, the credit system operated to smooth the fluctuations in the economic cycle. The fact that this was a widespread commercial practice is revealed by the fact that when a partnership wished to dissolve, it was usual for that partnership to call for the payment of all outstanding debts. Thus, when the partnership of E B Comstock & Co dissolved, the firm requested “all persons indebted” to “make payment on or before the 1st day of May 1859”.82 So, too, did merchants who wished to depart the

County for a short time, or who just wanted a clear balance sheet.83

A good example of the nature and extent of credit extended to residents is found in the account book of Collins & Co, a Nevada City grocer located on Main Street that sold provisions such as sugar, salt,

79 Wells, History of Nevada County, pp. 84-85. 80 Nevada Democrat, 8 April 1857. 81 Nevada Journal, 14 August 1857. 82 Nevada Journal, 8 April 1859. See also the dissolution of the partnership between Julius Dreyfuss and Osha Eastman, Nevada Democrat, 21 January 1859. 83 William Taylor, Nevada Journal, 22 June 1855; Charles Denzer, Grass Valley Telegraph, 4 September 1855; A B Gregory, Nevada Journal, 6 June 1856; William Ross, Nevada Journal, 13 June 1856; Dr H Hunt, Nevada Journal, 11 September 1852.

185 flour, coffee, tea, and various liquors.84 Collins & Co allowed both its liquor and grocery customers to keep accounts. The partnership had 103 liquor accounts open in 1859. Each customer’s liquor debt was usually somewhere between $5 and $15. Collins & Co. had slightly more grocery customers, and its grocery account book listed 125 customers. The majority of these customers owed between $10 and $50.

Smaller accounts, usually liquor accounts, were settled around once each month. For example, on 17

May 1859, Daniel Collins loaned Thomas Dorsey the sum of $30. Almost a month later, Dorsey had accrued a further debt of $17.50, but repaid $20 of this. Dorsey settled his entire account 10 days later with a payment of a further $28.50. This did not last and two days later Dorsey was again in debt to Collins. By 23 August, Dorsey had incurred a debt of $37 (of which he repaid $20) and the following month he owed Collins a further $50 (which he repaid on 25 September 1859).

Larger accounts, usually for grocery purchases, were settled less frequently. A small portion of customers paid their debts as they arose, but the majority paid their debts once every two or three months. Charles Kent was one such customer. Kent opened an account on 2 June 1861 and purchased flour, candles, and nutmeg at a value of $2.63. On 5 June, he bought coffee, flour, and tea, but paid for these at the time. The following day he bought sugar, vinegar, and coffee for $1.75.

From this point onwards, Kent bought items on credit. He attended the store twice more in June, 10 times in July, 9 times in August, 13 times in September, and a further 44 times in 1861, buying provisions such as potatoes, salt, butter, coffee, candles, sugar, raisins, and bottles of brandy and madeira. On 26 December he owed Collins $150.97. After a further 37 visits in 1862, Kent owed

$227.12 until he finally settled the account. Not all customers allowed their debts to accrue like Kent.

George Baldwin, for example, attended Collins’ store almost as frequently as Kent, but paid to Collins

$40 on 13 March 1861, $57 on 20 May, $9 on 2 June, $56.63 on 17 September and $43.58 on 25

October. The Collins & Co. account book noted specifically when accounts were settled in cash.

This suggests that accounts may have settled by other methods, perhaps by exchange of goods or

84 Collins & Company account books (ms. BANC MSS C-G 223, Bancroft Library, University of California, Berkeley).

186 services. Jonas Winchester, for example, in October 1853 referred to paying “a good many debts” by the provision of lumber.85

An individual could be indebted to a number of different creditors. When Robert Bell applied on 1

August 1855 to the District Court to be discharged from his debts on the ground of insolvency, he listed 19 different creditors. These included $1,000 borrowed from John Martin & Co in 1850, an account for $40 with Hussey & Rogers and $90 with Rosenthal & Co. Bell also had an account for meat for $176, an account at the American bakery of $28, another at the Nevada Bakery of $72, and he owed R Schell $25 for labour.

In addition to purchasing goods and services on account, a customer might pay by way of promissory note. A promissory note was a promise to pay a sum of money at a future date. These notes usually required the payment of the borrowed amount, with the addition of interest. A promissory note was more than simply a promise to pay between two parties, but could be transferred to third parties. This feature, called ‘negotiability’, meant that once the note was transferred, the person in possession of the note had the same rights as the person who transferred the note and could demand payment.86

This concept was specifically provided for in legislation passed in April 1850.87 In California where hard currency was scarce and bank notes were prohibited, promissory notes could be passed around the community as a type of currency. This could be a very subtle and technical distinction. Agenti &

Co, for example, issued bills of $50, $100, $500 and $1000 that looked very much like bank notes, but were drafted in such a way as to be, in a very technical sense, merely promissory notes.88 The transfer of promissory notes was widespread in Nevada County, evidenced by the number of references to misplaced or fraudulent notes that appeared in local newspapers. When two notes were given by

Hastings & Co., but subsequently found to be given improperly, Hastings & Co. advertised in the

85 Letter of Jonas Winchester, 15 October 1853 (Jonas Winchester Collection, California State Library, Sacramento). See also letters of Jonas Winchester, 14 January 1854, 12 February 1854, in which Winchester describes the payment of further debts by the provision of lumber. 86 Friedman, A History of American Law, p. 195. 87 An Act relative to Bonds, Due Bills, and other instruments in writing, and making them Assignable, Chapter 121, Laws of the State of California, 1st session (1850); An Act relating to Bills of Exchange and Promissory Notes, Ch. 100, Laws of the State of California, 1st session (1850). 88 Armstrong and Denny, Financial California, p. 38. This was an important distinction because paper money was prohibited.

187 Nevada Democrat cautioning the public against purchasing either of the two notes.89 James Phillips

engaged in a similar form of protection in September 1851 when he cautioned the public against

receiving “a note of hand which I gave at Nevada City on the 4th day of June ... to John H

Wheeling”.90

The system of credit became so widespread and for a short time operated effectively because it had

the institutional backing of the courts and the support of the Californian and Nevada County

population. As previously mentioned, the majority of the civil cases brought before the courts in the

1850s were for the recovery of debts. A survey of the Justice Courts in and around Nevada County

between 1850 and 1863 reveals that debt recovery actions made up 89 per cent of the cases heard.

Similarly, the District Court between June 1856 and June 1857 heard 161 cases of debt recovery,

comprising 62 per cent of total cases (Figure 6.4).

Figure 6.4: Debt recovery cases heard in Justice Courts and District Court in Nevada County

Justice Courts (1850-1863) District Court (June 1856 – June 1857) Cause of Number Percentage Average Cause of Number Percentage Average action of cases debt action of cases debt Promissory 41 40% $142 Promissory 57 22% $1,967 Note Note Goods or 50 49% $112 Goods or 104 40% $1,330 services services provided on provided on credit credit Other cases 12 11% Other cases 100 38% Note that the category of “other cases” includes cases of insolvency, dissolution of marriage, and cases where no cause of action was disclosed. Source: Records of Justice Courts in Nevada Source: District Court Judgment Book, Doris Foley County and Placer County91 Historical Library, Nevada City, California

Of these debt recovery cases, almost half were actions brought on promissory notes. Where a debt

89 Nevada Democrat, 15 March 1854. See also Nevada Democrat, 9 August 1855 cautioning against the purchase of a lost note. 90 Nevada Journal, 13 September 1851; See also the notice of Saloman Kohlman, Nevada Journal, 18 March 1852; Notes given to Isaac Nixon, Nevada Journal, 15 May 1852; Notice of G W Worrell & R S Worrell, Nevada Journal, 29 May 1852; Notice of De Zavala Alexander, Nevada Journal, 26 November 1852; Notice regarding notes stolen from David Patterson, Nevada Democrat, 2 February 1859. 91 These figures are developed from a review of the following records: Dockets of Justices E H Snyder, John Hyland, J L Robertson, Matthew Jansen, and A J Bishop, Justice Court (Last Chance) (ms. BANC MSS C-A 261, Bancroft Library, University of California, Berkeley); Alcade’s Docket 1849-1850, Placer County, Old Dry Diggins and Vicinity (ms. BANC MSS C-G 223, Bancroft Library, University of California, Berkeley); Justices Docket – T H Rolfe JP. Sutter County, California (1850) (MSS C-A 217 FILM, Bancroft Library, University of California, Berkeley); Justice Courts – Abstract of Judgment 1855-1917 (Bin 395, 2154.4.3.1, Placer County Archives, Auburn, CA); Justice Court, Bridgeport Township, Nevada County, 1862-1863 (Searls Historical Library, Nevada City, CA).

188 recovery action was brought on a promissory note, the debt tended to be higher than the average debt for goods sold, or services performed on account. This suggests that if a creditor was intending to lend a large sum, or to sell an expensive product, the creditor preferred the security of a written instrument. The court records do not specify the exact nature of other debt recovery actions, but it is likely that these were actions for unpaid rent, work and labour done, and money due on account for goods sold and delivered.92

Just as important as the volume of debt recovery cases heard by the Nevada County courts was the attitude of litigants. Overwhelmingly, the commercial population of Nevada County understood and respected the commercial law. This gave the courts the character of being decidedly plaintiff friendly.

In the District Court between June 1856 and June 1857, there were at least 161 debt recovery cases, but it is likely that this figure was even higher. Of the 100 cases listed above in the ‘other cases’ category, 35 did not disclose a cause of action (Figure 6.4). This may have been because the case was dismissed without argument, or because it was heard by a jury and the cause of action not recorded. It is unlikely that all of these cases were related to debt recovery, but even if we assume that all of them were debt recovery cases, an astounding 169 out of 196 cases were decided in favour of the plaintiffs

(Figure 6.5). A similar story is told by the records of the Justice Courts. Out of the 92 cases brought before the court, 81 were decided in favour of the plaintiff (Figure 6.5). This suggests that spurious claims tended not to be prosecuted and that a creditor could be confident that if he or she had a legitimate claim, it would be enforced by the court.

92 See, for example, Henry Meredity v J L Blyth, Appeal to County Court (1857) (Searls Historical Library, Nevada City, California) (money due on account); Patrick Hobin v Isabella Waters, Appeal to Nevada County Court (1857) (Searls Historical Library, Nevada City, California) (work and labour done); J H Bostick v Z P Davis, District Court (1856) (Searls Historical Library, Nevada City, California) (balance on account for stock delivered and labour done); John Kinsey v H V Bicknell, District Court (1856) (Searls Historical Library, Nevada City, California) (work and labour done); Union Hill Co. v James Broaddus, District Court (1856) (Searls Historical Library, Nevada City, California) (lumber furnished and delivered); Borrell & Hanson v John Mather, District Court (1856) (Searls Historical Library, Nevada City, California) (wares and merchandise furnished and delivered); A Leibert v Louis Celaine, Appeal to County Court (1859) (Searls Historical Library, Nevada City, California) (work and labour done).

189 Figure 6.5: Verdicts in Debt Recovery Cases heard in Nevada County District Court, June 1856 – June 1857

Assessor Confession Consent Court Default Jury Total Debt 3 11 7 24 56 3 104 Plaintiff 3 11 7 24 56 3 104 Defendant ------Promissory Note 5 4 12 34 2 57 Plaintiff 5 4 12 34 2 57 Defendant ------Unknown 3 2 10 20 35 Plaintiff 3 - 1 - - 4 8 Defendant - - 1 10 - 16 27 Grand Total 11 15 9 46 90 25 196

Source: District Court Judgment Book, Doris Foley Historical Library, Nevada City, California

The high success rate of plaintiffs was mainly because the defendants themselves admitted liability.

In the District Court, 90 debt recovery cases were decided in favour of plaintiffs because the defendant did not mount a defence (by default), 9 were settled by agreement (by consent), and in 15 the defendant admitted liability (by confession). In only 42 per cent of cases did the defendant maintain a defence. In these cases, 46 were decided by a judge (by the court), 25 were decided after a jury trial (by jury) and 11 were determined by an independent third party who provided a report to the court (by assessor). The story was similar in the Justice Courts. In those courts, defendants did not defend the claim in 47 out of the 92 cases heard (Figure 6.6). This suggests that defendants understood that they were liable and that court proceedings were a mere formality prior to the payment of the debt. There was perhaps a small trend that where a debt was based on a promissory note, defendants were less likely to enter a defence. This is perhaps because where the debt was not recorded in writing, or evidenced only in an account book, there was marginally more scope to negotiate an agreeable outcome.

190 Figure 6.6: Verdicts in Debt Recovery Cases heard in Justice Courts (1850-1863)

Confession Consent Court Default Jury Total Debt 6 6 15 21 2 50 Defendant - - 3 -- 3 Plaintiff 6 1 12 21 2 42 Withdrawn - 5 - -- 5 Interest bearing note 4 2 10 26 - 42 Defendant - - 1 -- 1 Plaintiff 4 - 9 26 - 39 Withdrawn - 2 - -- 2 Grand Total 10 8 25 47 2 92

Source: Records of Justice Courts in Nevada County and Placer County

The success rate of plaintiffs was not just because defendants did not vigorously defend their claims.

Although the decisions of judges and juries were undoubtedly the product of the cases that they heard, the court records also reveal a bias towards upholding bargains and enforcing the contract. When a case came before a judge or jury for decision, cases were usually decided in favour of the plaintiff. Of the 71 cases decided in the District Court by a judge or jury, only 26 were decided in favour of the defendant (Figure 6.5). Whether consciously or unconsciously, judges and juries were participants in upholding and enforcing the law of contract and giving strength to the system of credit that underpinned much of Nevada County’s industrial and economic development in the first half of the

1860s.

Credit and the slowing boom

As early as 1850, Thomas Wells, a prominent banker, wrote to a partner that “the value of everything, depends on dust or gold” and that its supply was “inexhaustible”.93 The benefit of hindsight shows that he was correct in his observation about the importance of the precious metal, but did not appreciate the cyclical nature of the mining industry. As early as July 1850, it was noted that the onset of the dry season meant that “the hopes of many are blighted almost entirely – not only the miners but the traders having depended on the claims being rich”.94 Similarly, in February 1855 it was noted that “the weather continues to be very fine, but there is little more water for miners.

93 Armstrong and Denny, Financial California, p. 56. 94 Sacramento Transcript, 26 July 1850.

191 Enough gold is not taken out however, to have any visible effect in the money market. We have yet to find a man who is not broke”.95 The unrealistic perception that the supply of gold was inexhaustible put the long-term viability of banking operations at risk.

The golden boom in California began to slow by the close of 1853. The average miner’s earnings had fallen from $16 a day in 1849 to around $5 a day from 1852 onwards.96 As the economy slowed, the credit system in Nevada County became increasingly stressed. Miners were in debt to storekeepers, but no longer had the same level of income to repay those debts. Storekeepers and other businessmen were also indebted to fellow residents in and around Nevada City (including their employees), but also had debts in the large trading centres such as San Francisco. High interest rates and slowing demand strained their ability to repay their debts.

A window into the struggles of Nevada County’s commercial class is offered through the correspondence between Jonas Winchester and his wife. Winchester operated a timber mill in Grass

Valley. As the economy slowed, he battled to satisfy his creditors. In October 1853, Jonas

Winchester wrote to his wife that “[i]f no funds are sent on, I see no salvation for the Mill … I have done my best to gain time, and feel that the struggle cannot be much longer continued. I shall give up

– my faith is sorely tried – almost dead, in fact”.97 Two weeks later, Winchester again wrote to his wife and reported that he had received $3,300 from New York. He reported that when he returned to

Grass Valley he “looked cheerful and smiling, and as fast as the duns appeared, paid them off - thus in a week, squaring the accounts with a dozen of them – so that now there is not a soul that comes near me to ask for money, and I have several hundred dollars under my pillow!”98 He noted that “I have paid up Parker & Elder in full, and now owe no one in the village but Capt Crum”. By November

1853, Winchester was again in trouble. He wrote to his wife that “without a market for lumber, I cannot get funds to pay the hands, & other expenses: and the moment the mill stops, every man will

95 Nevada Journal, 16 February 1855. 96 Paul, “After the Gold Rush: San Francisco and Portland”, p. 2. 97 Letter of Jonas Winchester, 15 October 1853 (Jonas Winchester Collection, California State Library, Sacramento). 98 Letter of Jonas Winchester, 27 October 1853.

192 want his dues in full, which cannot be met”.99 By December, however, he reported that “all the hands are paid off except Dickson and Old Man Kinney – and all the village debts except a small balance to

Crum, which he is not impatient for”.100 Winchester was also in debt to bankers and dealers in

Sacramento and San Francisco. In December 1853, after a tax bill for $675 came in, Winchester negotiated with his lumber dealer to advance him $700, and was further negotiating with him to “put in $5,000 and be repaid out of the next summer’s sales of lumber giving him so much interest, or a share of profits”.101

Winchester’s story was a common one. In 1855, the Nevada Democrat referred to the “evils of the credit system” and the fact that Nevada County storekeepers owed significant sums to traders in San

Francisco. These stores could not pay their creditors because they themselves had extended similar lines of credit to miners. This “hollow system” pervaded all aspects of business and was described by one newspaper as “eminently dangerous” where the population is as unsettled as in California.102

This editorial proved to be almost prophetic. The credit system relied ultimately on confidence in the banks and the continued discovery of gold. By 1855, however, the growth of the mining industry was slowing. . The network of indebtedness came crashing down in February 1855 with the failure of

Page, Bacon & Co. In January 1855, the parent house of Page, Bacon & Co. in St Louis made bad loans to the Ohio and Mississippi Railroad and a partner was sent to San Francisco to raise as much gold as possible. While the partner was in San Francisco, the St Louis branch failed, but this news did not reach California immediately. In ignorance of this failure, around $2,000,000 of gold was recovered and shipped east. News of the suspension finally reached San Francisco on 17 February

1855, which sparked a panic in the streets of San Francisco and a ‘run’ on Page, Bacon and Co. On

22 February, the bank closed its doors.103 The closure of Page, Bacon & Co, by itself, may not have been catastrophic, but by 22 February it was clear that “a quiet run was being made on all the banks of

99 Letter of Jonas Winchester, 19 November 1853. 100 Letter of Jonas Winchester, 4 December 1853. 101 Letter of Jonas Winchester, 4 December 1853. 102 Nevada Democrat, 3 January 1855. 103 Armstrong and Denny, Financial California, p. 59.

193 San Francisco”.104 When Adams & Co did not open on 23 February, it “brought the community to a paroxysm of excitement and fear”.105 The failure of Adams & Co. was particularly significant, having been described in 1853 as “unquestionably the leading business house of the state, dealing with more people, furnishing more accommodation to commerce and industry, handling more money, and probably making more profit than any other establishment”.106

The bank failures created waves of panic in Nevada County. The Nevada Journal noted that any intelligence in relation to Adams & Co was of “intense interest to the community”, both because miners had money deposited with the company, and because of the important role that the express company played in the economic life of Nevada County.107 Thus, when Adams & Co suspended on the Friday morning, it produced a run on other Nevada County banks, including Wells, Fargo & Co.

The reason was that Adams & Co “had enjoyed the most unlimited confidence of this community, and their suspension created a general distrust”. The Nevada County office of Wells, Fargo & Co withstood the run until 2pm when it closed its doors. At Grass Valley, the excitement was so intense that 5 or 6 Cornishmen were arrested trying to break open the vaults of Adams & Co.108 Indeed, the bank of Williamson & Dawley was the only banking house in Nevada County to survive the crash.109

The Nevada Democrat succinctly observed that the problem was that “San Francisco merchants are in debt to the bankers; interior merchants are in debt to the San Francisco merchants; miners are in debt to the interior merchants; and the bankers have been doing business to a great extent, on deposits”.110

The bank failures and general loss of confidence in the credit system had significant social effects as the law was mobilised to unwind the network of indebtedness. Creditors called upon Nevada County merchants to pay their debts and, like a row of dominos, these merchants then called upon their customers. If a debtor could not pay his or her debts, a creditor could apply to the court for an order

104 Armstrong and Denny, Financial California, p. 62. 105 Armstrong and Denny, Financial California, p. 59. 106 Paul, “After the Gold Rush: San Francisco and Portland”, p. 8. 107 Nevada Journal, 2 March 1855. 108 Nevada Democrat, 7 March 1855. 109 Nevada Democrat, 23 February 1855. See also Grass Valley Telegraph, 20 March 1855. 110 Nevada Democrat, 23 February 1855.

194 of execution on the defendant debtor. If such an order was made, the Constable (in cases in the

Justice Courts) or the Sheriff (in cases in the District Court) seized the defendant’s property and sold it at auction in order to satisfy the debt. These sales were frequent and were advertised in nearly every issue of the local newspapers. They usually involved the sale of land. For example, a house on

Boulder Street owned by a man called McCoy was sold at a Constable’s sale to satisfy a debt of

$102.55 owed to J. Blattau and C. Kraft.111 On Broad Street, the house of I. W. Smith and Lydia

Smith was sold to satisfy a debt of $215 owed to Winslow Hall and Artemas Rogers.112 The debts were understandably larger in the District Court. Half of 8 mining claims on Badger Hill and water rights owned by William and Joseph Vandoren were sold by the Sheriff to satisfy a debt of

$5,464.26.113 Likewise, the Sheriff sold a lot on Broad Street owned by Charles H. Bain and John R.

Scranton to satisfy a debt of $1,089 owed to Albert Harvell.114 The majority of these advertisements appeared in the newspapers after 1855, suggesting that the banking crisis of 1855 sparked a reordering of the credit system. Between June 1856 and June 1857, the District Court ordered the sale of property in 51 cases.

If a debtor had no way of repaying their debts, they could apply to be declared insolvent and released from all of their debts. In order to be declared insolvent, the debtor had to file a schedule outlining all of his or her debts and all property, both land and personal property.115 Once an application was filed, the judge directed a notice to be published giving the creditors between 30 and 40 days to “show cause why the prayer of the alleged insolvent should not be granted”.116 Debtors received some limited protection in cases of insolvency. Although they were required to declare all of their property, a debtor was entitled to retain his or her homestead, as long as its value did not exceed $5,000.117 It is

111 Nevada Journal, 1 February 1856. 112 Nevada Journal, 15 January 1858. 113 Nevada Journal, 6 June 1856. 114 Nevada Journal, 6 February 1857. 115 Section 3, An Act for the relief of insolvent debtors and protection of creditors, Ch. 34, Laws of the State of California, 3rd session (1852). 116 Section 8, An Act for the relief of insolvent debtors and protection of creditors (1852). 117 An Act to exempt the homestead and other property from forced sale in certain cases, Ch. 31, Laws of the State of California, 2nd session (1851). See also section 6, An Act for the relief of insolvent debtors and protection of creditors (1852).

195 not clear how often debtors took advantage of this legislation. In only 1 of the 15 cases of insolvency did District Court Judge Searls specifically refer to the preservation of a debtor’s homestead. This suggests that as a practical matter, the legislation may have provided little protection. The system of credit may have facilitated and encouraged commerce, but it was short term in focus and based on the assumption that prosperity would continue at the same rate. The failure of the credit system had serious implications for debtors.

Doing business in partnership

Just as the commercial laws facilitated the development of the Nevada County economy, so too did corporate laws support the industry of mining. In the first years of the gold rush when mining was labour intensive, but required little capital, miners formed partnerships to work their claims. The emergence of quartz mining required a more significant capital investment and the corporation was a vehicle that encouraged this. The emergence of the corporation initially fuelled rampant speculation, but eventually became a stable method by which investment dollars were channelled into mining operations.

The most popular early form of association between miners was the partnership. Under the law of partnership, each partner was liable for all the debts or liabilities of the partnership and entitled to a share in all the profits. If the partnership incurred a debt, each miner in the partnership became personally liable for that debt. The corollary to this was that each member of the partnership could contract debts in the name of the partnership. A partner could not freely transfer his share of the partnership without the consent of the other partners.

Many of the emigrants who travelled to California arrived as members of partnerships formed to facilitate the travel to the mines. On 24 January 1849, it was reported that as many as 47 companies

(although the term ‘companies’ was used, they were really large partnerships), comprising 2,499 members, were ready to leave New York. A few days later, the New York Herald reported that

196 10,001 companies were ready to leave, or had already left, for the gold fields.118 This figure was probably significantly exaggerated (perhaps even plucked from the sky), but it nevertheless suggests that a large number of partnerships were formed to make the journey to California.119 Charles

Ferguson, an early resident of Nevada City, observed that these home partnerships never lasted for long. Many dissolved before the emigrants arrived, others rarely lasted more than 3 months after arriving.120

The nature of early mining encouraged the formation of partnerships because it was expedient for men to join together to work their claims more efficiently. On one hand, the legal ties of partnership regulated the relationship, but as Charles Shinn somewhat romantically notes, the bonds of partnership could be “almost as sacred as the marriage-bond”. Men who were partners in law, may also have been pardners in the sense of sharing a “brother-like tie”.121 It is tempting to dismiss this as reminiscences of a bygone era, but this close relationship was continually referred to in the writings of miners at the time. Miners often shared family and geographical ties in addition to their legal bond.

Charles Ferguson, for example, formed a partnership with three other miners from Ohio and they

“remained together as long as [they] were in California”.122 From a sample of 100 cabins in Grass

Valley and Nevada City in 1850, 20 of the cabins contained at least 2 relatives and 72 cabins contained at least 2 miners from the same state.123 The fact that the miners who lived and worked together tended to be related or come from the same region suggests that their partnership ties could be more than simply legal.

Not all partnerships necessarily had this ‘brother-like’ character. Perhaps these close partnerships were more likely in a domestic or living arrangement. Other partnerships were formed simply for commercial convenience. Ferguson recalled forming a company of 10 men to work ground in Gold

118 New York Herald, 24 January 1849; 29 January 1849, quoted in Maureen A. Jung, “Capitalism Comes to the Diggings: From Gold-Rush Adventure to Corporate Enterprise” in James J. Rawls and Richard J. Orsi eds., A Golden State: Mining and Economic Development in Gold Rush California (Berkeley: University of California Press, 1999), p. 55. See generally Reid, Law for the Elephant: Property and Social Behavior on the Overland Trail. 119 Jung, “Capitalism Comes to the Diggings: From Gold-Rush Adventure to Corporate Enterprise”, p. 56. 120 Ferguson, The Experiences of a Forty Niner During Thirty Four Years in Residence in California and Australia, p. 155. 121 Shinn, Mining Camps: A Study in American Frontier Government, p. 111. 122 Ferguson, The Experiences of a Forty Niner During Thirty Four Years in Residence in California and Australia, p. 156. 123 Mann, After the Gold Rush, p. 225.

197 Run, but could not recall their names. He noted that “one might be intimate with another for months and not know each other’s names”.124 This purely legal partnership likely characterised many relationships among merchants and storekeepers. The Nevada Journal frequently advised the population of the formation and dissolution of these partnerships.125 These advertisements illustrate one of the principal weaknesses of the partnership form. If one partner wished to leave the partnership, his share either needed to be ‘bought out’, or the partnership itself needed to be dissolved.

Many partnerships were dissolved because one partner wished to return back East, move mining camps, or enter into another business. In January 1857, for example, Hist, Russell & Co. requested all persons indebted to their partnership to settle their accounts as a partner wished to leave for the

East.126 Similarly, the store of Heilbron & Co. closed its doors in January 1853 because Mr Heilbron, who was the senior partner of the firm, wished to return to the Atlantic States.127 When a partnership dissolved, partners often published a warning in the local newspaper to protect against contracting unwarranted debts. For example, W. Dusuzeau advertised that he would “not be responsible for any debts contracted by the Ural Quartz Mining Company or for the firm W. Dusuzeau & Co.”128

The number of newspaper advertisements referring to partnerships being dissolved by “mutual consent” suggests that in many instances this occurred peacefully,129 but this was not always the case.

In 1856, when J. M. Ballard attempted to leave a partnership that was formed to construct a water ditch and sell the water, the partners asked the Justice Court to “correct mistakes and fraud in

124 Ferguson, The Experiences of a Forty Niner During Thirty Four Years in Residence in California and Australia, p. 172. 125 See, for example, the formation of partnership between A. B. Gregory and S. W. Boring to conduct a business on Main Street, Nevada Democrat, 26 October 1859; formation of partnership between M. I. Marsh, Birdseye and Palmer, Nevada Democrat, 7 July 1859; formation of a partnership between L. O. Palmer and S. R. Perry, Nevada Journal, 7 May 1858. As to dissolution, see the dissolution of the partnership between W. H. Taylor and A. E. Head, Nevada Journal, 8 February 1856; dissolution of the partnership as saddle and harness makers between H. W. Galvin and J. Griesel, Nevada Democrat, 8 April 1857; dissolution of the partnership of H. H. Flagg and C. Chandler in the hay and barley business, Nevada Journal, 10 July 1857; dissolution of the partnership of August Jungherr and Jacob Mann in the bakery business, Nevada Journal, 15 January 1858. 126 Nevada Journal, 16 January 1857. 127 Nevada Journal, 31 December 1852. See also the sale of Mr C. P. Flaugher’s interest in the Illinois Toll Bridge to his partner, Mr Cooper for the reason that Flaugher wished to return to his former home, Nevada Democrat, 20 October 1858. 128 Nevada Journal, 3 December 1852. 129 For example, the dissolution of the partnership of Brentano and Furth of North San Juan, Nevada Journal, 24 July 1857; the partnership between Julius Dreyfuss ad Osha Eastman, Nevada Democrat, 21 January 1859; partnership between George S. Pierce and A. B. Carley, Nevada Journal, 11 February 1859; partnership between George O. Kilbourne and William Kent, Nevada Democrat, 6 April 1859.

198 accounts between the parties”.130 There could also be disputes about the liability of each partner for debts incurred during the partnership. For example, in November 1856, three men, Melton, Butler and Stewart, were partners in a mining enterprise at San Juan. On 26 November, Melton and Butler entered into a contract with Thomas Bolton in which they agreed to pay $300 to Bolton for the construction of a flume. The issue was whether all partners were liable, or whether only Melton and

Butler were liable. Judge Johnson, the Justice of the Peace for Bridgeport Township found that a partnership did exist and that all partners were liable for the debt.131

As mining technology developed, miners formed larger partnerships because these new technologies required intensive labour, but did not require extensive capital. Each miner performed a particular role in the association and profits were split among the various partners.132 This form of association was often called a ‘joint stock company’. It is useful at this point to consider the nature of that phrase.

Its indiscriminate use has led to much confusion in the literature. From the fourteenth century, a joint stock company was an association of shareholders that was formed under the provisions of a government charter. Government charters varied from corporation to corporation, but they typically allowed the ‘company’ to be sued in its own name and its shareholders to freely transfer their shares.

Many charters also limited the liability of the company’s shareholders. The success of this form meant that enterprising lawyers attempted to achieve a similar corporate status without going to the trouble of obtaining a charter from the government. This was achieved by combining the law of partnership and the law of trusts. Partnership law grouped the members (called stockholders) together into a legal body, and the law of trusts allowed the stockholders to appoint trustees to manage the everyday affairs of the association on their behalf, allowed the stockholders to freely dispose of their shares in the association, and allowed the association to be sued in the name of the trustees.

Significantly, these associations suffered from the same disability as the simple partnership; each stockholder could be held liable for all the debts of the association. These unincorporated bodies were

130 J M Ballard v J B Couper et al, Case No. 57, County Court (Searls Historical Library, Nevada City, California). For similar difficulties with dissolving partnerships, see Rogers & Hamilton v W Copeland & Co, Case No. 203, District Court (Searls Historical Library, Nevada City, California). 131 Bolton v Melton et al, Case No. 32, County Court (Searls Historical Library, Nevada City, California). 132 Paul, California Gold, p. 60. For an example, see Ferguson, The Experiences of a Forty Niner During Thirty Four Years in Residence in California and Australia, p. 172.

199 often referred to as joint stock companies, but to avoid confusion, they are referred to in this thesis as joint stock associations, which reflects their legal basis in the law of partnership. The joint stock association was not a particularly effective method of attracting investment. This was because stockholders took a significant risk that they would be liable for all the debts of the joint stock association. If the only investment made by miners was their labour, then they could not lose anything other than their time, but when the business of mining required large amounts of capital in order to commence work, a different corporate form was required.

The emergence of mining companies

The discovery of quartz gold in Nevada County led to a rush to locate quartz claims during 1851. As has been discussed previously, quartz mining required significant investment. Luckily for Californian miners, specific legislation existed in California from as early as April 1850 that allowed entrepreneurs who carried out certain activities to form companies. These activities included the business of insurance, railroads, roads, telegraph, bridges and, importantly, mining.133 If a group of three or more miners wished to form a company, they were required to first provide the Nevada

County Clerk with a certified document stating the name of the company, its business, the amount of the capital stock of the company, the number of shares into which the capital stock was divided and the period of existence of the corporation (which was not to exceed 50 years).134 The stock, property and the concerns of these early companies were to be managed by between 3 and 9 trustees. These were elected annually, one of whom was appointed as President of the company.135

This company legislation enabled miners in Nevada County to access the capital necessary to engage in quartz mining.136 When a company was formed, members of the public could subscribe for shares

133 An Act concerning Corporations, Ch. 128, Laws of the State of California, 1st session (1850). 134 Section 122, An Act concerning Corporations (1850). 135 Sections 124, 126, An Act concerning Corporations (1850), For examples, see the meeting to elect three trustees to the board of the Bear River and Auburn Water Company, Nevada Journal, 1 January 1852; meeting of the Gold Hill Quartz Mining Company to elect officers for the ensuing year, Nevada Journal, 14 August 1852. 136 Margaret M. Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century” UCLA Law Review 51 (December 2003) 387 (p. 413).

200 in that company (called shareholders).137 Ownership of a share made the shareholder liable to pay to the company an amount equal to the value of the share.138 The entire amount was rarely paid up front.

It was common for the shareholder to pay a portion of the share value on subscription, and be bound to pay further amounts as ‘called’ upon by the trustees. This system encouraged investment because it allowed investors to invest in the company with a small initial payment. For example, if a prospective shareholder in 1852 wished to subscribe for a share of the Bunker Hill Quartz Mining Company, worth $200, the subscriber was required to pay $20 on application, $20 on 15 October 1852, $40 on

15 January 1853, 15 March 1853, 15 May 1853 and a final payment of $40 on 15 July 1853.139 Other times, shareholders simply subscribed for a particular amount, and were called upon to pay that amount from time to time by the company’s trustees. In January 1852, for example, the Green Castle

Quartz Mining Company levied an assessment on its stock of $15.50 per share, to be paid prior to the next meeting of the company.140

The liability of shareholders under the Californian companies legislation has been much misunderstood. It has been argued, for example, that this corporate form did not provide “ideal conditions under which to attract investors” for the reason that “those who invested in corporations were required to pay assessments levied by corporate management when additional funds were needed to keep the company afloat”.141 This misunderstands the nature of the corporate form.

Shareholders were only liable to pay assessments up to the amount that they subscribed. If the company wished to increase its capital beyond that originally contemplated, it could only do so by a majority vote of at least two thirds of the shareholders.142 However, even if the capital stock was increased, shareholders were under no obligation to purchase additional shares (although if they did not, the proportion of shares that they owned in the company would be diluted). Further, it has also been argued that limited liability for shareholders did not arrive in California until well into the 20th

137 See, for example, the offering of stock in the Bunker Hill Quartz Mining Company in 1851, described by Ferguson, The Experiences of a Forty Niner During Thirty Four Years in Residence in California and Australia, p. 177. 138 Sections 138, 143, An Act concerning Corporations (1850). 139 Nevada Journal, 24 September 1852. 140 Nevada Journal, 1 January 1852. See also Nevada Journal, 17 July 1852. 141 Jung, “Capitalism Comes to the Diggings: From Gold-Rush Adventure to Corporate Enterprise”, p. 62. 142 Section 141, An Act concerning Corporations (1850).

201 century.143 However, as we have seen, the 1850 legislation limited the liability of shareholders to the value of the shares for which they had subscribed.144 It is correct, however, that the trustees of the company did not have the same protection. If the debts of the company exceeded the subscribed capital of the company, the trustees were personally liable.145 Prudent trustees tended to issue further shares rather than descend into debt. For this reason, the shareholders of the Gold Hill Quartz Mining

Company met at Grass Valley on 13 March 1852 “to take into consideration the propriety of increasing the capital stock of said company to one million dollars for the purpose of increasing the works”.146 Likewise, the stockholders of the York Mining Company met to discuss increasing capital stock from $20,000 to $25,000.147

The downside of a system where shareholders could invest for a small amount, but be liable to pay greater amounts during the life of the company, was that shareholders might try to avoid paying their

‘calls’ if they became disillusioned with the prospects of the company, or they did not have the available cash. This meant that a company was usually not able to access all of the capital for which stockholders had subscribed. Thus, when the Nevada City Gold Mining Company levied an assessment of $2 on each share, it also warned that “for those shares with assessments outstanding, if not paid within 6 months from the date of the assessment” the stock would be “forfeited to the company”.148 The Bunker Hill Quartz Mining Company adopted a different approach. It published a list of 33 names and threatened that their stock would be “sold at public auction unless dues are paid”.149

The years between 1851 and 1853 saw increasing excitement about the prospect of quartz mining. In

1851, 17 mining corporations were formed in Nevada County and a further 16 corporations were

143 See, for example, Mark I Weinstein, “Share Price Changes and the Arrival of Limited Liability in California” The Journal of Legal Studies 32(1) (Jan 2003) 1-25. 144 Section 4, An Act concerning Corporations (1850). 145 Sections 14, 141, An Act concerning Corporations (1850). 146 Nevada Journal, 21 February 1852. See also a meeting of the members of the York Mining Company, Nevada Journal, 14 August 1852; meeting of the Bunker Hill Quartz Mining Company, Nevada Journal, 27 September 1851. 147 Nevada Journal, 14 August 1852. See also the increase in stock of the Nevada County and Sacramento Canal Company from $1,000,000 to $1,550,000, Nevada Journal, 2 February 1855. 148 Nevada Journal, 30 October 1851. See also the notice of the Deer Creek Mining Company, Nevada Journal, 1 January 1852. 149 Nevada Journal, 3 July 1852.

202 formed in 1852. By the end of 1852, Nevada County was home to over one third of California’s mining companies (Figure 6.7). The rush to invest was driven by promoters who spruiked quartz mining in local newspapers, Californian newspapers, and even in newspapers further afield. The

Nevada Journal reported in February 1851 that the stockholders of the Rock Bar Mining Company

“must eventually receive large dividends” although no dividends had yet been declared. Such was the demand for shares that that there were “no shares for sale in the company, at any price”.150 A year later that same paper noted that all of the quartz mills in Grass Valley were paying “handsome dividends”.151 Further afield, Jonas Winchester, who was connected with Horace Greeley, the New

York newspaperman, promoted the prospects of quartz mining to investors in the eastern states.152

These promoters could sometimes be quite unscrupulous. Luther M. Schaeffer noted that the rampant boosterism in regard to mining prospects was due, in part, to “unprincipled speculators” who “visited our locality to purchase quartz specimens, took them to other places, and by false representations, would sometimes succeed in selling mining lots”. Other individuals, Schaeffer recalled, sent

“specimens to the eastern cities, form companies, sell stock, pocket the proceeds of their iniquity” and that then “ended their connection with their reputed rich diggings”.153

150 Nevada Journal, 14 February 1851. 151 Nevada Journal, 7 February 1852. 152 Jung, “Capitalism Comes to the Diggings: From Gold-Rush Adventure to Corporate Enterprise”, p. 67. 153 Schaeffer, Sketches of travels in South America, Mexico and California, p. 173. See also pp. 122-124.

203 Figure 6.7: Formation of mining companies in Nevada County and California 1850-1859

1850 1851 1852 1853 1854 1855 1856 1857 1858 1859 Total Nevada County mining -1716112252450 corporations Total mining corporations 2 265324445669795029432 Total corporations 3 276441708081976449576

Source: Records of Incorporation ad Articles of Incorporation, 1850-1859, California State Archives, Sacramento as collated by Maureen A. Jung, “Capitalism Comes to the Diggings: From Gold-Rush Adventure to Corporate Enterprise”, p. 64

Most companies had capital stock well over $100,000,154 which meant that many millions of dollars were invested in Nevada County during 1851 and 1852. By October 1851, it was reported that 32 quartz mills were in operation, or being built, in Nevada County.155 These included mills constructed by the Gold Hill Company, Gold Tunnel Company, Wyoming Company, Kentucky Company, Empire

Company and the Bunker Hill Company.156 Similarly, in Grass Valley by February 1852, it was reported that “there are now in operation some fifteen or sixteen quartz mills of various capacities”.157

By 1852, the public had begun to question the promises of quartz mining promoters. Jonas

Winchester, when describing his operations at Grass Valley, acknowledged “the public distrust relative to quartz mining”.158 Similarly, the South Yuba Canal Company was not able to get adequate investment from the County, and was forced to expand its marketing operations across the State. In

154 Jung, “Capitalism Comes to the Diggings: From Gold-Rush Adventure to Corporate Enterprise”, p. 65. 155 Nevada Journal, 16 October 1851. 156 Nevada Journal, 23 October 1851. 157 Nevada Journal, 7 February 1852. 158 Nevada Journal, 24 July 1852.

204 desperation, the company even “dispatched an agent to England”.159 The slowing boom and decline in mining confidence was reflected in the sudden decrease in the number of companies formed. Only one new company was formed in 1853. This stagnation persisted through the decade, picking up only slightly by the late 1850s. The ambitious nature of projects, combined with high interest rates, proved fatal to many companies. Water companies, for example, frequently underestimated their costs and then borrowed to complete their projects. The high cost of borrowing money meant that it only took a small delay to bankrupt the original proprietors.160 In hindsight, the Nevada Journal reported that in the early days of quartz mining, many a company failed “from the excess and extravagance of its expenditures”.161

It was not until 1856 that confidence in the quartz mining industry began to return. The Nevada

Journal reported in February 1856 that the prospects of quartz mining had not been so good since “the grand bust-up in quartz operations in this section in 1851-52”.162 By April 1857, the Nevada

Democrat noted that quartz mining “in general has afforded a fair profit on the capital invested”.163

But this was not the rampant speculation of 1851 investors were more circumspect. In March 1856, for example, the surveyors Joseph and Henry Eudey published an advertisement for the purpose of

“acquainting Capitalists, and all parties connected with mining of the advisability for inspection by competent persons preparatory to the laying open of mines”.164 This suggests that investors required more information prior to subscribing for shares, and that this information was being gathered in an increasingly scientific way.165

The corporate form provided a great stimulus to the business of quartz mining. It helped entrepreneurial miners to access large sums of money and the general incorporation laws provided

159 Nevada Journal, 13 April 1857. See also Nevada Journal, 2 February 1855; 13 April 1855. 160 Paul, California Gold, p. 165. 161 Nevada Journal, 29 February 1856. 162 Nevada Journal, 29 February 1856. 163 Nevada Democrat, 1 April 1857. 164 Grass Valley Telegraph, 4 March 1856. 165 The national financial panic of 1857 did not impact substantially on the recovery of the mining industry. When news of the financial panic reached California, Wells Fargo suspended for three days until it could be shown that the bank was in good financial condition. Other banks published statements of their liabilities to allay public alarm. See Armstrong and Denny, Financial California, p. 48

205 miners with an efficient method of company formation that did not require a government charter. The corporations law, therefore, truly released the economic energy of quartz mining. William Novak argues that corporate law was an aspect of government regulation for the public welfare.166 This is true if we assume that the public welfare was supported by maximising investment regardless of the cost. However, the experience of the early 1850s suggests that these newly formed companies were not adequately regulated. Unscrupulous and overzealous promoters fuelled speculation that led to investment in worthless enterprises and the loss of significant investment capital. In this sense, just as the emergence of the corporate form may have been a triumph of regulation for the public welfare, rampant mining speculation with no basis in geological fact was partially a result of the failure of regulation.

Development of an economic hierarchy

The gold mining industry in Nevada County evolved significantly during the decade of the 1850s.

From an economic point of view, technological developments and the working out of placer deposits meant that the level playing field of the early years quickly gave way to an economic pyramid with the largest corporations at the top and the working miners at the bottom. The most visible casualty of this economic stratification was the individual miner who was no longer able to earn a living as a result of his own work and effort.167 Miners who owned the claims that they worked became rarer, and it was increasingly common for a miner to work for a wage. By as early as July 1852, for example, the Wyoming mill was employing 40 hands per day at an average of $7 each.168 This hierarchy is clearly seen in the property holdings of miners. By 1860, 96 per cent of Grass Valley miners and 94 per cent of Nevada City miners owned land worth less than $100. Only 2 per cent of

166 Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America, p. 110. 167 Daniel Cornford, “We all live more like brutes than humans: Labor and Capital in the Gold Rush” in James J. Rawls and Richard J. Orsi eds., A Golden State: Mining and Economic Development in Gold Rush California (Berkeley: University of California Press, 1999), p. 93. 168 Nevada Journal, 10 July 1852.

206 Grass Valley miners and 3 per cent of Nevada City miners owned land over $1,000. Money was concentrated in the hands of a few.169

In addition to the changing technology, the business of mining was increasingly consolidated. From the time of the boom of 1851 and 1852, fewer companies were formed in Nevada County (Figure

6.7), but this did not mean a decline in corporate control. Instead, this period saw the consolidation of assets in the hands of fewer companies. The Miners’ Ditch Company, for example, purchased a number of smaller water companies during the 1850s and merged with the Eureka Lake Company in

1860.170 Miners’ strikes during the 1850s reveal the increasing tension between individuals and the consolidating forces of capital. This was most apparent in relation to the access to water. As large companies began to control the main ditches and flumes around Nevada County, there emerged a division between the large corporate entities and the smaller miners who relied on the flow of water for their livelihood.

Daniel Cornford has suggested that prior to 1869 when the first union was formed, strikes in

California were sporadic. His explanation for this is that miners were isolated and could not “call on the support of the community”.171 Conford notes, however, that this is only a general observation about the scale and scope of industrial activity. He concedes that small strikes may have been reported in local newspapers that have not yet been documented by researchers of labour history.172

This is certainly the case in the recorded history of Nevada County. Local newspapers reported a significant number of miners’ strikes during the second half of the 1850s. The difference between these strikes and later industrial unrest, however, was that the participants in these early strikes were self-employed miners and not a wage-earning industrial class. These small miners were united in their cause by problems over the supply of materials (most often water) and not by their working conditions, or their wages. Here, the absence of a unifying industrial organisation was not significant

169 Mann, After the Gold Rush, pp. 230-231. 170 Report on the middle Yuba canal and Eureka Lake canal, Nevada County, California, by George Black, Civil Engineer (ms. xF858.C2 v.9:24, Bancroft Library, University of California, Berkeley). 171 Daniel Cornford, “We all live more like brutes than humans: Labor and Capital in the Gold Rush”, p. 96. 172 Daniel Cornford, “We all live more like brutes than humans: Labor and Capital in the Gold Rush”, p. 96.

207 because the communal nature of each mining district and the nature of local regulation provided

miners with the community and the mechanism by which to arrange strikes.

The first example of protest from Nevada County miners occurred in March 1855, when a meeting of

miners was held on Gold Hill at which they resolved to pay no more than 50 cents per inch of water.

The problem was that the owners of the ditch supplying Gold Hill refused to supply water for less

than $1 an inch. The result was that only two companies continued to work and “sixty or seventy”

miners lay idle.173 Later in 1855, the miners of Red Dog, due to falling production, concluded that

they must “conduct business on a more economical scale”.174 As a result, the miners held a meeting

and resolved not to pay more than 25 cents an inch for water. The owners of the ditch demanded 50

cents.175 Problems continued through the second half of the 1850s. In December 1856, a meeting was

held by the miners of North San Juan, Junction Bluff, Sweetlands, Birchville, Cherokee and Badger

Hill for the “purpose of taking some measures towards alleviating the pecuniary difficulties under

which they have been laboring for a long while past in consequence of the high prices asked for water

by the companies furnishing water to the various localities in the said districts”. The meeting resolved

not only to suspend the use of water, but also to “endeavour to dissuade all our fellow miners from

purchasing water” until water was sold at 25 cents per inch.176 By the time that the strike eventually

concluded, its effects “on the business of the town” had been “severely felt” and the operations of

merchants and traders were “almost entirely suspended”.177 In October 1859, the stockholders of the

Eureka Lakes Company met and determined that they should reduce the price of water to 16 cents per

inch. This was because “during the past season the water rates have been twenty-five cents an inch;

this was regarded as too high, and in some localities the miners have been on a ‘strike’ for months

past, claiming that they cannot pay such rates for water”.178

173 Nevada Democrat, 21 March 1855. See also Nevada Democrat, 4 April 1855 describing the Tuolumne Water Co. and that it reduced its price of water from $6 to $4 per day for a sluice head as a result of miners’ demands. 174 Nevada Democrat, 12 December 1855. 175 Nevada Journal, 7 March 1856. See also Grass Valley Telegraph, 4 March 1856. 176 Nevada Democrat, 10 December 1856. 177 Nevada Democrat, 4 February 1857. See also a meeting of miners at San Juan in January 1857 in relation to a strike, Nevada Democrat, 14 January 1857. 178 Nevada Democrat, 12 October 1859.

208 The increase in water prices was, in the minds of the miners, linked to the problem of monopoly.

Miners’ lamented “all the ditch monopolies in the county” and in relation to a series of ditches owned by George Kidd and James Whartenby, it was suggested that since their establishment of their monopoly “there has been no reduction” in the price of water and that Kidd and Whartenby “cared little for the interests of miners” because they “had control of all the water in the diggings”.179

Through these strikes, miners attempted to exert some degree of power in the fact of monopoly interests. Miners were concerned that “[t]he absolute control in the hands of a few men of all the water that could be brought into this and the upper region would make them millionaires and all others poor dependents”.180 Criticisms of monopolies were heard from the top levels of government to the streets of Nevada City. The legal response did not match this rhetoric. Although a system of leasing was frowned upon because it would lead to the creation of monopoly interests, the district mining laws achieved much the same outcome.

Law was central to commercial life in Nevada County. From its beginning, corporate and commercial laws facilitated commerce by allowing sophisticated networks of indebtedness to emerge, and encouraged investment by providing miners with a robust vehicle for investment. These laws were inherited from the Eastern States, but in contrast to the suggestion by Frederick Jackson Turner that each frontier saw a return to “primitive conditions”,181 the corporate and commercial laws were, from the start, equivalent in sophistication to the laws operating in the East. At the same time, the story of these laws reflects the themes of economic exploitation discussed by the New Western Historians.

The rhetoric of the corporate and commercial law reflected a Hurstian view of law and economic growth, but the reality was more in line with the views of Morton Horwitz; that the corporate and commercial law inevitably favoured the interests of the entrepreneurial elite. This reality was summarised neatly in a letter to the Nevada Democrat, which argued that “a hundred volumes might be written against monopolies, yet people possessed of the necessary capital would continue to enrich

179 Nevada Journal, 20 April 1855. 180 Nevada Journal, 13 April 1855. 181 Turner, “The Significance of the Frontier in American History”, p. 2.

209 themselves at the expense of those within their power”.182 The absence of laws favouring monopoly interests did not prevent the consolidation of the industry. Rather, the failure of legislators to adequately regulate monopoly interests allowed corporations to prosper at the expense of the autonomy of small miners.

182 Nevada Democrat, 3 January 1855.

210 CHAPTER 7

COMMERCIAL LAW IN GYMPIE

Commercial enterprises appeared in Gympie soon after the discovery of gold. Where miners went, so too did merchants. On 23 October 1867, as the first prospectors were rushing to the new gold field,

William Southerden published the following in the Maryborough Chronicle:

W. Southerden informs his friends trying their fortune at the diggings that he will open a

temporary store at the new field, where the necessities of life and the usual diggers’ outfits

will be kept for sale.1

Another Maryborough merchant, John Palmer, had a similar idea. In the first few weeks of the rush,

Palmer loaded a wagon with flour, sugar, tea and rum and set off for Gympie. Demand for his provisions was so high that he stopped several miles before arriving and made a temporary camp from where he sold provisions. Prices were arbitrary and very much subject to demand. Palmer’s early camp became a permanent settlement and evolved to become Palmer’s Nine Mile Hotel.2

Within a matter of months, Gympie had evolved from a mining camp to a genuine and important commercial town. In December 1867, the Government Road Inspector Samuel Bragg cleared a path from Commissioner King’s camp to Nash’s Gully. This track became Mary Street and even before the path was complete “far-sighted men were building bark shanties and shops under the shade of the trees which still lined and overhung it”.3 Those shops were “put up in uneven order, and in [as] picturesque [a] way as possible, one jutting halfway across the street, and another standing back in almost modest seclusion”.4 By the end of the year, Mary Street was a mile long, forty feet wide and lined with shops and stores5 (Figure 7.1)

1 Holthouse, Gympie Gold, p. 43. 2 Holthouse, Gympie Gold, p. 50. 3 Holthouse, Gympie Gold, p. 57. 4 Ivimey, The Gympie Mining Handbook, p. 14. 5 Holthouse, Gympie Gold, pp. 72-73.

211 Figure 7.1: Mary Street, Gympie in 1868

Source: Gympie Regional Council

In Gympie, as in Nevada County, the geographic and economic environment posed unique commercial challenges. In its early days, miners often arrived in Gympie with nothing in the hope that they would soon find their fortune in its mines. Even as Gympie matured, wealth was not transported to Gympie. Rather, wealth was created there and then transported out of it. Gympie depended on gold strikes to inject cash into its economy. In this economic environment, commercial laws defined the arena in which commerce took place. This commercial arena was one in which wealth was maximised, economic inefficiencies were minimised, and investment was encouraged.

Just as occurred on the other side of the Pacific, commercial laws smoothed the fluctuations in the economic cycle to foster productivity and growth. Investors, capitalists, miners, storekeepers, and other merchants relied on a rigid adherence to the principles of contract law to allow a system of credit to operate in a town that relied on gold strikes for any liquid capital. Storekeepers could only sell goods on credit to their customers if they were confident that the debt would be paid at a later date. Even if customers did dispute their legal obligations, storekeepers could be confident that the civil courts would enforce the bargain that they had reached. The decisions of the civil courts were

212 remarkably consistent and, in most cases, a court appearance was a mere formality prior to the payment of the debt.

Corporations law worked alongside the mining law in Gympie to allow the mining industry to transform from one based on individual enterprise to one dominated by large mining companies.

Throughout Gympie’s evolution as a gold mining town, the law of corporations allowed for and facilitated the consolidation of the mining industry. As larger amounts of capital were required to pursue more complex and expensive forms of mining, the corporate form was used to group large numbers of miners together, and combine significant tracts of gold bearing ground. By the end of the

1870s, miners no longer worked for themselves, or in small partnerships, but as part of a wage labour force that was employed by large mining companies. The corporate law may have facilitated economic growth, but the casualty of the commercial law in Gympie was the autonomy of the small miner.

The civil courts in Gympie

The civil courts in Queensland were organised in a metaphorical pyramid of civil justice. At the base of the pyramid was the Small Debts Court, in the middle was the District Court, and at the apex was the Supreme Court of Queensland. For residents in Gympie, the most important of these courts was the Small Debts Court and, to a lesser extent, the District Court. It was to these courts that citizens went to have their commercial disputes determined. These cases included actions for breach of contract, for goods sold and delivered, or for work and labour done. Although actions in tort for damages, such as libel and slander, could also be heard by these courts, they seldom were. Debt recovery actions dominated civil litigation.6

The Small Debts Court was unquestionably the busiest civil court in Gympie. Between 1868 and

1880 the court heard 1,948 cases. The Small Debts Court had jurisdiction to hear any case involving a claim of up to 30 pounds.7 Cases could be heard by any two or more justices of the peace,8 but if

6 This trend has also been noticed elsewhere. For a discussion of commerce in early New South Wales, see Bruce Kercher, “Commerce and the Development of Contract Law in Early New South Wales”. 7 Section 2, An Act to Consolidate and Amend the Laws relating to Small Debts Courts 1867 (Qld) 31 Vic No. 29.

213 the amount claimed was less than 5 pounds, or the parties otherwise agreed, the case could be heard before just one justice of the peace.9 At first, the Gold Commissioner presided over the Small Debts

Court, but the Police Magistrate, first appointed in Gympie on 23 July 1868, could also hear and decide cases in the Small Debts Court.10 As the town matured, the Police Magistrate increasingly assumed these civil judicial responsibilities. The first Police Magistrate was George Faircloth.11 He served for a little under a year before being appointed in June 1869 as Police Magistrate for

Maryborough. Faircloth was replaced by John O’Connell Bligh.12

Above the Small Debts Court in the Gympie judicial pyramid sat the District Court. The District

Court for the Northern Districts was a circuit court that sat in a number of regional centres. Gympie was added to the circuit in 1869 and the court was convened in Gympie by District Judge William H.

A. Hirst three times each year. The District Court did not hear anywhere near the volume of cases that were paraded through the Small Debts Court. Between 1869 and 1880, it heard only 261 cases and sat in Gympie for, on average, a little less than 5 days each year. Its busiest year was 1874 when it sat for a total of 9 days. In total, between 1869 and 1880 the Gympie District Court (sitting in its civil jurisdiction) was in session for a mere 56 days. The Court could also hear appeals from the

Small Debts Court, but only where the amount claimed exceeded 10 pounds. As a practical matter, the District Court heard few appeals. Only 27 per cent of cases heard by the Small Debts Court were capable of being appealed.13 The District Court records do not specify whether a case was being heard on appeal, but only 75 claims for between 10 and 30 pounds were heard in that Court between

1869 and 1880. On this basis, at most, the District Court could only have heard 75 appeal cases during these years, which was less than 5 per cent of cases heard by the Small Debts Court.

8 Section 4, An Act to Consolidate and Amend the Laws relating to Small Debts Courts 1867 (Qld). 9 Section 6, An Act to Consolidate and Amend the Laws relating to Small Debts Courts 1867 (Qld). 10 Section 5, An Act to Consolidate and Amend the Laws relating to Small Debts Courts 1867 (Qld). 11 Police Magistrate Faircloth was referred to in Gympie as ‘Judge Faircloth’, and this title is adopted when referring to Faircloth throughout this thesis. 12 Queensland Government Gazette, 1869, vol. 1, p. 762. 13 On the basis that in only 522 of the 1948 cases heard by the Small Debts Court did the plaintiff claim over 10 pounds.

214 At the pinnacle of Queensland’s civil courts was the Supreme Court. The Supreme Court had jurisdiction to hear all civil cases.14 A review of the available records suggests that the majority of the cases brought in the Supreme Court were brought by a Brisbane resident against a person, usually a storekeeper, who resided in Gympie. Compared to the Small Debts Court and the District Court, the

Supreme Court did not play a significant role in the everyday life of Gympie residents. The cases that were heard by these lesser courts, particularly the Small Debts Court, offer the clearest insight into the everyday commercial life of Gympie.

Commerce in Gympie

Commerce in Gympie was built on the back of mining. According to the 1871 census, 59 per cent of the male population aged over 15 were employed in the business of mining.15 By 1876, this figure had dropped slightly to 43 per cent.16 Commerce in Gympie, however, was not limited to mining.

Edward B. Kennedy observed that “it is astonishing with what rapidity the bakers, butchers, and storekeepers flock to the diggings and we found them not only supplying all the necessities of life, but also most of its luxuries”.17 Kennedy observed that the early town, which was then known as

Nashville, “looked larger than most of the coast towns, and certainly presented a most lively and animated appearance. Stretching along the side of a deep gully, it looked something like a foreign town on a great market day”.18 By 1869, it was estimated that there were already 630 merchants in and around Gympie.19

Women played an important role in this economic climate, both in relation to the home economy and certain areas of industry. According to the 1871 census, 80 per cent of the female population over the age of 15 were listed as being supported by the head of the household.20 This figure may under

14 An Act to Consolidate and Amend the Laws relating to the Supreme Court 1867 (Qld) 31 Vic No. 23. 15 Census of the Colony of Queensland (1871), Votes and Proceedings of the Queensland Parliament, Session of 1872, pp. 444-445. 16 Census of the Colony of Queensland (1876), Votes and Proceedings of the Queensland Parliament, Session of 1877, pp. 1039. 17 Kennedy, Four Years in Queensland, p. 213. 18 Kennedy, Four Years in Queensland, p. 209. 19 Statistics of Queensland (1869), Votes and Proceedings of the Queensland Parliament, Session of 1870, p. 262. 20 Census of the Colony of Queensland (1871), pp. 444-445.

215 represent the economic role of women. It may not account, for example, for the households that took in boarders, for whom women were usually responsible. Nevertheless, the census does record that

135 women had a ‘personal office’ (compared to only 62 men). In the census, a ‘personal office’ referred to businesses such as hotel keeping and the provision of lodging. In the 1876 census, 184 women were listed as having this occupation as opposed to only 58 men. Women also played an important role in the clothing industry by both making clothes and selling them in local stores. In the

1871 census, this comprised 32 women (compared to 44 men). These figures reversed in 1876 when

44 women were listed compared to 32 men. The general trend during the decade of the 1870s was for women to play a greater role in economic life. As the number of women in Gympie grew, the percentage of women who were listed as dependent decreased. In the 1876 census, 68 per cent of women were recorded as being dependent, 14 per cent worked from personal offices, and 8 per cent worked in agriculture.

Notwithstanding an increasingly diversified economy, all commercial participants relied on selling their provisions or services to a market of miners. A miner’s income in Gympie, as in Nevada

County, did not arrive in a steady stream; many miners lived from one gold strike until the next, either because gold could not be found, or because work could not be continued, either due to the weather, through a lack of capital, or the absence of appropriate gold crushing machinery. The Maryborough

Chronicle reported that “there is a danger of stores being rushed and plundered” because “many have arrived [in Gympie] without a shilling in their pockets and have done no good since their arrival”.21

Even established miners could run into difficulty. A period of rain, flood, or an unlucky digging, meant that a miner did not usually have the resources to buy provisions, or the machinery to continue with his work. If miners had no gold with which to purchase provisions, the storekeepers had no market for their goods.

In this challenging economic climate, the law of contract provided the bedrock on which a widespread system of credit was built. Gympie retailers, like those in Nevada County, sold goods on credit, either by accepting a written promise from the customer to pay a certain amount of money at a later date, or

21 Quoted in Holthouse, Gympie Gold, p. 58.

216 by establishing an account with the customer that would be settled at a later date. This system relied

on an implicit acceptance and recognition of each person’s legal rights and obligations, and a

willingness to be bound by them. Although the economic conditions in Gympie meant that merchants

relied on a system of credit, this system was also used throughout the Australian colonies, such as in

early New South Wales22 and Van Diemen’s Land.23 The difference was that in these colonies, the

credit system developed out of a scarcity of currency. In Gympie, the fluctuating nature of the local

economy demanded it.

The sale of goods on account was the usual method by which a storekeeper extended credit to his or

her customer. Storekeepers kept a record of the goods purchased by each customer and a tally of the

money owed to him or her. When the customer had money, he or she settled the account. One such

account was in the name of Nicholas Murphy, who in 1869 was indebted in for goods such as jam,

lobster, oil, tobacco, cigars, ale, stout, salt, tea, flour and tea.24 Some storekeepers required accounts

to be settled each month.25 Other accounts were allowed to accrue for a number of years. The

account of James McGrath with John Johnston extended from 1867 until November 1869.26 A good

example of the way in which goods were sold on account comes from a case involving Walsh & Co.,

one of the most prominent retailers in Gympie. In October 1870, two men, Warren and King entered

the store of Walsh & Co. to buy some corn and chaff. Michael Walsh, the proprietor, did not

personally know either Warren or King, but was familiar with their partner, a man called Couldrey.

Walsh considered Couldrey to be a “respectable man” and on this basis allowed Warren and King to

open an account at Walsh & Co.27 Walsh & Co was not the only firm to extend credit to miners.

Between 1868 and 1880, it was common to see advertisements in the Gympie Times placed by

22 Kercher, Debt, seduction & other disasters, p. 131. 23 Rosemary Lucadou-Wells, “Paying the Piper and Calling the Tune”: Spotlight on Debt Collection in Hobart Town, Van Diemen’s Land 1817 and Thereabouts” Macquarie Journal of Business Law 3 (2006) 153. 24 Patrick Lillis v Nicholas James Murphy (SRS5687, Writs (common law), 1869, Queensland State Archives, Brisbane). 25 See testimony of George Robert Fife, who stated that J W Young agreed to settle the accounts with his form on a monthly bases, Augustus Huesmann and George Robert Fife v J W Young (1870) (SRS5687, Writs (common law), Queensland State Archives, Brisbane). 26 John Johnston v James McGrath (1869) (SRS5687, Writs (common law), Queensland State Archives, Brisbane). See also Samuel Davis & Co v Frederick Hervey Wise (1876) (SRS5687, Writs (common law), Queensland State Archives, Brisbane); Augustus Huesmann and George Robert Fife v J W Young (1870) (SRS5687, Writs (common law), Queensland State Archives, Brisbane). 27 Gympie Times, 22 October 1870.

217 storekeepers requesting their customers to visit their store and settle their accounts.28 This usually

occurred if a storekeeper wished to conduct a stocktake, or if the store was changing hands. A Mr

Cavol, for example, requested in February 1874 that accounts be settled by 1 March so as to “enable

him to make his Annual Stock Balance”.29 If a customer did not pay his or her account, a storekeeper

might threaten legal action. In February 1874, for example, the Gympie Times reported that “all

outstanding accounts due Mrs Hartley must be settled at once or they will be sued for”.30 In that same

month, William Loague requested the settlement of all accounts “to prevent unpleasant

proceedings”.31 Similarly, in August of that year, all persons indebted to Arthur O’Keefe were

requested to pay “otherwise legal proceedings will be taken”.32

There was an element of risk associated with selling goods on account. In a town like Gympie that

had such a transitory population, a customer could leave the region without settling his or her debts.

In 1868, for example, one miner began a false rumour of the discovery of gold about 12 miles out of

Gympie. On the basis of this “discovery”, the miner was able to obtain “a quantity of stores” on

credit and then quickly left town before the fraud became known.33 Michael Walsh, in the example

given previously, was clearly aware of this risk because he only allowed Warren and King to open an

account on the basis that their partner Couldrey was a “respectable man”. We cannot know how

many customers left town without paying their debts, but the court records contain a number of

examples of urgent applications made because the defendant was preparing to leave the Colony.34 It

was not an insubstantial risk for storekeepers.

28 See, for example, the advertisement placed by W. Southerden who requested that all accounts be settled within the current month, Gympie Times, 12 September 1868. 29 Gympie Times, 25 February 1874. 30 Gympie Times, 25 February 1874. 31 Gympie Times, 1 February 1871. 32 Gympie Times, 12 August 1874. 33 Holthouse, Gympie Gold, p. 80. 34 See, for example, William Scott, John Muirhead Dawson, and Robert Stuart trading as Scott, Dawson and Stuart v Benjamin Bebarfield (1869) (SRS5687, Writs (common law), Queensland State Archives, Brisbane); Augustus Huesmann and George Robert Fife v J W Young (1870) (SRS5687, Writs (common law), Queensland State Archives, Brisbane); John Burns and James Burns trading as J & J Burns v Edward Shipley (1872) (SRS5687, Writs (common law), Queensland State Archives, Brisbane).

218 The importance of credit to the economy of the Gympie region is demonstrated by the number of the cases that were heard in the civil courts. Of a sample of 324 cases heard in the Small Debts Court between 1867 and 1880, over half (164 cases) were to recover debts for goods sold (Figure 7.2). The same story was played out in the District Court. Of the 261 cases that were commenced between

1869 and 1880, 102 cases were for goods sold (Figure 7.3). When a storekeeper did resort to legal action, he or she tended to prosecute a number of cases at the one time, which suggests that some storekeepers had a deadline for the settlement of customers’ accounts. If not settled by this deadline, the storekeeper might commence actions against all outstanding debtors. For example, in February

1874 Walsh & Co. brought proceedings in the Small Debts Court against John Dowling, William

Sargeant, E J O’Connor and William Raleigh respectively for the cost of goods sold to them, and proceedings in the District Court against Henry Pemberton and Michael Dillon. Similarly, in June

1875, Walsh & Co began proceedings in the District Court against 16 different defendants.

Figure 7.2: Sample of cases heard by the Small Debts Court from 1868-188035

No. Goods sold 164 Work done 37 Promissory 22 notes Rent 19 Breach of 14 contract Money lent 14 Services 14 rendered Calls on 14 shares Misc. 26 Total 324

Source: The Gympie Times, 1868-1880

35 This sample was gathered by reviewing the Nashville Times and the Gympie Times between 1868 and 1880. For each year, two months of issues were reviewed. This sample of 324 cases contains around one sixth of all cases heard by the Small Debts Court (the Small Debts Court heard 1948 cases between 1868 and 1880).

219 Figure 7.3: Civil cases heard by the Gympie District Court 1868-1880

No. Goods sold 102 Work done 15 Promissory 28 notes Rent 7 Breach of 7 contract Money lent 22 Services 8 rendered Calls on 32 shares Misc. 61 Total 282

Source: Statistics of Queensland, Journals of the Assembly, 1868-1880

Many of these debt recovery cases did not necessarily see the inside of a court room. Of the 16 separate claims in June 1875, 8 were settled. On 3 October 1870, of the 35 cases on the cause list, 20 were settled, withdrawn or struck out.36 On 2 February 1874, of the 27 cases on the cause list, 13 were settled out of court.37 Of the sample of 164 cases for goods sold in the Small Debts Court, the defendant did not appear in 28 cases, thereby accepting judgment against them. In 14 cases a judgment was obtained by consent between the parties. Presumably, this was because the defendant recognised that they were indebted and were not prepared to argue a lost cause in court. Even when cases were not settled out of court, or decided in the absence of the defendant, the result could usually be predicted. When cases were decided by the court, they were decided overwhelmingly in favour of creditors. Of the sample of 164 cases heard by the Small Debts Court, 145 were decided in favour of the plaintiff. As in Nevada County, the overwhelming number of plaintiff-friendly decisions suggests that judges were sympathetic to creditors, who were usually bankers or commercial men. This trend is similar to the way in which mining cases were decided. Decision makers tended to apply the law in such a way as was advantageous to the interests of the entrepreneurial class.

36 Gympie Times, 5 October 1870. 37 Gympie Times, 4 February 1874.

220 Another method by which goods and services could be bought or acquired was by way of promissory

note. As discussed in the previous chapter, a promissory note was a written ‘promise’ to pay money

at a future date. They were usually payable at a future date and commonly included an additional

payment of interest.38 For example, on 23 June 1868, John Hickey Stable executed the following:

“Six months after date I promise to pay Francis S. Humphrey Esq the sum of 10 pounds.”39 As in

Nevada County, promissory notes were ‘negotiable’. This meant that they could be transferred as a

type of currency until the debt fell due.40 In February 1874, for example, an advertisement was played

in the Gympie Times warning the public against accepting a promissory note dated January 9 1874,

drawn by George Tomas in favour of J. Finnigin, for the sum of 3 pounds and 14s.41 The Gympie

Times noted in March 1877 that “in the Australian colonies there is nothing more common … than to

hold over cheques for indefinite periods” and that “in country districts cheques sometimes pass from

hand to hand, like bank notes”.42

Actions on dishonoured promissory notes made up a smaller percentage of cases in the Petty Debts

Court. Of the sample of 324 cases, a little less than 7 per cent of cases were brought on account of a

dishonoured promissory note. A little over 10 per cent of cases heard by the District Court were

brought on dishonoured promissory notes (Figure 7.3). It is likely that the District Court heard

proportionately more cases because promissory notes tended to be used to secure a larger debt than a

storekeeper allowed to accrue on an account. This is confirmed by the fact that in the Small Debts

Court, actions for the cost of goods sold averaged around 7 pounds and 15 shillings, whereas actions

on dishonoured promissory noted averaged 8 pounds and 17 shillings. This difference was more

38 Kercher, “Commerce and the Development of Contract Law in Early New South Wales”, p. 288; Kercher, Debt, Seduction & Other Disasters, p. 131. 39 Francis Sutherland Humphrey v John Hickey Stable (1872) (SRS5687, Writs (common law), Queensland State Archives, Brisbane). See also William Scott, John Muirhead Dawson, and Robert Stuart trading as Scott, Dawson and Stuart v Benjamin Bebarfield (1869) (SRS5687, Writs (common law), Queensland State Archives, Brisbane); Australian Joint Stock Bank v Central Gold Mining Company (Limited) (1869) (SRS5687, Writs (common law), Queensland State Archives, Brisbane); Ernest Goetz v George Thrower (1873) (SRS5687, Writs (common law), Queensland State Archives, Brisbane). 40 An Act to Consolidate and Amend the laws relating to Bills of Exchange, Promissory Notes and Cheques 1867 (Qld) 31 Vic No. 15. See also, Kercher, “Commerce and the Development of Contract Law in Early New South Wales”, p. 272; Kercher, Debt, Seduction & Other Disasters, p. 132; Kercher, An Unruly Child, p. 52; Lucadou-Wells, “Paying the Piper and Calling the Tune”, p. 153. 41 Gympie Times, 21 February 1874. See also Gympie Times, 19 August 1874. 42 Gympie Times, 3 March 1877.

221 striking in the District Court. Actions for the cost of goods sold averaged 31 pounds and 8 shillings, whereas actions on promissory notes averaged 39 pounds and 14 shillings.

Like actions for debts for goods sold, actions brought on the basis of promissory notes were usually decided in favour of the plaintiffs. Of the sample of 22 cases heard in the Small Debts Court, 20 were decided in favour of the plaintiffs. This was similar across the Australian colonies. Kercher notes that in New South Wales between 1810 and 1814, plaintiffs lost only 6 per cent of claims brought on promissory notes.43 This is not surprising. The fact that the note recorded the agreement in writing meant that, other than fraud, very few defences were available. It was difficult for a defendant to deny his or her indebtedness when confronted by a slip of paper with his or her signature. Although the overwhelming number of cases brought for goods sold on account suggests that sale of goods on account was a more popular method of extending credit, it may be that cases on promissory notes are underrepresented in the records because these debts were more likely to be paid.

Debt recovery dominated the civil courts in Gympie between 1868 and 1880. In addition to actions for the cost of goods sold, or to enforce promissory notes, which made up approximately 57 per cent of cases heard by the Small Debts Court, actions for debts based on money loaned, money due for work done, or rent due comprised an additional 26 per cent of cases. The story is similar in the

District Court where these cases made up 64 per cent of cases (a total of 83 per cent of cases). The vast majority of claims heard by the civil courts were for small amounts. Between 1868 and 1880, over 70 per cent of the claims heard by the Small Debts Court were for less than 10 pounds (1426 claims). Many of these claims were for amounts significantly less than 10 pounds, evidenced by the fact that the average debt in these cases was a little over 4 pounds and 7 shillings. As the amount claimed increased, the number of cases heard by the court decreased. The Small Debts Court heard only 522 cases in which the plaintiff claimed over 10 pounds, and the District Court heard only 133 cases where the amount in dispute was more than 30 pounds.

43 Kercher, Debt, Seduction & Other Disasters, p. 138.

222 Unfortunately, the surviving court records do not list the number of decisions for or against individual plaintiffs. They do, however, record the total amount claimed by plaintiffs for each year, and the total amount that was actually awarded to plaintiffs each year by the courts. These statistics suggest that the courts tended to decide in favour of plaintiffs. On average, plaintiffs were awarded around 80 per cent of the total debt that they claimed. Plaintiffs who claimed smaller amounts were more likely to receive a positive judgment. Where the debt was less than 10 pounds, plaintiffs received 84 per cent of the amount claimed. Where the amount was between 10 and 30 pounds, the success rate for plaintiffs fell to 77 per cent. This suggests that the time and expense of court proceedings meant that when a small amount was claimed, a plaintiff would pursue the case only if he or she was confident of success. As the amount claimed increased, it is likely that plaintiffs pursued more marginal claims.

Nevertheless, these statistics suggest that, as a general rule, the courts were likely to give effect to bargains. As the plaintiffs were usually commercial participants, the courts supported the interests of business.

The civil court records also offer an insight into fluctuations in commercial activity. The earliest years were the court’s busiest. In 1868, the Small Debts Court heard 238 cases, which increased to

347 cases in 1869 (Figure 7.4). This was probably for three reasons: the number of people on the gold field in the early days meant that there would inevitably be a peak in litigation; the nomadic nature of miners meant that it was not difficult to leave town to dodge debts; and the fluctuating economy of a gold mining community meant that debts could not always be paid on time. As activity on the gold field slowed in the 1870s, the number of cases in the civil courts correspondingly declined to a low of

50 in 1873. In the second half of the 1870s, as Gympie saw new investment in the mining industry and prosperity returned to the gold fields, the Courts were once again busy. In 1874, the court heard almost triple the number of cases. Discounting another drop in cases in 1877, the number of civil cases was steady until 1879 when the number doubled again. This provides an interesting comparison with criminal prosecutions, which will be discussed in the following chapters. Put briefly, while the number of criminal prosecutions declined during the 1870s, the number of civil prosecutions

223 remained steady or climbed. This suggests that the civil courts continued to be a necessary cog in the commercial machinery and were central to the economic growth of the Gympie region.

Figure 7.4: Number of cases heard in Gympie’s civil courts

Small District Debts Court Court 1868 238 - 1869 347 19 1870 182 15 1871 109 4 1872 71 6 1873 50 6 1874 131 32 1875 125 57 1876 113 10 1877 49 14 1878 96 13 1879 224 7 1880 213 8 Total 1948 191

Source: Statistics of Queensland, Journals of the Legislative Council 1868-1880

The origin of the corporate form: the early partnership

In its early months, the business of gold mining at Gympie was based on the cooperation of small groups of miners. The first settlers in the Gympie region usually arrived in groups. These groups were formed in Brisbane, Maryborough, and other surrounding towns prior to the journey to the gold fields. These groups were also formed while on the road to the gold field between likeminded prospective miners. Even miners who arrived in Gympie alone partnered quickly with other miners.

As occurred elsewhere in Australia and California, these partnerships were formed with varying levels of formality and had various shapes and sizes. Some were formed simply for the journey to the gold fields. In others, the group members agreed to share such items such as food, basic provisions, and living quarters. In others, miners agreed to work with each other, to share tools, and even their claims.44

44 This was also the case in Victoria, Richard D. Morris, “The No-Liability Mining Company” in T.E. Cooke and C.W. Nobes eds., The Development of Accounting in an International Context (London: Routledge, 1997), p. 100.

224 These partnerships were recognised by the law. As in California, the law of partnership provided that if two or more persons went into business together with a common purpose, the property held by the partnership was held jointly between all partners, and the acts of one partner (in the course of the business of the partnership) were attributed to the partnership as a whole. If a partnership was dissolved, the assets of the partnership were divided according to any prior agreement, or otherwise distributed evenly between the partners.

The partnerships formed by storekeepers and merchants tended to be more formal arrangements.

These parties understood that the partnership was liable for the acts of each partner and that when dissolved, the profits of the partnership were to be split between the partners. The risk of one partner binding another party to a debt is illustrated by the previously discussed case of Walsh & Co. against

Couldrey. It will be recalled that Michael Walsh extended credit to Warren and King on the basis that they were in partnership with Couldrey. The result of the case reveals that Walsh was correct to be wary of Warren and King because they ultimately defaulted on payment. Walsh knew, however, that

Couldry could be asked to settle the account (because of his partnership with Warren and King).

Walsh therefore asked Couldrey to make the final payments on the account. When this was disputed, the court held that because the goods were purchased for the business of the partnership, all partners were liable for any debts incurred in purchasing those goods and Walsh was therefore able to extract payment from Couldrey. Other storekeepers were also aware of this rule, both as it applied to their customers, and to their own partnerships. Where a partnership was thought not to exist, or a partnership had been dissolved, persons (usually storekeepers) provided notice to the community in an attempt to protect themselves. For example, a Chinese shopkeeper, Waugh, advised in the Gympie

Times in July 1870 that “I will not be responsible for any debts contracted by Li Hing”.45 Similarly

Cornelius Connelly advised in October 1870 that he would not be “responsible for any debts contracted by John Moore”.46 When a partnership formally dissolved, notice of the dissolution was usually published widely. In April 1870, for example, Gympie residents were advised that “all persons indebted to the firm of Scott & Hamill, trading as Grocers and Wine and Spirit Merchants,

45 Gympie Times, 13 July 1870. 46 Gympie Times, 15 October 1870.

225 Gympie, will please pay their accounts to Mr William Scott, whose signature only will be a sufficient discharge of the same; and all persons having claims upon the said Firm, will please send in their accounts to Mr William Scott for payment who will carry on the business in the future”.47 Seven years later, Robert Laurie advertised that “all persons indebted to the late firm of Laurie & Holliman are respectfully requested to promptly pay the amount of their indebtedness to the undersigned (who continues the business) in order that the partnership accounts may at once be closed.48

While formal partnerships were usually uncontroversial, problems were more likely to occur when less formal partnerships were formed (sometimes unintentionally) between miners. The controversy was usually over the very existence of a partnership, and its implications for their profits and accounts. The editor of the Gympie Times complained in April 1870 that during the first rush to

Gympie, the prospective miners had “no knowledge of mining or the laws affecting it” and that, for some, the fact that they had “travelled and taken their meals together, whilst on the road” was considered to be evidence of partnership. In other cases, when miners agreed to go into business together as partners, the “principle of sharing equally was agreed to without difficulty, the parties having in general a very vague notion of the relative positions they would hold in the event of great success”. Difficulties did not usually arise while a claim was being worked by all partners. Rather, problems arose when one miner left “with a view to trying his or their fortunes in another claim”. The question became whether there was an official break in ‘mateship’, or whether the absent miner considered himself, or was considered by the other miners, still to be working in partnership. The editorial noted that in these circumstances, the “loose kind of mining partnership is held suspended over the head of the lucky digger, and he never knows when it may fall and injure him”.49

A celebrated example of this problem was the story of Charles Collin, Michael Canny and George

Curtis who formed a partnership to work a claim in Sailor’s Gully. The claim was acquired by Collin in 1867, but rather than work the claim himself, he entered into an agreement in December of that year with George Curtis and Michael Canny. Collin allowed Canny and Curtis to dig, and provided

47 Gympie Times, 24 April 1870. 48 Gympie Times, 3 February 1877. 49 Gympie Times, 17 April 1870.

226 them with the use of a pick, shovel and bucket. In return, it was agreed that Collin would receive one third of all the gold found on the claim. Canny and Curtis were instructed to sell Collin’s portion of the gold and send the proceeds to him by way of bank draft. With this agreement in place, Canny and

Curtis began to dig on 3 December. Canny provided 50 pounds of flour, a piece of calico for a tent, some tea and sugar, and a pick, but quickly tired of the work and, according to Curtis, worked for only a day and a half before becoming fed up and returning to Maryborough. Curtis continued to work the claim and sought additional help in the form of his nephew, Valentine Brigg, who joined him in

Sailor’s Gully in January 1868.

Curtis and Brigg had little luck until February 1868 when Curtis, while washing dirt at the end of the day, discovered a nugget that weighed over 900 ounces. The question was whether Canny was entitled to a share of the profits. If Canny was still in partnership with Curtis, Canny was entitled to one third of the profits. Otherwise, Curtis and Brigg could split their share of the profits. Canny argued that he had not abandoned the Sailor’s Gully claim and that Brigg had been employed in his place. He also claimed that he had contributed a tent, pick and provisions to the partnership. On the other hand, Curtis gave evidence that Canny was “sick and tired” of both the claim and of Curtis, and that he had “left both of them for good”. Curtis argued that he had not hired Briggs as a replacement for Canny, and Briggs also denied acting as the representative of Canny. The legal battle was contested all the way to the Full Court of the Supreme Court. In the end, the decision of Chief Justice

James Cockle turned on other issues, but from the arguments put to the court by counsel, Cockle’s reasoning rested on a determination that Canny and Curtis had originally been in partnership, but that it was dissolved when Canny left for Maryborough.50

The final result in the case of Canny and Curtis is less important than the illustration that it provides of the confusion surrounding the issue of partnership among miners. It was not just the Supreme

Court that determined these issues. When the Gympie Local Court first opened its doors in August

1868, its Chairman, Commissioner King, proposed that the Local Court should sit in its judicial

50 Spry v Curtis (1868) (SRS5720, Writs of prohibition files, 1864-1868, Queensland State Archives, Brisbane); See also Holthouse, Gympie Gold, pp. 83-85.

227 capacity twice a week “as there would be a great many small partnership questions to decide”.51

Between September 1868 until the end of December 1868, 76 cases heard by the Local Court were reported in the Gympie Times.

The test for partnership that was applied in these local court cases was whether the parties considered themselves to be ‘mates’ in the sense of a partnership.52 In November 1868 the Local Court decided the case of Keefer v Kennell. Kennell argued that there was no partnership between himself and

Keefer, but Keefer presented evidence that he had represented a share for Kennell from 18 April 1868 until 29 October of that year. A partnership was found to exist.53 Similarly, in April 1870 in the case of Cogan v Hunt, the Court heard evidence that Hunt considered Cogan to be his ‘mate’ prior to the claim becoming valuable and accordingly found that a partnership existed.54 On the other hand, in the case of Riley v Richards, Richards alleged that he and Riley were never ‘mates’, but that Riley had merely worked for him while he had been ill. Riley had been paid for his labour and allowed a share in his claim. The Court held that there was no partnership.55 In April 1870, the Local Court heard the case of Partridge v Conway Bros. The Court found that there was no partnership as there was “no satisfactory proof of a recognition by the defendants of the plaintiff as a mate” and the Court held that there was no partnership.56 The court’s verdicts depended very much on the nature of the evidence.

As the editor of the Gympie Times concluded, “the vague, indefinite, and unsubstantial nature of the majority of mining partnerships” was “productive of much ultimate litigation, personal bitterness of feeling, and waste of money.”57 The partnership was useful in the early months as miners worked claims that required little capital investment. It was a quick and efficient method by which miners could work claims in association. However, as mining became more expensive, some other corporate form was required.

51 Gympie Times, 15 August 1868. 52 The significance of the use of the term “mate” in legal proceedings is discussed in the following chapter. 53 Gympie Times, 21 November 1868. 54 Gympie Times, 17 April 1870. 55 Gympie Times, 20 February 1869. 56 Gympie Times, 9 April 1870; See also Gympie Times, 17 April 1870. 57 Gympie Times, 17 April 1870.

228 The corporation in Gympie

Just as in Nevada County, the capital requirements of quartz mining required a corporate form that was attractive to investors.58 Steam machinery, for example, cost between 700 and 1,800 pounds.59

At the end of 1869 it was estimated that the total value of machinery on the gold field was around

13,000 pounds. By 1872, the value of machinery on the gold field had almost tripled to 33,000 pounds. This figure continued to increase throughout the 1870s. The members of a small partnership could not provide the capital to purchase the machinery required to pursue deep mining. The solution was to draw capital from a larger pool of investors. As Ratcliffe Pring noted in 1871, “parties of associated miners contributing their funds for their mutual benefit, would be in a better position to undertake improved methods of mining, to make use of more perfect and economical appliances for the extraction of the gold, and to mine the ground to the best advantage.”60 The joint stock association, the origins of which have been discussed in previous chapters, was one method that was used in the Australian colonies to attract investment. However, the Queensland Companies Act of

1863 (Qld)61 prohibited partnerships of more than 20 persons, which effectively prohibited the use of the joint stock association in even medium sized mining projects. The solution was for miners to register a company under the Companies Act 1863 (Qld).

In order to register a company, a group of 7 or more miners had to draft and sign a Memorandum of

Association62 and lodge it with the Registrar of Joint Stock Companies, who was also the Registrar of the Supreme Court.63 In this Memorandum, the miners were required to state the name of the company, its registered office, the objects for which the company was established, the number of shares in the company and their value, and provide a list of the members of the company and the number of shares for which each member had subscribed.

58 Richard D. Morris, “The No-Liability Mining Company”, p. 100. 59 A. L. Lougheed, The first major share market boom in Queensland – Gympie (Brisbane: University of Queensland, Department of Economics, 1984), pp. 4-5. 60 Royal Commissioner’s Report, p. 577. 61 An act for the incorporation regulation and winding up of trading companies and other associations 1863 (Qld) 27 Vic No. 4. 62 Section V, Companies Act of 1863 (Qld). 63 Section XVI, Companies Act of 1863 (Qld).

229 The liability of shareholders could be limited either by shares or by guarantee. If a company’s liability was limited by guarantee, this meant that the shareholders agreed to contribute to the assets of the company up to a certain value.64 If a company was limited by shares, the liability of a shareholder was limited to the value of his or her share. For example, if a shareholder owned 10 shares worth in total 10 pounds, that shareholder’s liability was limited to 10 pounds. When the shares were taken up, the shareholder paid an initial subscription that was less than the value of the share. When the company required more capital, it would call on the shareholder to pay the amount that was left owing on the share. This shareholder was known as a ‘contributing’ shareholder, and the request by the company to pay an amount owing on the share was known as a ‘call’. It was a method of generating start-up capital so that exploration activities could take place, and providing for a continuing source of funds to make improvements, such as constructing a whim, or sinking a new shaft.

Limited liability companies were used in Gympie almost from its beginning as a gold field, but became more popular in the second half of the 1870s as the mining law provided a form of title that was more attractive to investors. In February 1868 a group of miners met to form a company to mine the Lady Mary Reef and purchase gold crushing machinery. A group of 40 shareholders met at the

Town Hall. At the meeting a Mr Barlee, a representative of the original holders of the Lady Mary

Reef, noted that 675 shares in the soon to be formed Lady Mary Gold Mining and Quartz Crushing

Company had already been taken up, representing 1,300 pounds worth of capital. If further funds were required, a further call of 1 pound would be made on each share. It was noted that the venture was attracting significant interest among shareholders. On the morning of the meeting an additional

50 shares had been taken up, which was on top of the 80 shares that had been taken up the previous day. Given this popularity, the shareholders agreed to sell a further 1,000 shares and leave the share list open for another 2 months.65 The story of the Lady Mary Company was typical of these early limited liability companies. So, too, was the “Pactolus” Alluvial Mining Company (Limited), which was formed “to thoroughly test the Gold-bearing capabilities of the Deep Lead, situated on the south

64 Schedule 2, Companies Act of 1863 (Qld). 65 Nashville Times, 15 February 1868. See also the letter written by Alex MacKenzie calling for the amalgamation of “a large number of claims and form a large company under the Limited Liabilities Act”, Nashville Times, 5 August 1868.

230 side of the Mary River”. The Company sought to raise 4,500 pounds from the sale of 3000 shares valued at 1 pound and 10 shillings each. These shares were offered on the basis of a 5 shilling deposit on application, a further 5 shillings per share on allotment, with the balance to be paid in calls. No call could exceed 5 shillings, and calls could not be more frequent than once a month.66 As the capital requirements of the mining industry increased, the number of shares offered also increased. When the

Caledonian and Lady Mary United Quartz Crushing Company was incorporated in September 1868, it offered only 50 shares at a cost of 50 pounds each. By 1872, companies like the South Smithfield

Gold Mining Company, incorporated in June 1872, routinely offered 10,000 shares to subscribers, usually at a cost of 1 pound per share.67 Some companies, like The Glanmire and Monkland Gold

Mining Company, offered up to 80,000 shares to subscribers.68

The prompt payment of calls by shareholders was vital to either expand mining operations, or to enable a company to continue work in the absence of payable gold. Calls on shares were usually published in the Gympie Times. For example, on 28 February 1874, a 6th call of 1 shilling was made on the shareholders of the Caledonian United Gold Mining Company, a 9th call of 9 pence was made on the shareholders of the North Smithfield Gold Mining Company, a 13th and 14th call of 1 pound each was made on the shareholders of the South Monkland Extended Gold Mining Company, and a

12th call of 1 shilling was made on the shareholders of the Dawn Mining Company.69 In May 1874, the directors of the Caledonian United Company circulated among their shareholders “a statement of

66 Gympie Times, 1 December 1868. For other examples, see the prospectus of the O’Connell Prospecting Mining Company (Limited), Gympie Times, 3 November 1868; Prospectus of the Victoria Quartz Crushing Company (Limited), Gympie Times, 12 December 1868. 67 In 1874, the South Smithfield Gold Mining Company issued a prospectus outlining the supplementary issue of 20,000 shares, valued at 1 pound each. Each share would initially cost 15 shillings, with the remainder to be called up in sums that could not exceed 6 pence per month, Gympie Times, 27 August 1874. The resolution to issue the prospectus was passed at a meeting of the shareholders of the South Smithfield Gold Mining Company that was described in Gympie Times, 4 February 1874. 68 Statistics of Queensland (1872), Votes and Proceedings of the Queensland Parliament, Session of 1874, p. 296. 69 Gympie Times, 28 February 1874. See also the 24th call of one pound on the shareholders of the One Mile Reef Co- operative Company, Gympie Times, 6 May 1871; first call made on shareholders of Smithfield Extended Gold Mining Company, Gympie Times 25 February 1874; 7th call of 20 shillings made on shareholders of the Central Smithfield Gold Mining Company, 12 August 1874; call of 15 shillings made on shareholders of the South New Zealand Gold Mining Company, 12 August 1874; 7th call of 2 pounds made on the shareholders of the South Monkland Extended Gold Mining Company, 19 August 1874; 5th call of 1 penny made on shareholders of the Junction Gold Mining Company 11 February 1874; 7th call of 9 shillings made on the shareholders of the South NZ Gold Mining Company 11 February 1874; 14th call of 1 shilling made on the shareholders of the Glenmire and Columbia Gold Mining Company Limited, 11 February 1874; 9th call of 1 shilling on the shareholders of the 2 & 3 South Monkland Company (Limited, Gympie Times, 24 July 1875.

231 the present position of the company’s mine with the object of inducing them to promptly pay up their calls in order that the work of developing their property may once again be resumed”.70

Shareholders were not always diligent in paying their calls. At a meeting of the Smithfield Extended

Company the auditor’s report referred to “calls written off asserted to be paid, but for which there was no evidence”. The directors at the meeting also “impressed upon the shareholders the importance of paying promptly all future calls”. It was noted that there were 1,600 forfeited shares in the hands of the directors, which suggests that many shareholders neglected to pay their calls.71 Similarly, at a meeting of the 2 and 3 South Monkland Company, it was observed that only 100 pounds of outstanding calls had been collected, and that a further 160 pounds remained outstanding and due by

“doubtful persons”.72 This is partly explained by the fact that some shareholders were reluctant to pay further money to a company when they had not seen any return on their initial investment. One miner, writing in January 1870, described his experience at buying shares in a Gympie mining company: “I tried my hand at the Nor’ Nor’ West Caledonian Mining Company, and got 100 shares allotted me, and my word! didn’t the directors dun me rather till I paid up all my calls? They did the same too in the Sold and Worry Quartz Mining Company – so I began to see the folly of getting shares allotted”.73 It was also difficult to call on shareholders to contribute who did not live in

Gympie. In a letter to the Gympie Times, one miner complained that “there are a great deal of Sydney men shareholders in Gympie companies, who can shirk their calls, owing to the fact of their being out of the jurisdiction”.74 Similarly, in November 1874, at a general meeting of the One Mile Gold

Mining Company, it was noted that “the position of the Company was not encouraging in consequence of the difficulty of getting in the class, there being a large number of absent

70 Gympie Times, 16 May 1874. 71 Gympie Times, 22 August 1874. See also Gympie Times, 8 August 1874 where the directors of the Glenmire Leasehold Company noted outstanding calls of 30 pounds. 72 Gympie Times, 4 November 1874. 73 Gympie Times, 29 January 1870; 25 February 1874. 74 Gympie Times, 11 February 1874.

232 shareholders”. It was noted that around 12,000 or 13,000 of the 15,000 shares were not contributing.75

Although shareholders had a legal obligation to pay calls, recovering unpaid calls through legal action was not always an option pursued by companies. A prominent Gympie lawyer, Horace Tozer, advised the directors of the 2 and 3 South Monkland Company in November 1874 that legal action should be pursued only when “absolutely necessary”. Suing for calls “injured the company’s prospects and created doubts”.76 This was confirmed in the Gympie Times in February 1874, where it was noted that “any attempt on the part of Gympie directors to carry matters with a high hand, and enforce the payment of the outstanding calls by process of law would be futile”. Not only were contributing shareholders likely to be unable to pay, but they could readily adopt “methods of resistance” that would “exhaust the remaining stock of directorial patience”.77 This is reflected in the number of cases for unpaid calls that were pursued in the civil courts. Only around 5 per cent of cases before the Petty Debts Court were brought to claim unpaid calls (Figure 7.2) and only 32 of the 279 cases in the District Court (11.5 per cent) were for unpaid calls (Figure 7.3). The slightly higher percentage of cases heard by the District Court is presumably because a claim for unpaid calls was more likely to be made when the amount outstanding was significant. In the District Court, for example, the average amount for unpaid calls claimed was over 36 pounds.

As in Nevada County, many of the early company formations were mining ventures.78 By the middle of the 1870s, it was clear that the vast majority of companies incorporated in Queensland were to conduct mining, and a significant number of these were based in Gympie. In May 1872, the Secretary for Public Works and Mines reported that “another phase of mining enterprise which has prevailed of late is the formation of mining companies”. The Secretary noted that “during the past month a large amount of capital has been introduced, which has given a new and, I think, permanent impetus to the

75 Gympie Times, 4 November 1874; 29 January 1870. 76 Gympie Times, 4 November 1874. 77 Gympie Times, 4 February 1874. 78 Rob McQueen, “Limited Liability Company Legislation – The Australian Experience” Australian Corporate Law Journal 1(1) (1991) 22 (p. 26).

233 general industry and prosperity of the field”.79 Of the 68 companies incorporated in 1872, 60 were incorporated for the purpose of mining. Of these 60 companies, 14 were registered in Gympie.80

Together, these 14 companies issued 352,760 shares, raising 144,208 pounds in capital, with the scope for a further 205,052 pounds available to be called upon.81 The following year, a further 16 companies were registered, issuing 398,000 shares raising 43,200 pounds in capital, with a further

343,800 to be called.82 This figure rose again in 1874 when 22 companies were registered, comprising 499,000 shares and 365,340 pounds worth of subscribed capital, with a further 166,660 pounds available to be called.83 The uncertain nature of the mining industry meant that not all companies were successful. Between 1872 and 1874, 52 companies were registered, issuing a total of

1,249,760 shares. By 1875, only 21 limited liability companies remained comprising 447,100 shares.84 Notwithstanding a robust corporate form, investment in speculative mining remained perilous.

Confidence in the prospects of quartz mining in the Gympie region led to a strong appetite for investment in quartz mining companies. In these early days, it was suggested that all that was necessary “to get up a mining company” was for “the promoters or parties interested to take around a large lump of quartz … show it to a few individuals and ask their consent to call a meeting for the purpose of considering the desirability of forming themselves into a company.”85 When the Lady

Mary Mining and Quartz Crushing Company was floated in February 1868, the Secretary of the company noted that there had been a “run on the shares”.86 By July 1868, the market for shares was considered to be “very active”87 and the Nashville Times reported that “an outbreak of mining speculation has taken place during the last two or three weeks.”88 A number of stock broking

79 Gympie Times, 5 June 1872. 80 Statistics of Queensland (1872), Votes and Proceedings of the Queensland Parliament, Session of 1874, p. 296. 81 Statistics of Queensland (1872), Votes and Proceedings of the Queensland Parliament, Session of 1874, p. 318. 82 Statistics of Queensland (1873), Votes and Proceedings of the Queensland Parliament, Session of 1875, p. 343. 83 Statistics of Queensland (1874), Votes and Proceedings of the Queensland Parliament, Session of 1876,, p. 686. 84 Gympie Times, 20 December 1876. 85 Nashville Times, 22 August 1868. 86 Nashville Times, 15 February 1868. 87 Nashville Times, 11 July 1868. 88 Nashville Times, 29 July 1868.

234 businesses had even been established in Gympie by October 1868. The edition of the Gympie Times

published on 15 October, advertisements for: Robert Kellett, Stock and Sharebroker; Arthur Martin,

Sharebroker; Fraser & Buckland, Sharebrokers, auctioneers and general commission agents; B.

Hyman; G. T. C. Lang, G. C. Craig, Sharebroker and mining agent; and E. F. O’Regan, Sharebroker

filled the front page.89

Investor confidence began to disappear by as early as 1869 as investors began to recognise

overconfident predictions of future wealth as well as “many other statements equally without

foundation” in the prospectuses of future companies.90 An example of this advertising puffery is the

prospectus of the O’Connell Prospecting Mining Company (Limited), which claimed that “there is

every possibility of this reef continuing for many years to come” and that “the company’s ground will

rank with the first upon Gympie.”91 Similarly, the prospectus of the “Pactolus” Alluvial Mining

Company (Limited) proclaimed that its claim was “precisely similar” to the rich claims found in

Ballarat.92 Even more brazenly, the prospectus of the Victoria and Golden Currie Mining Company

(Limited) incorrectly claimed that the company held claims 2, 3, 4, 5, 6 and 7 South Victoria and

prospecting claims 1, 2 and 3 South Golden Currie.93 Only when the real claimholders complained

was it conceded that the company did not hold title to all of the claims. Promoters of companies were

accused of selling their shares as soon as the companies were formed, thereby making a quick profit.94

This climate, conducive to “swindles”,95 meant that by 1869 “people in Brisbane and elsewhere” had

“buttoned up their pockets”. The Gympie Times noted that “confidence has departed” and would not

89 Nashville Times, 15 October 1868. 90 Gympie Times, 2 March 1872. Exaggeration was so common that when the Smithfield Extended Quartz Company released its prospectus, the editor of Gympie Times was moved to note that “there is none of that ‘puffing’ that one usually sees in similar announcements”, Gympie Times, 20 August 1871. 91 Gympie Times, 3 November 1868. 92 Gympie Times, 1 December 1868. 93 Nashville Times, 26 August 1868. 94 Gympie Times, 7 September 1872; see also Gympie Times, 11 February 1874, 1 January 1875; Nashville Times, 22 August 1868, 26 August 1868. 95 Nashville Times, 22 August 1868.

235 return until mining companies were revealed to be “sound ventures” with “a fair prospect of a dividend”.96

Lack of investor confidence persisted through the early 1870s. In September 1872, Gympie was said to be in a state of depression as a result of the absence of early dividends and because “some companies floated for good round sums are not what they represented to be.” In addition, by 1872, the Gympie Local Court was in disarray and it was generally felt that Queensland needed a new mining law. There was simply no market for investment in new mining companies. The Gympie

Times observed that “at present it would be difficult to float anything in the shape of a new company, and only stock in a few of the dividend-paying mines sustains its value.”97 Even in 1874, statements continued to be made that “given the depressed state of mining affairs, strong inducements must be offered” to encourage the public to take up shares.98

Confidence returned in the second half of the 1870s as companies began to report profits, and new mining laws were enacted. An editorial referred to “numerous signs of refreshed confidence” in the industry.99 In November 1874, for example, of the 1,230 unallocated shares in the Gympie Quartz

Crushing Company, 558 were applied for, with the remainder to be offered to parties who took up the first issue.100 In August 1874 the directors of the No. 1 South New Zealand Company told their shareholders that “your patience and perseverance will be amply rewarded”.101 This was also true of the Aurelia Company, which declared a dividend of 2 pence per share in August 1874.102 By January

1875, the Caledonian United Company’s prospects were “much improved”.103 In that same month, the New Zealand Prospectors Gold Mining Company, “by judicious and economical working”, was

96 Gympie Times, 15 May 1869. 97 Gympie Times, 25 September 1872. 98 Gympie Times, 4 February 1874. 99 Gympie Times, 1 January 1875. 100 Gympie Times, 7 November 1874. 101 Gympie Times, 5 August 1874. 102 Gympie Times, 8 August 1874. 103 Gympie Times, 23 January 1875.

236 able to pay “large dividends … although the stone is poor”.104 By the middle of 1874, prospects for

Gympie mining companies were improving.

The popularity of limited liability companies to pursue mining ventures led to the passage of the

Mining Companies Act 1875 (Qld).105 This legislation provided that a company formed for gold mining purposes could be registered with the Registrar of the District Court. It was no longer necessary to register the company with the Registrar of Joint Stock Companies in Brisbane. More importantly, however, the Mining Companies Act 1875 (Qld) introduced the ‘no liability’ company into Queensland. The main difference between the ‘no liability’ company and the ‘limited liability’ company was that the acceptance by a shareholder of a share did not oblige that shareholder to contribute to the debts or liabilities of the company.106 However, if a company did make a call upon the shares, and that call was not paid, then the shareholder was not entitled to a dividend upon that share. Further, if the call was not paid within 14 days, the share could be forfeited and sold at public auction.107

The ‘limited liability’ and ‘no liability’ company legislation provided robust corporate forms that attracted investment. Increasing confidence in the middle of the 1870s as a result of improved mining prospects and a mining law that was more attractive to investors meant that Gympie attracted significant capital by 1880. A total of 2,029,939 pounds was invested in Gympie companies between

1876 and 1880. By 1876, the gold field had 17 crushing machines, 110 stamp heads, and a total value of machinery of 49,410 pounds. By 1880, there were 32 crushing machines and 73,000 pounds worth of machinery on the gold field.108 Clearly then, the corporate law facilitated investment in Gympie’s quartz mining industry. As in Nevada County, the failure to regulate early mining companies led to

104 Gympie Times, 30 January 1875. 105 An Act to Amend the Law relating to the Incorporation and Winding up of Gold Mining Companies and to amend “The Companies Act 1863” so far as it relates to such Companies 1875 (Qld) 30 Vic No. 9. 106 Section 7, Mining Companies Act of 1875. 107 Section 8, Mining Companies Act of 1875. 108 Statistics of Queensland (1876), Votes and Proceedings of the Queensland Parliament, Session of 1877, p. 168; Statistics of Queensland (1877), Votes and Proceedings of the Queensland Parliament, Session of 1879, p. 268; Statistics of Queensland (1878), Votes and Proceedings of the Queensland Parliament, Session of 1880, p. 799; Statistics of Queensland (1879), Votes and Proceedings of the Queensland Parliament, Session of 1880, p. 226; Statistics of Queensland (1880), Votes and Proceedings of the Queensland Parliament, Session of 1881, p. 808.

237 an early speculative boom followed by a crash. In this sense, although the corporate law stimulated economic growth, the failure of the law to regulate the corresponding boom slowed the productivity of the region until the middle of the 1870s.

Creation of an economic hierarchy

The consolidation of the mining industry was seen by the leading opinion makers in government and industry as advantageous for miners. Even the merger of large mining companies was considered by the town’s newspapers to be “equally to the interests of miners and capitalists”109 and “the only measure that can give stability to mining industry on this goldfield and ensure lasting prosperity to the working miner”.110 Comments like this disguised the true effect of consolidation. The casualty of consolidation was the miners’ autonomy; miners no longer worked claims for themselves, but instead worked as part of a mining labour force. Ratcliffe Pring recognised this, but considered it to be a positive thing. He believed that the consolidation of the industry would provide “unsuccessful miners

(a numerous class on every gold field) the prospect of steady and remunerative employment.”111

Indeed, he welcomed the introduction of large mining companies because they offered opportunities for “the employment of a large number of persons”112 and created a permanent “labouring population”.113

From an early time, mining companies contracted out mining work and employed a mining manager to supervise everyday operations. Whereas in 1867 and 1868, a miner dug alluvial gold and washed it himself, by January 1870 tenders were invited for raising quartz in No. 3 South New Monkland

Reef.114 In February 1871, tenders were invited to sink a shaft on No. 6 North Monkland, to sink a shaft on No. 2 North Smithfield, to construct a whim on the Great Extended St Patrick claim.115 In

109 Gympie Times, 24 July 1875. 110 Gympie Times, 21 April 1875. 111 Royal Commissioner’s Report, p. 576. 112 Royal Commissioner’s Report, p. 576 113 Royal Commissioner’s Report, p. 581 114 Gympie Times, 8 January 1870. 115 Gympie Times, 25 February 1871. See also invitation for tenders to: erect a culvert, Gympie Times 8 August 1871; to enlarge shaft, Gympie Times, 1 February 1871; construct a main shaft, Gympie Times, 7 February 1871; construct a whim, Gympie Times, 28 February 1871; tenders invited for the sinking of a shaft on No 1 South New Monkland 15 October 1870.

238 July 1875, the New Zealand Golden Crown Gold Mining Company invited tenders for the erection of a whim and poppet heads (large wooden head frames).116 When Ratcliffe Pring reviewed the industry in 1871, he observed that even at this early stage in the field’s evolution, “the working miner is dependent upon the capitalist.”117 Put another way, the Gympie gold field quickly lost the democratic quality championed in the mythology of the gold fields that every newcomer had the chance to find his fortune. The reality was that through the 1870s, miners were less likely to work their own claims, but worked increasingly as employees of a company. A working class of mining employees quickly emerged.

Some miners were able to retain an element of autonomy through the ‘tribute’ system, but even this was geared towards maximising the profit of the mining companies. Under the tribute system, a mining company allowed a group of miners to work its claim if it was paid a percentage of the profits.

Companies generally leased their claims on tribute during a period in which it was seeking to raise capital, or was waiting for another company in the area to strike gold. This system operated on a small scale in 1868 and 1869, but was formally recognised by April 1870. An article in the Gympie

Times noted that “the tribute system of mining is gaining ground in some districts and is found very efficient”.118 By the middle of the 1870s, there were numerous references in the Gympie Times to the method of working a claim on tribute. In February 1874, the directors of the Gympie Quartz Crushing

Company and a Mr A. Rosenow made an arrangement for the working of the company’s tailings.

Rosenow agreed to take the tailings for 3 years on ‘tribute’. If the tailings yielded more than 1 and a half ounces of gold per tonne, the Company would receive 5 per cent of gold, and 5 per cent for every additional half ounce.119 In May 1874, the directors of the 2 and 3 South Monkland Company agreed with a party of miners to work the Monkland Reef on tribute for 12 months. The miners were to pay

10 per cent of gross proceeds of all gold obtained to the Company and bound themselves to employ 6

116 Gympie Times, 17 July 1875. 117 Royal Commissioner’s Report, p. 581. 118 Gympie Times, 30 April 1870. 119 Gympie Times, 25 February 1874.

239 men, presumably to ensure that the claim was sufficiently represented.120 The tribute system was so popular by the end of 1874 that companies were actively advertising for tributors121 and incorporating express provisions in their Articles of Association to allow the company’s mines to be let on tribute at any time.122 Although the system did provide small miners with a degree of autonomy, its practical effect was that a company could be paid to have its claim worked for a short period of time when it would otherwise have been laying idle.123

The law of commerce was integral in the everyday life of Gympie citizens. Corporate and commercial laws allowed the Gympie region to prosper in the context of the unusual and fluctuating economic conditions that characterised its existence. Further, the law of corporations worked alongside the mining law to quickly transform the industry from one based on individual enterprise to one dominated by large mining companies. While commercial and corporate laws did promote economic growth, they did so in a way that allowed an economic hierarchy to develop. Commercial laws were enforced in favour of creditors and corporate laws allowed the mining industry to be dominated by large companies at the expense of smaller miners. By the end of the 1870s, the Gympie region had a sophisticated credit-based economy in which miners no longer worked for themselves, or in small partnerships, but as part of a wage labour force that was employed by the large mining companies.

120 Gympie Times, 16 May 1874. See also the Caledonian United Company who let a party of miners work the Lady Mary Reef on tribute for 18 months, tributors to return 10 per cent of proceeds, Gympie Times, 16 May 1874; Lady Mary Company which allowed George Lee to work the land on tribute for 5 years at 12.5%, 6 January 1875. 121 Gympie Times, 7 November 1874 where an advertisement was placed asking for 6-8 miners to work one of the Monkland shafts on tribute.; Gympie Times, 14 November 1874, requesting tenders for the working of the ground of the South Smithfield Gold Mining Company. See also the Glenmire Leasehold Company, which let ground on tribute of 7.5%, Gympie Times, 21 April 1875. 122 Gympie Times, 25 September 1872. 123 Gympie Times, 7 November 1874.

240 CHAPTER 8

COMMERCIAL LAW ACROSS THE PACIFIC

The commercial prosperity of both Nevada County and the Gympie region was built on the law of contract. The economic reality of gold mining on either side of the Pacific was that liquid capital was injected into each economy in unpredictable cycles that were determined by meteorological, geographic, and geological factors. In both regions, a system of credit helped to smooth these economic fluctuations. The commercial laws that underpinned these systems were strikingly similar.

This was a result of the shared common law heritage of each region, and the transfer of legal ideas and customs around the common law world, particularly in the form of transnational credit networks.

At the same time, the corporate laws of each region encouraged investment in their respective mining industries, allowing large and capital intensive projects to be pursued. Like the commercial laws, these corporate laws were remarkably similar and were connected by history and shared legal experience. However, while the corporate law was designed to promote economic growth, the failure to regulate mining corporations and those involved with their promotion led to rampant speculation, which ultimately slowed the growth of quartz mining in each region. In both regions, therefore, the combined effect of the commercial and corporate laws was to create sophisticated, credit-based, economies that allowed each region to prosper in the context of the particular requirements of the gold mining industry. At the same time, while these laws operated to release the ‘economic energy’ of each region, their application tended to favour the interests of larger mining companies at the expense of the individual miner.

Credit networks on either side of the Pacific

In both Nevada County and the Gympie region, commerce was conducted on credit. In each region, this pervasive network of indebtedness was almost identical. Just as merchants based in Brisbane or

Maryborough sold their goods to storekeepers in Gympie, so too did San Francisco merchants sell their wares on credit to storekeepers in and around Nevada County. Storekeepers in both gold fields allowed miners to purchase these goods on credit. Demonstrating the importance of the credit system

241 in each region was the fact that courts on either side of the Pacific were dominated by civil cases concerning the recovery of debts (Figure 8.1).

Figure 8.1: Comparison of debt recovery cases in Gympie and Nevada County

Nevada County Gympie Percentage of debt Percentage of debt recovery actions recovery actions Justice Court 88% Petty Debts Court 92% District Court 62% District Court 78%

It is, of course, dangerous to compare statistics across different legal jurisdictions where unrelated factors can influence the rate of prosecutions. In this case, however, the percentage of debt recovery actions heard by the civil courts of each region is so similar that a common trend can be seen clearly.

Figure 8.1 suggests that the percentage of debt recovery cases was almost identical in Nevada

County’s Justice Courts and Gympie’s Petty Debts Court (the lowest courts in each region). The ratio of debt recovery cases in the District Courts of each region diverge a little more, but it is likely that this was because a cause of action was not recorded in 15 per cent of the cases that were heard by the

District Court in Nevada County (thereby reducing the percentage of debt recovery actions recorded by as much as 15 per cent). Taking this into account, the records of the two District Courts also tell a similar story of the dominance of debt recovery actions.

Not only was the percentage of debt recovery actions heard in the courts across the Pacific remarkably similar, but the resolution of these cases also suggests a common trend between the regions. Debt recovery actions were decided overwhelmingly in favour of plaintiffs. In both regions, many of these actions were settled by the parties. When the actions were heard by a court, judges on either side of the Pacific were likely to decide in favour of plaintiffs. When the Gympie Small Debts Court heard a debt recovery case, it ruled in favour of the plaintiff in 84 per cent of cases.1 Similarly, the Justice

Courts of Nevada County usually decided in favour of the plaintiff in 85 per cent of cases.2

Unfortunately the equivalent statistics are not available for the Gympie District Court so it is impossible to make a direct comparison with the District Court in Nevada County (where judges

1 Based on a sample of 324 cases between 1868 and 1880 (see Figure 7.2 for an explanation of this sample). 2 Based on a sample of 92 cases between 1850 and 1863 (see Figures 6.4 and 6.5 for an explanation of this sample).

242 decided in favour of plaintiffs in 68 per cent of cases),3 but it is likely that the trend was also similar.

On the available evidence, therefore, it appears that judges in both regions were more likely to decide cases in favour of creditors, suggesting that the law as applied by the courts tended to favour the interests of capital.

Similar credit systems developed because commerce in both regions was inextricably linked to the mining industry. The first explorations into Gympie and Nevada County brought with them the first commerce. Caldwell’s store on Little Deer Creek was to Nevada City what Palmer’s Store was to

Gympie. Both regions hosted an assortment of storekeepers such as grocers, bakers and publicans, and a variety of professionals such as lawyers and doctors. Nevertheless, by the end of the first decade of each region’s existence, even as their economies were becoming more diversified, mining remained the dominant industry. In Nevada City in 1860, miners made up 57 per cent of the male population,4 and in the Gympie region in 1876, miners made up 43 per cent of the male population.5

Thus, commerce in both regions relied primarily on a market made up of miners to purchase goods and services. This, combined with the fact that miners rarely brought significant sums of money with them when they arrived in each region, meant that the prosperity of both regions depended on gold.

But, as we have seen, the availability of gold was not constant. In both regions this was a result of similar geology and equivalent disruptive environmental factors such as drought, flood and fire.

It is not surprising that similar economic conditions led to the development of similar credit networks.

Indeed, this is confirmed by examples outside the industry of mining. In the southern cotton regions of the United States, Lewis Atherton has suggested that storekeepers allowed between two thirds and three quarters of all merchandise to be obtained on credit. These storekeepers then obtained much of their stock from merchants in Eastern cities.6 The reason for this similarity was that cotton farming, like gold mining, was a seasonal occupation that produced fluctuations in income, particularly in the

3 Based on a sample of 196 cases between 1857 and 1868 (see Figure 6.6 for an explanation of this sample). 4 Based on the data provided in Mann, After the Gold Rush, pp. 224, 226. 5 Fifth Census of Queensland, 1876, Votes and Proceedings of the Queensland Parliament (1877), p. 1039. 6 Lewis E. Atherton, “The Problem of Credit Rating in the Ante-Bellum South” The Journal of Southern History 12(4) (November 1946) 534-546 (p. 534); see also Roger L. Ransom and Richard Sutch, “Debt Peonage in the Cotton South after the Civil War” The Journal of Economic History 32(3) (September 1972) 641-669.

243 time between planting and harvest. As in mining regions, this created periods during which the

farmer, like the miner, had to be sustained by finance.7

The reliance on credit in each region cannot be explained only by way of the organic growth from

similar economic conditions. Each region was a frontier outpost of a global network of credit.

International banking houses, such as the House of Baring and Rothschilds issued letters of credit that

allowed importers to buy goods from all over the world. The Baltimore agency of Brown, Shipley &

Co, for example, issued letters of credit to importers of coffee, sugar, hides, copper ore and guano

(South America), iron (England) and assorted dry goods (Europe).8 In December of 1852, it was

reported via San Francisco that the first express company between New York and the gold regions of

Australia was to be established by the house of Berford & Co. of New York for the purpose of

forwarding gold dust, parcels and freight.9 In 1853, the Argus praised the number of trans-oceanic

steamships in Australian ports and noted a “real commercial brotherhood among nations”.10

It would not have been possible for such similar economies to develop if the commercial law in each

region did not share important features. These similarities were a result of a shared common law

heritage and the transfer of legal ideas across the common law world. The law of contract in both

regions owed much to the influence of the English common law. The early contract cases heard by

the Queensland Supreme Court reveal a strong adherence to decided English cases. In California,

lawyers in argument before the Californian Supreme Court, including the future Supreme Court

Justice Stephen J. Field, referred to English texts, such as Chitty on Contract.11 In California, as in

Queensland, lawyers used English texts as reference books, and considered them to be persuasive

authority before the court. This is not to say that both regions did not develop their own forms of

7 For a discussion of the finance required by farmers, see Roger L. Ransom and Kerry Ann Odell, “Land and Credit: Some Historical Parallels between Mexico and the American South” Agricultural History 60(1) (Winter 1986) 4-31 (p. 9). 8 Edwin J. Perkins, “Antebellum Importers: The Role of Brown Bros & Co in Baltimore” The Business History Review 45(4) (Winter 1971) 421-451 (p. 429). See also Edwin J. Perkins, Financing Anglo-American Trade: The House of Brown, 1800- 1880 (Cambridge, MA: Harvard University Press, 1975). 9 The Courier, 11 December 1852. 10 Argus, 20 January 1852. 11 See submissions of Field and Townsend, Cavillaud v. Yale 3 Cal. 108 (April Term 1853); submissions of Burritt and Musson, Tyson v. Wells 2 Cal. 122 (January Term 1852 ); Submissions of Sutherland, Keller v. Ybarru 3 Cal. 147 (April Term 1853 ); Submissions of E. R. Carpentier and F. M. Haight, Phelan v. County of San Francisco 6 Cal. 531 (October Term 1856 ); C Cole, Myers v. South Feather River Water Co. 14 Cal. 268 (October Term 1859); Submissions of H W Haven, Hogan v. Titlow 14 Cal. 255 (October Term 1859).

244 jurisprudence. Bruce Kercher, for example, has suggested that the Australian colonies developed a form of ‘indigenous’ jurisprudence’, as has Gordon Morris Bakken in relation to California.

Nevertheless, the point here is that the law of contract remained rooted in English precedent.12

Although contract law was based primarily on common law, other aspects of the commercial laws were developed through legislation. The law in relation to the negotiability of promissory notes, an important aspect of the system of credit, was a creature of statute. As discussed in previous chapters, negotiability is a principle where by the rights attached to a promissory note were transferred by delivery of the document. Even here, however, the law that applied in California and Queensland was remarkably similar. This was a result of the exchange of legal ideas between England, the United

States and Australia.

The negotiability of promissory notes was recognised in English law in 1704 with the Statute of 3 & 4

Anne (1704). The English legislation of 1704 did not immediately apply in the American colonies, but three colonial legislatures did directly adopt the English statute. By 1800, two more states had adopted the principle of negotiability, including the important state of New York, which was growing in importance as a financial centre.13 During the nineteenth century, promissory notes became increasingly important in the economy of the United States.14 For this reason, as settlement moved west, “the law of negotiable instruments went with it”.15 This was certainly the case in California.

On 16 April 1850, the Californian legislature passed An Act relating to bills of exchange and promissory notes that was almost a complete reproduction of the equivalent New York statute.16 In this way, the English law of negotiability found its way into California by way of New York.17

The law of negotiability arrived in Queensland through a similar (but more formalised) process of adoption of English law. As has been previously discussed, Queensland adopted the laws of New

12 See generally, Kercher, An Unruly Child; Kercher, Debt, Seduction & other disasters; Gordon Morris Bakken, The Development of Law in Frontier California (Westpot, CT: Greenwood Press, 1985). 13 Horwitz, The Transformation of American Law, 1780-1860, p. 215. 14 Horwitz, The Transformation of American Law, 1780-1860, pp. 214-215. 15 Friedman, A History of American Law, p. 196. 16 The Revised Statutes of the State of New York (Albany: Packard and Van Benthaysen, 1829), p. 768. 17 For a detailed discussion of the reception of negotiability in the United States see Friedman, A History of American Law, p. 407 and Horwitz, The Transformation of American Law, 1780-1860, pp. 214-215.

245 South Wales which, in turn, received the laws of England in 1828. In 1867, the laws in relation to promissory notes were consolidated in Queensland in the Bills of Exchange Act 1867.18 Thus, in both

Gympie and Nevada County, promissory notes had the characteristic of negotiability, which allowed notes to be transferred and therefore facilitated the development of the credit system.

The commercial law as it applied to debt recovery across the Pacific was similar in important respects.

This was a result of the shared legal history of the Australian colonies and the United States and the continuing influence of English legal developments. In this legal context, similar systems of credit developed out of equivalent economic environments. The commercial experiences of Nevada County and the Gympie region reflect the arguments of Hurst and Friedman that the law was a tool that was used to promote economic growth. In both regions, commerce was able to flourish in a difficult economic climate because the law supported the development of elaborate networks of credit. At the same time, however, the evidence from both regions suggests that the law was applied largely for the benefit of creditors. This supports Morton Horwitz’s argument that the law favoured the interests of business. Viewing the law on either side of the Pacific more broadly, it is clear that the content and application of the commercial law was moulded by a pattern of tensions that went beyond national boundaries. This shared pattern of tensions gave the law, and the economic environment that it supported, a substantially similar shape. In this sense, the legal history of commerce in Nevada

County and the Gympie region can be seen as forming part of a wider history of commercial law that transcends national boundaries.

Corporations law in the gold fields

In both Nevada County and the Gympie region, miners combined their physical and financial resources in order to pursue mining projects more efficiently. At first, miners in both regions formed small partnerships to pursue their commercial and mining activities. As technology developed and methods of mining became more complex and expensive, miners turned to more robust corporate forms that were better suited to attract the investment that the emerging quartz mining industry

18 An Act to Consolidate and Amend the laws relating to Bills of Exchange, Promissory Notes and Cheques 1867 (Qld) 31 Vic No. 15.

246 required. The use of similar corporate forms in Nevada County and the Gympie region was a result of a common social history of mining, the transfer of legal ideas between England and the United States, and the adoption of English principles in the Australian colonies.

The story of corporate law in both regions began with the English law of partnership. The law of partnership is arguably the oldest form of business organisation19 and is a creature of the common law. As described previously, English partnership law provided that a partnership could be formed by business people through a simple agreement to act as partners and to share the profits of the business.

Contracts entered into with third parties were legally binding on all partners, each partner was liable for all debts incurred during the course of the partnership, and no share of the partnership could be transferred without the consent of the other partners.

From the beginning, the English law of partnership was part of the law of both the Australian and

American colonies.20 As has been discussed, when miners left Sydney, Brisbane, or Maryborough for

Gympie, or one of the Eastern United States cities bound for California, they tended to do so in groups, agreeing to share the cost of the journey, food, provisions and living quarters. Not only did miners in both regions arrive having formed partnerships already, but they also found partners on arrival. The nature of mining meant that work could be conducted far more efficiently in small groups and miners formed small partnerships to share tools, claims and their profits.

A focus on the decided cases tells only one story about partnership law in the gold mining regions. In both regions the partnership could be more than a legal arrangement. It could also have social implications. In the Australian colonies, a partner was called a ‘mate’ whereas in California he was called a ‘pardner’. Russel Ward suggests that this was a point of difference between the Australian and American experience. He argues that “the fact that members of the teams were universally known as ‘mates’ suggests the influence of the pre-existing [mateship] tradition. On the Californian

19 Robert W. Hillman, “Private Ordering Within Partnerships”, University of Miami Law Review 41 (1987) 425 (p. 428); Margaret M. Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century” UCLA Law Review 51 (December 2003) 387 (p. 409). 20 See, for example, the discussion of the law of partnership in James Kent, Commentaries on American Law, Vol. 3, 8th ed. (New York: William Kent, 1854), pp. 20-84.

247 fields at the same time, the term used was ‘partners’, a word connoting, basically, a business relationship”.21 However, Charles Shinn, who writes in a similarly romanticised way about the

Californian gold fields, suggests that “the legal contract of partnership became, under the circumstances, the brother-like tie of ‘pard-nership’”.22 It is likely that Ward was incorrect to draw a distinction between the American and Australian experience. From the evidence presented in previous chapters, it appears that in both regions a partnership could have social as well as legal significance. Ward’s explanation for the social significance of the partnership is also difficult to accept. It is unlikely that notions of brotherhood or mateship were indigenous or unique to either the

Australian or American mining frontiers. The scale and scope of immigration, coupled with the fluid movement of population between fields, suggests that the social and legal significance of the law of partnership was less a product of inherited national traditions, and more likely to be a result of the reception of the same English laws, and a close social environment that led to the creation of close personal and working relationships.

While the law of partnership was a creature of the common law, other corporate forms were a result of legislative invention. Although the actual text of the legislation in each region differed, the substantive operation of the corporate law in each region was substantially similar. In particular, the legal position in relation to limited liability, calls on shares, and the transfer of shares was almost identical:

 Limited liability: Under the Californian legislation, the liability of shareholders was limited

to the unpaid amount on their shares. If the company’s debts exceeded this amount, the

directors were personally liable.23 Under the Queensland legislation, shareholders were also

only liable for the unpaid amount on their shares.24 The main difference between the regions

was that in California, directors were liable for the debts that exceeded the capital of the

company. This was not a significant difference, however, because the majority of investors

21 Ward, The Australian Legend, p. 109. 22 Shinn, Mining Camps: A Study in American Frontier Government, p. 111. 23 Section 4, Companies Act of 1863. 24 Section 7, Companies Act of 1863.

248 were still protected by the principle of limited liability and directors could avoid the prospect

of the company incurring debt by issuing additional shares.

 Transfer of shares: Under both the Queensland and Californian legislation, shares were

freely transferable.25 This meant that investors were able to dispose of their shares at any

time if they wished to realise the value of their investment.

 Calls: Under both the Queensland and Californian legislation, the directors could call upon

shareholders to pay amounts to the company up to the value of their subscription. Failure to

pay meant that the share could be forfeited.26 This stimulated investment by allowing miners

to invest in a company with a small initial outlay. The only noticeable difference between the

legal regimes in each region was the development in the Australian colonies of the ‘no

liability’ company. As discussed previously, this form of company emerged in Queensland

with the passage of the Mining Companies Act 1875 (Qld).27 Under this legislation, the

acceptance by a shareholder of a share did not oblige that shareholder to contribute to the

debts or liabilities of the company.28 However, if a company did make a call upon the shares,

and that call was not paid, then the shareholder was not entitled to a dividend upon that share

and the share could be forfeited and sold at public auction.29 While important, this difference

did not change the operation of the law in a significant way. This is because it did not alter

the principle that a shareholder could invest a certain amount in a company without having to

pay that entire amount immediately.

The similarity of the corporate law in each region was a result of the concurrent development of corporate law in England and the United States, the exchange of legal ideas between these regions, and the Australian colonies. The origin of the modern corporate form can be traced back to the fourteenth century in Genoa, when shares were sold in large state-backed companies formed for the

25 Section 21, Companies Act of 1863 (Qld); Section 147, An Act concerning Corporations (1850). 26 Schedule A, Companies Act of 1863 (Qld); Section 127, An Act concerning Corporations (1850). 27 Mining Companies Act of 1875 (Qld). 28 Section 7, Mining Companies Act of 1875 (Qld). 29 Section 8, Mining Companies Act of 1875 (Qld).

249 purpose of mining, importing of materials, and even the conquest of two Mediterranean islands.30

From the sixteenth century, English joint stock companies, operating under a government charter that provided them with certain corporate privileges, were able to amalgamate large pools of private capital and “led the nation’s charge overseas for conquest and profit during the Age of Exploration”.31

Each of these early joint stock companies had to be approved individually by the government.

However, notwithstanding the popularity of the chartered joint stock company, the English parliament was circumspect in its issuing of charters.32 This reluctance led to the emergence of the unincorporated (unchartered) joint stock company in the late seventeenth century. As discussed previously, the unincorporated joint stock company combined the law of partnership and the law of trusts to allow stock holders to transfer shares without the consent of all other shareholders (which was the feature of the chartered joint stock company that was most attractive to investors).33 These unincorporated joint stock companies were not registered or regulated by the government and speculation in them was rampant. As a result of this speculation in unincorporated companies, the

English parliament passed the Bubble Act 1720.34 Among other things, this legislation prohibited unincorporated companies from selling shares. The Bubble Act remained on the statute books until

1825, but as a practical matter was rarely enforced.35

American corporate law owes much to its English origins.36 Although the partnership form was the most common way of organising business enterprises in the United States until well into the

30 Henry Hansmann, Reiner Kraakman, Richard Squire, “Law and the Rise of the Firm” Harvard Law Review 119 (March 2006) 1333 (p. 1376). 31 Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1376. See also Stuart Banner, Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860 (Cambridge: Cambridge University Press, 1998), pp. 23-24. 32 Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1378. 33 Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1383-184; Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century”, p. 413. 34 Royal Exchange and London Assurance Corporation Act 1719 (UK) 6 Geo. I c. 18. Note that there are various explanations for the purpose of this legislation. Stuart Banner has suggested, for example, that it was designed to direct investment towards chartered companies, but also notes the possibility that it was designed to curtail the fraudulent sale of shares, to preserve the Government revenue stream from the sale of charters, Banner, Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860, pp. 76-78. 35 Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1386. On the South Sea Bubble, see Banner, Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860, pp. 41-87; on enforcement, p. 78. 36 E. Merrick Dodd, “The Evolution of Limited Liability in American Industry: Massachusetts” 61 Harvard Law Review (September 1948) 1351, p. 1351.

250 nineteenth century,37 the first American settlers would certainly have been familiar with the chartered joint stock company. Several of these companies, including the Hudson’s Bay Company, operated in colonial America.38 In the late eighteenth and early nineteenth centuries, the state legislatures of the

United States granted charters to companies, primarily for the same types of businesses that the

English parliament had allowed to incorporate, such as those concerned with the construction and operation of canals, bridges and turnpikes.39 Unincorporated joint stock associations were also popular and, just as in England, businesses in America looked to achieve corporate status without seeking a charter from one of the state legislatures.40 In the early development of the corporate form, therefore, developments in the United States mirrored those in England.

Early corporate law in Australia also reflected English legal developments. Although the partnership form was the most popular form of association, the Australian colonists were also familiar, like their

American counterparts, with the concept of the chartered joint stock company. In 1817, Governor

Macquarie purported to confer a charter on the Bank of New South Wales (although the charter was not approved by London).41 Several unincorporated joint stock companies were formed in Australia, including the Australian Agricultural Company in 1824, and the Australian Gas Light Company in

1836. By the middle of the 1830s there was “a sort of mania for the formation of companies”.42

By the first decade of the nineteenth century, American corporate law began to develop independently of English law (albeit moving in a parallel direction and in response to the same economic forces).

By the late eighteenth century, the first incorporation statutes had been passed in a number of states.

37 Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century”, p. 414. 38 James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States, 1780-1970 (Charlottesville: University of Virginia Press, 1970), pp. 7-15. See also Banner, Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860, p. 122 in which it is argued that “[c]ommunication between England and the colonies ... was frequent enough in the eighteenth century to permit the colonies to share in contemporary trends in English thought”. See also Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century”, p. 415; Susan Pace Hamill, “From Special Privilege to General Utility: A Continuation of Willard Hurst’s Study of Corporations” American University Law Review 49 (1999) 81-180. 39 Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1394. 40 Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century”, p. 416. 41 Stephen Salsbury and Kay Sweeney, The Bull, the Bear and the Kangaroo: The History of the Sydney Stock Exchange (Sydney: Allen & Unwin, 1988), p. 8; Phillip Lipton, “A History of Company Law in Colonial Australia: Legal Evolution and Economic Development” (August 2007). Monash University Department of Business Law & Taxation Research Paper No. 11. Available at SSRN: http://ssrn.com/abstract=1030196, p. 808. 42 Lipton, “A History of Company Law in Colonial Australia: Legal Evolution and Economic Development”, pp. 808-809.

251 This legislation allowed companies to be incorporated for specific purposes, usually religious. In

1809, the Massachusetts legislature passed a general incorporation statute for manufacturing, and in

1811 a more general incorporation statute was passed in New York.43 In 1836 and 1837 respectively,

Pennsylvania and Connecticut passed general incorporation laws. The passage of these laws opened the legislative floodgates and by the end of the 1850s, 24 states had enacted similar statutes.44 A general incorporation law was passed in California on 22 April in 1850, and this law was based on the precedents provided by the eastern states.45

In respect of general incorporation law, English law lagged behind the United States. It was not until

1844 that the English parliament finally relented to pressure and passed the Joint Stock Companies

Act 1844.46 This legislation required all unincorporated companies with more than 25 shareholders, or with transferable shares, to register as public companies.47 In 1855, the principle of limited liability was granted to registered companies48 and this emerging body of company legislation was consolidated in the Companies Act 1862.49 The Australian colonies adopted this English corporate legislation almost without modification.50 Within six months of the passage of the Companies Act

1862 in England, a version of the law had been introduced into the Victorian parliament, and in 1863 similar legislation was passed in Queensland.51

43 Blair, “Locking in Capital: What corporate law achieved for business organizers in the nineteenth century”, p. 426; Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1394; E. Merick Dodd, American Business Corporations until 1860 (Cambridge: Harvard University Press, 1954); Dodd, “The Evolution of Limited Liability in American Industry: Massachusetts”. See also Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations (Cambridge: Harvard University Press, 1917) for a discussion of the corporate form prior to the general incorporation legislation. 44 Hamill, “From Special Privilege to General Utility: A Continuation of Willard Hurst’s Study of Corporations”, pp. 102- 103; Liam Seamus O’Melinn, “Neither Contract Nor Concession: The Public Personality of the Corporation” George Washington Law Review 74 (2006) 201, p. 218. 45 Hamill, “From Special Privilege to General Utility: A Continuation of Willard Hurst’s Study of Corporations”, pp. 102- 103. 46 Act for the Registration, Incorporation and Regulation of Joint Stock Companies 1844 (UK) 7 & 8 Vic c. 110. 47 Dodd, “The Evolution of Limited Liability in American Industry: Massachusetts”, p. 1351; Hansmann, Kraakman, and Squire, “Law and the Rise of the Firm”, p. 1386. 48 Limited Liability Act 1855 (UK) 18 & 19 Vic c. 133. 49 Companies Act of 1862 (UK) 25 & 26 Vic c. 89; Lipton, “A History of Company Law in Colonial Australia: Legal Evolution and Economic Development”, p. 810. 50 Rob McQueen, “Limited Liability Company Legislation – The Australian Experience”, p. 24. 51 Lipton, “A History of Company Law in Colonial Australia: Legal Evolution and Economic Development”, p. 814.

252 The similarities between Australian and American corporate law were a result of their shared English legal heritage, the exchange of legal ideas between England and the United States, and the adoption of

English law in Australia. These similarities, combined with the emergence of the capital intensive business of quartz mining led to a boom in the incorporation of mining companies and investment in these enterprises. The speculative nature of this new branch of mining and the lack of regulation of this new corporate form meant that in many cases, investment was channelled by sometimes unscrupulous promoters into risky or hopeless enterprises. In both Gympie and Nevada County, the initial excitement of the quartz boom collapsed as investors failed to see any return on their investment, and as a result became increasingly circumspect. In this sense, the quartz boom and its subsequent collapse in both regions was at least partially a result of the failure of the Californian and

Queensland governments to adequately regulate the investment vehicles that they had created. It was not until the end of the decade in each region that the quartz mining industry began to recover.

Pattern of tensions in the commercial law

The development of the mining law to allow more secure title, and the emergence of large companies to pursue the business of gold mining, in combination with the geologic reality in both regions, led to the consolidation of the industry in the hands of a few companies. Just as the Miner’s Ditch

Company was a predator of small water companies in Nevada County during the 1850s, so too were smaller mining companies in Gympie swallowed by their larger rivals. Linked to the increasing consolidation of the industry was the squeezing out of the small miner. Miners who had previously worked either for themselves or in small partnerships began to work as part of a wage labour force. In

Nevada County, the evidence suggests that miners increasingly worked for a wage. Similarly, in

Gympie there was a division between the ‘working miner’ and the ‘capitalist’.

It would be simplistic to explain the transformation of the industry in each region simply by reference to the influence of corporate law. The geology of each region and the necessity of accumulating large amounts of capital in order to work the quartz mines meant that there was less work for the individual miner who had limited access to capital. At the same time, however, the law did play a role in

253 attracting investment and allowing the formation of large companies to exploit the mineral resource.

The corporate law allowed the mines to be worked more efficiently, but the quest for efficiency and productivity excluded the small working miner from the industry.

The strikingly similar shape of the commercial story in Nevada County and the Gympie region was a result of both regions being the product of the same industry as well as the influence of shared international economic pressures and customs. In the same way, the use of partnerships and companies to pursue the business of gold mining was a result of shared experiences in mining regions, and the widespread use of the corporate form during the nineteenth century. This was a product of the shared common law heritage (in relation to the law of contract and the law of partnership), the exchange of legal ideas between England and the United States (in relation to the law of companies) and the adoption of English laws in Australia and the United States (in relation to the law of negotiability and the law of companies). Just as Nevada County and the Gympie region were connected by the experience of gold mining and the laws governing the industry, so too were both regions connected across time and space by shared commercial customs and the laws that supported them. In both regions, a similar pattern of tensions is also evident in the purpose and effect of those laws. The laws had the effect of promoting economic growth, but at the same time, the laws tended to favour the interests of business at the expense of the small miner.

254 PART III: CRIME ACROSS THE PACIFIC

CHAPTER 9

CRIMINAL LAW IN NEVADA COUNTY

The criminal law in nineteenth-century gold rush California has been eulogised as being rough, crude, and subject to the whims of local courts and the personalities of law enforcement officials. Justice was quick, easy, and not always fair. Although there is some truth in this myth, the real story is more complex. From 1850, California had in place sophisticated criminal legislation. Using these laws, violent offences and property offences were punished, and vices such as alcohol and gambling were regulated.

The mere fact that certain laws could be found in the statute books did not mean that they were always enforced. This disparity between the content of the laws and their enforcement was partly a result of the absence of a constantly organised, strong and reliable police force to enforce the law. The criminal law depended almost entirely on the desire of the Nevada County citizens to enforce their laws. The popular understanding of what was ‘criminal’ therefore supplemented and modified the operation of the criminal law. Put another way, while state and local authorities attempted to pass laws for the public welfare of the citizens, these laws were only effective when they mirrored evolving social norms.

As Nevada County matured as a town, the male dominated and violent culture of the early pioneers gave way to a permanence and prosperity that encouraged the development of more ‘civilised’ norms that were linked strongly with the influence of women, the church, and the family. Tolerance of violent crime decreased, and movements emerged that sought to eradicate the problems of alcohol, gambling, prostitution, and the desecration of the Sabbath. Throughout the decade, changes in the nature or rate of crime had more to do with changing social norms than with the passage or enforcement of criminal laws.

The criminal courts

255 At the centre of the criminal law in Nevada County was the courthouse. The courthouse was the metaphorical stage on which justice was administered, but the location of the performance depended on the type of offence that was committed. The lowest courts were convened by Justices of the Peace.

As explained previously, each Nevada County township elected two of these judges each year. The criminal jurisdiction of Justices of the Peace was limited to the township to which he was elected and extended only to offences such as vagrancy, disorder, petty larceny, assault and battery, breaches of the peace, and other misdemeanours.1 A decision of a Justice Court on a criminal matter could be appealed to the Court of Sessions.

More serious offences were heard by the higher courts. Until 1851, the District Court had jurisdiction to hear all criminal matters. This was problematic because, as discussed previously, at this time the future Nevada County region remained part of Yuba County. The District Court was held in the

County seat of Marysville. The distance between Nevada City, Grass Valley and Marysville made it difficult to prosecute offences.2 The problem of distance was partially resolved when Nevada County was created on 25 April 1851 and in that same year, jurisdiction to hear criminal matters (with the exception of murder, manslaughter and arson) was transferred to the County Court of Sessions, which was convened in Nevada City.3 The Court of Sessions sat 6 times each year, on the second Monday of the months of February, April, June, August, October and December.4 The County judge presided over the Court of Sessions. As discussed previously, the first County judge was Thomas Caswell, who was elected in May 1851. He served until 1859 when he was succeeded by David Belden.

After the transfer of criminal jurisdiction to the Court of Sessions in 1851, the District Court only heard cases of murder, manslaughter and arson. It also heard appeals from the Court of Sessions. As discussed, the District Court convened in Nevada County three times each year.5 William T. Barbour

1 Wells, History of Nevada County, p. 94; sections 89, 90, An Act concerning the Courts of Justice of this State, and Judicial Officers, Ch. 1, Laws of the State of California, 2nd session (1851). 2 Wells, History of Nevada County, p. 56. 3 Section 2, An Act to Organize the Court of Sessions, Ch. 86, Laws of the State of California, 1st session (1850); section 66, An Act concerning the Courts of Justice of this State, and Judicial Officers (1851); Wells, History of Nevada County, p. 94. 4 Section 10, An Act to Organize the Court of Sessions (1850). 5 Section 30, An Act concerning the Courts of Justice of this State, and Judicial Officers (1851). Note that in 1855, Nevada County was transferred to the 14th judicial district.

256 was elected as the first judge of the District Court and was succeeded by Niles Searls. The District

Court was the highest point in the Nevada County pyramid of criminal justice and the highest court before which a criminal trial could be conducted. There was room to appeal to the Supreme Court of

California, but the Supreme Court only heard questions of law. It would not re-try a case.6

The Court of Sessions and the District Court were convened in the courthouse at Nevada City, which became an important symbol of the majesty of the law. Nevada City was not unique in this respect.

The courthouse played an important symbolic role in town life in the east, west, north and south.7

Construction of the Nevada City Courthouse was completed in July 1856, but had to be rebuilt in

January 1857 after it was destroyed by fire. The courthouse occupied a prominent location, sitting on a hill above the town (Figure 9.1).8 When the design of the new courthouse was discussed in 1854, it was remarked that it must be a “magnificent building” and “made entirely of cut stone – our mountain granite of course, as nothing else would be suitable”.9 Once built, the courthouse was described as a

“temple of justice … a conspicuous object arresting the attention of the traveler as he catches the first glimpse of our city”.10

6 Section 7, An Act to organize the Supreme Court of California, Ch. 14, Laws of the State of California, 1st session (1850); Wells, A History of Nevada County, p. 93. 7 On the courthouses of Georgia, see Wilber W. Caldwell, The Courthouse and the Depot: The Architecture of Hope in an Age of Despair: A Narrative Guide to Railroad Expansion and Its Impact on Public Architecture in Georgia, 1833-1910 (Macon, GA: Mercer University Press, 2001). On the symbolic importance of the court in Colonial Virginia, see Rhys Isaac, The Transformation of Virginia: 1740 – 1790 (Chapel Hill: University of North Carolina Press, 1982). 8 Wells, History of Nevada County, p. 134. 9 Nevada Journal, 16 June 1854. 10 Nevada Journal, 27 June 1856.

257 Figure 9.1: The Courthouse in Nevada City (1856)

Courtesy: Searls Historical Library

Offences against the person

The American frontier lives in mythology as a place of exceptional violence. Although the truth of this myth has been challenged by some historians,11 newspaper reports and personal accounts show that everyday life in Nevada County was intimately related to actual violence and the threat of violence.12 The Nevada County pioneers of 1850 certainly saw violence as incidental to their life in a mining town. One miner wrote that “scarcely a night passed that men were not killed, in or about the city”.13 Another miner, Peter Decker, recorded in his diary numerous instances of violence throughout 1850.14 Henry Verbeck wrote to his wife in 1851 that “if it was not such a dangerous country to raise a family in I should send or come back myself in the Spring after you. There is all

11 See, for example, Robert R. Dykstra, The Cattle Towns (New York, NY: Alfred A. Knopf, 1968). 12 Nevada County may have been an “enclave” of violence, to use the terminology of Clare V. McKanna, “Enclaves of Violence in Nineteenth-Century California” The Pacific Historical Review 73(3) (August 2004) 391-423. This question of frontier violence has occupied historians of the American West. See, for example, R W Mondy “Analysis of Frontier Social Instability” Southwestern Social Science Quarterly 24 (September 1943) 167-177; Mabel A. Elliot, “Crime and the Frontier Mores” American Sociological Review 9 (April 1944) 185-192; Richard Maxwell Brown, Strain of Violence: Historical Studies of American Violence and Vigilantism (New York, NY: Oxford University Press, 1975). 13 John Bidwell and John Steele, Echoes of the past about California and In camp and cabin (Chicago: R R Donnelley & Sons, 1928), pp. 131-134. 14 Peter Decker, The Diaries of Peter Decker (Georgetown, CA: Talisman Press, 1966), pp. 211, 230-231, 252, 255, 258, 262.

258 kinds of vice in this country”.15 Reports of violence continued throughout the 1850s. Hugh McGill

wrote in 1855 that “there is somebody getting killed here every day or so” and that “most every man

here carries a pistol”.16 In 1857, Simon Lucy reported from the Rough and Ready township that

“there was a Frenchman shot within a few miles of our cabin” and that “the man that shot him is at

large now and being only the fourth man that he has shot within the last four or five years”.17

Although it is possible that these pioneers may have exaggerated the level of violence in their letters

home, their accounts are corroborated by the numerous newspaper reports of stabbings, shootings,

murders, and the discovery of unidentified bodies.18 By the end of 1851 Warren B. Ewer, editor of

the Nevada Journal, exclaimed that there were so many “brutal outrages, murders, and crimes of

every hue” that he had “wearied of the task of transferring them to our columns”.19

The prevalence of violence did not grow out of the lack of adequate legislation. As early as 6 April

1850, the California legislature passed an Act concerning crimes and punishments.20 This legislation

provided the State with a comprehensive criminal code, dealing with offences against the person such

as murder,21 manslaughter,22 dueling,23 rape,24 and assault.25 Under this legislation, murder was the

most serious offence and a convicted offender was liable to be executed.26 The crime of rape was also

treated seriously, with a maximum sentence of life imprisonment. Offenders convicted of less serious

15 Letter of Henry Verbeck, 18 October 1851, (California State Library, Sacramento). 16 Letter of Hugh R. McGill, 28 July 1855 (ms. BANC MSS 86/202 c., Bancroft Library, University of California, Berkeley) 17 Letter of Simon S Lucy, 11 May 1857 (ms. BANC MSS 99/355 cz, Bancroft Library, University of California, Berkeley); Later that year Lucy wrote of a “great excitement” on account of a ditch agent being murdered by “some Chinamen”, Letter of Simon S Lucy, 9 December 1857. See also Letter of Hugh R. McGill, 28 July 1855 (ms. BANC MSS 86/202 c., Bancroft Library, University of California, Berkeley). For other examples, see Nevada Democrat, 8 February 1854 describing a shooting at Rough and Ready; Nevada Democrat. 3 January 1855 reporting a “fracas” in Pine Street between Tony Brown and a man named Goltz in which Brown was shot in the leg. 18 Sacramento Transcript, 12 April 1850; Sacramento Transcript, 26 July 1850; Murder of Dr William Lenox, Sacramento Transcript, 23 January 1851; Nevada Journal, 11 October 1851, which reported that body of a Frenchman had been found in the woods between Sweetlands and the Yuba. 19 Nevada Journal, 15 November 1851. 20 An Act concerning Crimes and Punishments, Ch. 99, Laws of the State of California, 1st session (1850). 21 Section 19, An Act concerning Crimes and Punishments (1850). 22 Section 22, An Act concerning Crimes and Punishments (1850). 23 Section 41, An Act concerning Crimes and Punishments (1850). 24 Section 47, An Act concerning Crimes and Punishments (1850). 25 Section 49, An Act concerning Crimes and Punishments (1850). 26 Section 21, An Act concerning Crimes and Punishments (1850), which was amended in An Act Amendatory to and Supplementary to an Act entitled "An Act concerning Crimes and Punishments", Ch. 110, Laws of the State of California, 7th session (1856).

259 offences received significantly smaller punishments. Until 1856, the maximum sentence for manslaughter was 3 years27 and the maximum sentence for assault was 3 months.28

As mentioned previously, the Justice Courts, the Court of Sessions, and the District Court all had jurisdiction to hear criminal cases. Of these, the busiest was the Court of Sessions. While Justices of the Peace technically had jurisdiction to hear criminal cases, their courts were dominated by civil cases. Addison Niles, for example, noted that mining cases formed “a large portion of the business”.29

The judgment docket of Judge Tallman Rolfe shows that between May and November 1850, he heard only 17 cases.30 Of these, only three cases were heard in his criminal jurisdiction. A survey of 174 cases heard by 13 Justices of the Peace in and around Nevada County at various times between 1850 and 1863 shows that only 20 (11.5 per cent) of their cases were criminal.31 Each individual Justice

Court was not particularly busy. Judge Nelson of nearby Placer County heard a total of 33 cases in 14 months (both civil and criminal). Similarly, Judge Snyder heard only 40 cases in 25 months.32 Courts in more remote sections of the County may have heard even fewer criminal cases. Nevertheless, it is clear that the Justice Courts were not particularly busy in their criminal jurisdiction.

In contrast to the Justice Courts, the Court of Sessions heard 203 criminal cases between 1856 and

1863 (Figure 1). The Court of Sessions was therefore far busier than any individual Justice Court in its criminal jurisdiction and likely heard more cases than all the Justice Courts in Nevada County combined. However, given the level of violence that was observed in Nevada County, this remains a surprisingly small number of cases. Between 1856 and 1863, the Court of Sessions heard an average of a little over 26 cases each year. Even in the peak years of 1857 and 1860, the Court heard only 42 and 46 cases respectively (Figure 9.2).

27 Section 26, An Act concerning Crimes and Punishments (1850). This was amended to 10 years by An Act to Amend an Act concerning Crimes and Punishment (1856). 28 Section 44, An Act concerning Crimes and Punishments (1850). 29 Comstock, Brides of the Gold Rush, p. 197. 30 Justices Docket, T H Rolfe JP (MSS C-A 217 FILM, Bancroft Library, University of California, Berkeley). 31 For a list of these sources, see Figure 6.4. This finding also accords with the research done by John R. Wunder, Inferior Courts, Superior Justice, p. 149. 32 Dockets of Justices E.H. Snyder, John Hyland, J.L. Robertson, Matthew Jansen, and A.J. Bishop (ms. BANC MSS C-A 261, Bancroft Library, University of California, Berkeley).

260 Figure 9.2: Cases heard by the Nevada County Court of Sessions, 1856-1863 Cases 1856 13 1857 40 1858 27 1859 15 1860 45 1861 22 1862 22 1863 19 Total 203

Source: Court of Sessions Minute Book, Doris Foley Historical Library, Nevada City, California

Unfortunately the records of the Nevada County Court of Sessions prior to 1856 were destroyed by fire, but the records of nearby Placer County offer a glimpse into the type of cases and the volume of cases that the Nevada County Court of Sessions may have heard prior to 1856. Indeed, there are remarkable similarities between the Placer County and Nevada County Courts of Sessions. In 1851, the Placer County Court of Sessions heard only 44 cases. Between 1851 and 1854, the Placer County

Court of Sessions heard 120 cases, at an average of 30 each year, only slightly higher than the number of cases heard by the Nevada County Court of Sessions (Figure 9.3). On this evidence, it is inferred that if the criminal records for Nevada County prior to 1856 still existed, they would reveal a similar pattern of prosecutions.

261 Figure 9.3: Cases heard by the Placer County Court of Sessions, 1851-1854

Cases 1851 44 1852 21 1853 29 1854 26 Total 120

Source: Court of Sessions Minute Book, Placer County Archives, Auburn, California

The small number of offences prosecuted in the Nevada County courts is anomalous in the context of

a violent community. Given the observations of miners such as Hugh McGill who complained that

“there is somebody getting killed here every day or so”33 and Henry Verbeck’s comment to his wife

that California was far too dangerous a country in which to raise a family, it is likely that the number

of prosecuted offences vastly underrepresents the number of crimes actually being committed. The

reason for this anomaly likely lies in what quantitative criminal studies refer to as the “dark figure of

unreported crime”.34

So many crimes were unreported because law enforcement authorities in Nevada County were so

stretched that they were not in a position to prosecute offences, and a prosecution was usually only

initiated if a member of the public (often the victim) had the means and the desire to pursue the

offender in the courts. Even prosecutions of serious offences many not have been initiated unless a

33 Letter of Hugh R. McGill, 28 July 1855 (ms. BANC MSS 86/202 c., Bancroft Library, University of California, Berkeley). 34 See, for example, Lawrence Friedman and Robert Percival, The Roots of Justice: Crime and Punishment in Alameda County, California 1870-1910 (Chapel Hill: University of North Carolina Press, 1980). The best known works on the history of the criminal law have focussed on English law. For works of this nature, see Douglas Hay’s famous essay, Douglas Hay “Property, Authority and the Criminal Law” in Douglas Hay et al. Albion’s Fatal Tree, (London: Penguin Books, 1975); Peter King, Crime, Justice and Discretion in England, 1740-1820 (New York: Oxford University Press, 2000); J.M.Beattie, Crime and the Courts in England, 1660-1800 (Princeton, NJ: Princeton University Press, 1986); Douglas Hay, "War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts” Past and Present, No 95 (May 1982) 117-160.

262 complaint was lodged. For example, in January 1854, a dispute arose between a party of Irishmen and Americans. The Irish party went to the Eureka Hotel and “commenced a row”. The Irish were asked to leave, but did not do so and “were fired upon” by the customers of the hotel. Only when a complaint was lodged at Nevada City did an officer proceed to Eureka to arrest 6 of the Irishmen.35

Law enforcement authorities could only react to those offences that were brought to their attention.

They were in no position to detect and prevent crime.

The reactive nature of law enforcement meant that prosecution rates were subject to the general public’s notion of what was ‘criminal’. This is important because, as we shall see, certain types of violence were tolerated by the public. This conclusion is supported by the court records. If we assume that less serious crimes, such as common assault, occurred far more frequently than the more serious crimes such as murder and manslaughter, then if offences were prosecuted uniformly, the number of minor crimes heard by the courts should have far in excess of the number of serious crimes. But this was not the case in Nevada County where cases of common assault were prosecuted just as often as the crimes of murder and manslaughter (Figure 9.4). Around one-third of the violent offences that saw the inside of the Court of Sessions resulted in the death of the victim. Even if we assume that a number of common assaults might be heard in the Justice Courts, this remains an intriguing ratio. Rather than suggesting that murder was committed as often as common assault, it suggests that serious violent offences were prosecuted and that minor violence was only prosecuted when it involved some other factor that made the crime particularly heinous. This is confirmed by the fact that almost half of the assaults heard by the Court were committed with the intent to murder.

35 Nevada Journal, 3 February 1854.

263 Figure 9.4: Violent offences heard by the Nevada County Court of Sessions, 1856-1863

Murder 29 Assault with 24 intent to murder

Assault with 19 intent to injure

Assault 11 Manslaughter 4 Assault and 3 Battery Assault with 2 intent to rob Rape 1 Total 93

Source: Court of Sessions Minute Book, Doris Foley Historical Library, Nevada City, California

The absence of a particular type of crime from the court records is just as instructive as the ratio of crimes that were recorded. In this respect, the almost total absence of women in the criminal records is particularly important. Although the records of the Nevada County Court of Sessions rarely disclosed the name of the victim, it is possible to discern from newspaper reports that violent offences heard by the courts were, to an overwhelming extent, committed by men, against men. Between 1856 and 1863, for example, the Court of Sessions heard only one case of sexual assault. Similarly, the records of the Placer County Court of Sessions show only one prosecution for sexual assault between

1851 and 1854. The small number of women as victims is not surprising given that women made up approximately 3 per cent of the population of Nevada City and Grass Valley in 1850. Even by 1860, the ratio had only grown to 17 per cent.36 Nevertheless, there is evidence of domestic violence against women, which never resulted in a criminal prosecution. In October 1856, for example, the marriage between Robert Eirle and Mary Eirle was dissolved because Robert was found to have treated Mary

“with extreme cruelty”.37 In proceedings to dissolve the bonds of matrimony between Eugenia and

36 Ralph Mann, After the Gold Rush, p. 224. 37 District Court Judgment Book (Doris Foley Historical Library, Nevada City, California). See also Catharine Downing v James Downing, 25 June 1857.

264 Charles Neville, Eugenia recalled that “the defendant struck me with his fist and otherwise abused

me” and at other times “kicked and slapped me” and “kicked, beat and abused me”. Eugenia

concluded her evidence by noting that Charles “cruelly and inhumanely beat me … did punch, hold,

caught and shook me in a rough and barbarous manner”.38 Between June 1856 and June 1857, the

Nevada County District Court heard 19 cases in which a wife requested the dissolution of her

marriage. It is not suggested that all cases involved violence, but there is evidence that at least some

did. There is no record, however, of any of these husbands being charged with assault. This evidence

suggests that certain types of violent behaviour were not considered to be criminal. The discretionary

application of the criminal law thus reflected existing gendered power structures.

Women were not the only victims of unprosecuted violence. From the first days of Nevada County,

the Nisenan Amer-indians of the region were the subject of significant violence. On 18 April 1850,

the Alta California reported that an “outrage upon the Indians” had taken place in the area that would

become Nevada County. The article suggested that the violence was caused by the theft of animals by

“vagrant Indians”. As a result, a party of “infuriated whites” began an “indiscriminate slaughter” of a

party of Native Americans who happened to be in the same area. When the Native Americans stood

their ground and succeeded in wounding two whites, a party of two hundred men was organised to go

in pursuit.39 Even if the Native Americans who were the subject of the massacre were responsible for the theft, the white response was clearly disproportionate. This was a common theme in Nevada

County’s early months, a time during which the Nisenan were viewed with contempt. Peter Decker described them simply as “mere animals”.40 Continued tension between the Nisenan and white

population led to the mobilisation of the army. In May 1850, two companies of Mounted Volunteers

under the command of Captains Allgiers and Charles Hoyt, and another company under the command

of Lieutenant James Bell, “scoured the country in the region of Deer Creek and Bear River”, engaging

and killing Indians that they encountered.41 By the end of May, a peace treaty had been signed by the

38 Eugenie Neville v Charles Neville, Case No. 209, District Court (Searls Historical Library, Nevada City, California). 39 Alta California, 8 April 1850. 40 Decker, The Diaries of Peter Decker, pp. 252-254, quoted in Mann, After the Gold Rush, p. 51. 41 Alta California, 31 May 1850.

265 Nisenan, the State of California and the United States Government.42 This had little practical effect on white violence, however, and in September the following year, Aaron Sargeant noted that white men continued to commit “wanton outrages” against the Indians and argued that “[u]nless the whites will respect the rights of the Indians, what reliance can we place on their good faith in keeping treaties”.43

By 1855, around one quarter of the Nisenan had been removed to the Nome Lackee reservation, which was located west of Sacramento.44 No longer were the Nisenan feared. They had become

“objects of pity”.45 Nevertheless, sporadic reports of unprosecuted violence against Native Americans continued to appear in the newspapers. In 1858, for example, a meeting was held at Grass Valley to request that measures be taken in relation to the “Indian outrages”. It was decided that those who had suffered a grievance might be “compelled to take the matter into their own hands and protect their persons and property in a manner that American citizens know well how to do”.46

In addition to the failure to prosecute the perpetrators of this type of violence, Native Americans were also prevented from giving evidence if such a case ever found its way into the courts. Section 14 of

An Act concerning Crimes and Punishments (1850), provided that “[n]o black or mulatto person, or

Indian, shall be permitted to give evidence in favor of, or against, any white person. Every person who shall have one-eighth part or more of Negro blood shall be deemed a mulatto, and every person who shall have one half of Indian blood shall be deemed an Indian.”47 The practical effect of this was to legalise violence against the Nisenan and other tribes because any prosecution of that violence would likely fail from lack of evidence.

The Chinese were also targets of racially motivated violence. The exclusion of Chinese miners from the mining industry and the use of violence to expel them has already been discussed. However,

42 See Comstock, Gold Diggers & Camp Followers, pp. 274-286 for a fictionalised, but helpful account of events. 43 Nevada Journal, 27 September 1851. 44 David Comstock, Gold Diggers & Camp Followers, p. 216. 45 Mann, After the Gold Rush, p. 51. 46 Grass Valley Telegraph, 22 May 1858. See also Nevada Journal, 27 November 1851. 47 Section 14, An Act concerning Crimes and Punishments (1850).

266 violence went beyond the industry of mining. In 1854 and 1855, violence against Chinese in Nevada

County and California was widespread. In the minds of Americans, the Chinese were associated with the opium trade and with prostitution. Violence against the Chinese was therefore justified as part of a crusade against vice.48 The perpetrators of this violence rarely saw the inside of a court room. If they did, the Chinese victims suffered under the same legal disability as Native Americans and could not give evidence against a white person.

A good example of the practical effect of this law occurred in August 1853 when George Hall, his brother, and another man were accused of killing a Chinese man, Ling Sing, at his camp. A jury in the District Court at Nevada County found Hall guilty of murder. The interesting thing about this conviction is that a number of Chinese witnesses were permitted to testify against Hall. Neither the newspaper reports of the case, nor the court records, suggest why Judge Barbour ignored Californian law and allowed this testimony to be heard. It may be, however, that the strength of the evidence persuaded Barbour to allow it. In summarising the evidence for the jury, the judge suggested that the evidence was so strong that it “would not have permitted the most incredulous to form any other conclusion”. Perhaps Barbour would not have admitted less conclusive testimony. This interpretation is supported by Judge Barbour’s response to Hall’s request for another trial. In listing the evidence on which the jury decided the case, Barbour referred to “the clear and positive proof of the Chinese witnesses, corroborated by American testimony, together with the strong circumstantial evidence”.

By considering the evidence of the Chinese together as a ‘bundle’ and implying that it was only persuasive because it was “corroborated” both by testimony from Americans, Barbour justified why

Chinese testimony (which Barbour hinted was inherently less reliable) could be heard in this particular case. The sheer weight of evidence may also explain why the jury was able to put to one side any racial prejudice that they may have held and convict Hall. Perhaps in cases of less conclusive evidence, a jury may not have returned a guilty verdict. Certainly, the actions of the jury did not reflect the opinions of many in the wider Nevada County community. In summing up, Judge

Barbour observed that to a large extent, violence against the Chinese was tolerated in California and

48 Mann, After the Gold Rush, p. 162.

267 that “[m]any persons have supposed that it is less heinous to kill a Negro, an Indian or a Chinaman than a white person”.49

Hall appealed the case to the Supreme Court on the basis that the Chinese evidence was not admissible. Justice Hugh C. Murray gave the judgment of the court (Justice Alexander Wells dissenting). Murray explained that by using the words “No Black or Mulatto Person, or Indian”, the legislature “adopted the most comprehensive terms to embrace every known class or shade of color, as the apparent design was to protect the White person from the influence of all testimony other than that of persons of the same caste”.50 By upholding the appeal, the case was returned to the District

Court for a re-trial. However, with the exclusion of Chinese evidence, and the death of a key white witness, the District Attorney decided to drop the case. Hall was released. This case has broader repercussions. By upholding legislation that excluded evidence of Chinese, black, and Native

American people, the decision effectively sanctioned white violence against these minorities. Both at a formal and informal level, the criminal law tolerated violence that accorded with and reinforced the power structures of the society.

Violence as a general proposition was not necessarily frowned upon in the early 1850s. Indeed, violence was even sanctioned by the courts as an appropriate punishment. In December 1851 the

Nevada Journal reported that during a performance at the theatre, a Mr Turner, aged only 20 years,

“put his hand through the ticket window and stole thirty dollars”. Mr Turner was heard by Justice

Anderson who sentenced the young man to 30 lashes.51 Similarly, when Richard Smith was found guilty for stealing a small sum of money from a roulette table, he was sentenced to 28 lashes and a threat of hanging if he did not leave the town.52

It was sometimes acceptable to use violence to defend life and property. In many of these cases, the resulting ‘assault’ was not prosecuted. This easy resort to violence has been described by the

49 Comstock, Brides of the Gold Rush, p. 145. 50 People v Hall 4 Cal 399, 1854 WL 765 (Cal.) (1854), p. 4. 51 Nevada Journal, 11 December 1851. 52 Nevada Journal, 16 October 1851. See also Nevada Journal, 12 February 1858 where the whipping of a man who had stolen blankets and other articles received no adverse commentary.

268 historian Richard Maxwell Brown as “a key cultural institution of California and the West”. Brown argued that there was “no duty to retreat” in the face of violence and that Californians were “mentally programmed” to “stand their ground and kill in defence of themselves, their property, and their values.”53 Thus, when a man named Gregg was shot by a man named Smith at German Bar in

October 1853, Smith was not arrested because Gregg “was on a spree at the time of the shooting, and acted very imprudently, so that little blame can attach to the man who killed him”.54 Explicitly illustrating the principle of ‘no duty to retreat’, was a dispute at the Red Dog diggings between two miners. A pistol was fired by one miner in order to “scare his opponent from the diggings”. The other miner returned fire and was arrested. He was later discharged on the basis that the provocation was “considered sufficient to justify his course”.55

The defence of property by violence also occurred in Nevada County. In 1854 when news of “bold and well trained burglars” was published in the Nevada Democrat, the editor recommended

“watchfulness and Colt’s revolvers”.56 In May 1855, the Nevada Democrat noted a shooting at Alpha between Samuel Harrison and Erastus Keiler. Harrison had in his possession a pan of gold dust, which Keiler attempted to take from him. Harrison then struck Keiler, who drew a pistol and fired twice.57 Another miner explained how he dealt with a situation where he did not receive wages for work done on a mining claim: “I sprang before him to the door, and presenting a pistol, with a loud voice ordered him to ‘Stop! Now sir, I'm going away this morning, but this matter must be settled first; you can pay it now, or never have another chance’.”58 This is certainly what Simon Lucy observed when he wrote to his sister in 1856 that “life is too frequently taken where resistance is made, which is passed over by our courts as though it were the life of a bullock”.59

53 Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (Norman, OK: University of Oklahoma Press, 1991), p. 87. 54 Nevada Journal, 12 August 1853; 22 July 1853; Nevada Democrat, 10 February 1858; shooting of Ridgely by Tyree at Gold Hill, Nevada Democrat, 10 March 1858. 55 Nevada Journal, 12 February 1858. 56 Nevada Democrat, 16 August 1854. 57 Nevada Democrat, 2 May 1855. 58 Bidwell and Steele, Echoes of the past about California pp. 145-148. 59 Letter from Simon S Lucy to his sister, Nevada City, 18 October 1856; See also Nevada Journal, 20 October 1854; 29 February 1856; Nevada Journal, 11 March 1852.

269 Taken to an extreme, honour could be defended by violence through the social institution of dueling.

In the United States, dueling has generally been understood as a Southern phenomenon, and it was in that region that a ‘code of honor’ to regulate disputes developed most visibly.60 However, we also know that dueling was practised in the northern states in the late eighteenth and early nineteenth centuries. Joanne Freeman argues that both “northerners and southerners, frequent duelists and those who had never dueled, all understood the strictures and rituals of the code of honor”.61 Dueling was originally understood to be an institution of the privileged classes, but historians have demonstrated that the further the institution moved from the “Deep South”, the less participation reinforced social hierarchy.62

Residents of Nevada County were familiar with the institution of dueling and the ‘honor code’. A history of Nevada County, written in 1883, noted that “men kept civil tongues in their heads” because all men were armed and “an insult was instantly avenged. No man called another a liar or applied to him a vile epithet, unless he expected to fight, and drew his revolver the instant the words passed his lips”.63 Even Niles Searls, a future District and Supreme Court judge who was born in New York, wrote to his wife Cornelia that with “the Texas code of practice (ie. a revolver) we consider ourselves both safe and at home in all places”.64 The most celebrated example of dueling in Nevada County occurred in November 1851, around 18 miles from Nevada City at a place called Industry Bar.65 On that day, George Dibble and Jim Lundy were engaged in what observers termed a “trivial dispute”.66

As the argument became more heated, Dibble arose and pronounced Lundy to be a “damned liar”.

Under the ‘honor code’, such an insult was generally taken to be an assault to a gentleman’s

60 See Warren F. Schwartz, Keith Baxter, David Ryan, “The Duel: Can These Gentlemen Be Acting Efficiently?” The Journal of Legal Studies, 13(2) (June 1984) 321-355. Note that the term “code of honor” is a misnomer. There were many such codes, but all sought to define the social convention and regulate the resolution of disputes in accordance with norms of honour. Because of its American origins, the American spelling of ‘code of honor’ is adopted when referring to this code. 61 Joanne B. Freeman, “Dueling as Politics: Reinterpreting the Burr-Hamilton Duel” The William and Mary Quarterly 53(2) (April 1996) 289-318 (p. 299). 62 Dick Steward, Duels and the Roots of Violence in Missouri (Columbia: University of Missouri Press, 2000), p. 9. 63 Wells, History of Nevada County, p. 110. 64 Comstock: Gold Diggers & Camp Followers, p. 323. 65 It was suggested by some contemporaries that this was the only duel to occur in the history of Nevada County, See the history written by Aaron Sargent in Brown and Dallison’s Nevada, Grass Valley and Rough Ready Directory (1856). This conclusion is directly contradicted in other accounts such as Wells, History of Nevada County, p. 121 and Ferguson, The Experiences of Forty-Niner, pp. 190-191. 66 Nevada Journal, 1 November 1851.

270 character.67 At this slur, Lundy rose from his seat, looking like he was about to strike Dibble.

Dibble’s response was to challenge Lundy to a duel. Friends of Lundy and Dibble attempted to mediate the dispute, but James Morehead (a friend of Dibble) and Charles Morse (a friend of Lundy) nevertheless measured a distance of 15 feet between the protagonists and handed the respective protagonists their Colt revolvers. It is likely that Lundy was familiar with the ‘honor code’, particularly its “precautionary rituals” which were designed to minimize the likelihood of any actual conflict taking place.68 Moments before the duel was to take place, Morse told Dibble that Lundy had no ill feeling towards him and that “a withdrawal of the challenge on his part would settle the difficulty”. In an indication of the importance of what was at stake, Dibble responded that “he would die first”. And that he did. At the signal, Lundy fired and shot Dibble through the chest.69

The Dibble/Lundy duel was framed as a matter of personal pride and honour and proceeded along customary lines. When the case was investigated by Justice of the Peace John Anderson, the testimony of witnesses referred to the ‘code of honor’, suggesting that its existence was, at the least, recognised. S. S. Craft observed that Morse and Morehead acted as “seconds” and the prosecution case against Morse and Morehead proceeded on an assumption that both were well aware of the customary laws of dueling. Indeed, even witnesses such as J. C. Leonardson, who professed not to know the specific rules of dueling, acknowledged the presence of certain “customs in such matters”.

Although Justice Anderson held that there was sufficient evidence for Lundy, Morse and Morehead to be tried by the Court of Sessions, evidence adduced during the investigation revealed that among the general population the extra-legal remedy of dueling was tolerated and that there existed a body of custom that, if complied with, made the act of dueling less reprehensible. As the Nevada Journal remarked when summarising the evidence, “all the preliminaries usually observed by men of honor” were complied with and that the killing of Dibble was in the “regular fashion” deemed proper in the

“code of honor”.70

67 Freeman, “Dueling as Politics: Reinterpreting the Burr-Hamilton Duel”, p. 299. 68 Freeman, “Dueling as Politics: Reinterpreting the Burr-Hamilton Duel”, p. 301. 69 Nevada Journal, 6 November 1851. 70 Nevada Journal, 6 December 1851.

271 The fact that this type of violence was tolerated by a large number of citizens is evidenced by the fact that when Lundy was found guilty by the Court of Sessions, a petition was circulated requesting a pardon for him. The Nevada Journal considered that there was “little doubt” that the Governor would

“grant the prayer of the petitioners”.71 A procedural irregularity meant that the decision of the Court was quashed and a re-trial was ordered for April 1852. However, the District Attorney decided to drop the case on the basis that “as other men, even high in authority, have been allowed to go out and shoot each other to their satisfaction, and no attempt made to bring them to justice, the law against dueling is regarded as a dead letter”.72

This is not to suggest that the institution of dueling was universally accepted. When news of a duel reached the Nevada Journal in 1852, its editor Aaron Sargent, lamented that “the history of our state is again stained with the record of a fatal duel in which a leading member of the press and ex-member of Congress is laid in the duty”.73 However, even Sargent was aware of the ‘honor code’. In responding to an article in which Robert Davidge accused him of being a liar, Sargent explained his refusal to fight a duel on the basis of his moral objection. The intriguing point here is that there was no mention of the prospect of a duel in Davidge’s original article. This suggests that Sargent and his readers were well enough versed in the ‘honor code’ to understand the references that Davidge made to the institution (such as his reference to Sargent as a liar). Confirming this, Sargent expressly referred to the code in his response, stating “[b]y the laws of the code you appeal to ... a gentleman is required only to meet gentlemen”.74 This suggests, therefore, that knowledge of the ‘honor code’ was widespread among Nevada County’s citizens, and that even those people who objected to the institution might engage in the process of negotiation that accompanied the performance of the duel.

71 Nevada Journal, 6 December 1851. 72 Nevada Journal, 8 April 1852. 73 Nevada Journal, 7 August 1852. See also Nevada Democrat, 12 July 1854. 74 Nevada Journal, 2 December 1853. For the article by Davidge, see Young America, 30 November 1853.

272 Although the Lundy/Dibble duel was not the only duel that took place in the early 1850s,75 it is likely

that dueling accounted for only a very small number of homicides in Nevada County. More

important, however, is what the institution of dueling reveals about the culture of violence in Nevada

County. If dueling was sometimes tolerated to avenge a man’s honour, then it is not surprising that

lesser degrees of violence were both used and tolerated to defend against other attacks on a man’s

character. In relation to this type of violence in Missouri, Dick Steward has noted that “[p]ugilists,

following the lead of duelists, had rules of behavior that legitimized the brutality”.76 A San Francisco

judge pronounced that “I have always held that a man had the right to defend his honor and

reputation, and though it is a doctrine of the common law that mere words will not justify an assault,

yet I have never punished an individual for maintaining his honor and manhood. It is time for

offenders to learn that it will not be regarded by this Court as any offence for a gentleman to resent

insults on the public streets”.77 William Stewart described an incident in Nevada County where Henry

Miller met Brother Bland, a Methodist preacher from Virginia. After a trivial disagreement, Miller

struck Bland who then “took the young fellow by the nape of the neck, threw him over an old log, and

gave him one of the best spankings a man ever had”.78 The judge ruled that “it becomes my pleasant

duty to decide this case. I have listened to the evidence attentively, and I’ll be damned if I can see

anything in it but a fair fight. You did right and are discharged”.79

If violence to defend person, property and honour was tolerated, when was violence considered by the

public to be criminal? Most obviously, an offence was prosecuted if it was sufficiently serious. As

discussed previously, a large proportion of the court’s time was occupied with manslaughter,

attempted murder, or murder. Between 1856 and 1863, 30 cases of murder, 4 cases of manslaughter,

75 The Nevada Democrat noted that “owing to certain ancient feuds and modern difficulties between two hombres in town, one challenged the other to meet him in deadly combat ‘on the high ground of honor’ on Monday last”, Nevada Democrat, 1 February 1854. See also the report that “Mr Thomas of Auburn, who killed Dr Dickson some time since in a duel in Sacramento, was tried on Monday evening, before the Lodge of Masons at Grass Valley, and acquitted on the ground that he was compelled to fight a duel or run the chances of a street fight”, Nevada Democrat, 13 April 1854. See also an “affair of honor” between the former Governor McDougal and Andrew C. Russell, Nevada Journal, 15 January 1852; the Honourable D C Brodrick and Judge J. Caleb Smith, Nevada Journal, 23 March 1852; another “affair of honor” reported in Nevada Journal, 11 April 1852; two reports of dueling in Nevada Journal, 14 August 1852. 76 Steward, Duels and the Roots of Violence in Missouri, p. 139. 77 Nevada Democrat, 6 April 1854. 78 Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 95-97. 79 Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 95-97. For another example of self defence, see Nevada Democrat, 22 February 1854.

273 and 27 cases of assault with intent to murder were prosecuted in the Court of Sessions (Figure 9.4).

Over two thirds of the cases heard by the Court of Sessions involved either the death of the victim, or an alleged attempt to kill the victim. This was not just the case in the second half of the 1850s.

Throughout the decade, the newspapers frequently reported murders.80

While it is clear that not all murders were prosecuted, crimes of that nature were certainly more likely to see the inside of a court room. Unprovoked attacks in particular were likely to be prosecuted. In

October 1852, for example, it was reported that Samuel Natter and another man were fighting in the street in Nevada City. Alex Quick intervened to separate the two men and was stabbed in the eye with a bowie knife for his troubles. Natter was immediately arrested.81 But revenge, by itself, was not always a sufficient excuse. On a Sunday evening in January 1851, for example, Dr William

Lennox was shot while sitting in his office. There was evidence of difficulties between Lennox and two men, Best and Fitzpatrick, who were accused of Lennox’s murder. It was suggested that on a previous occasion Lennox had fired at Best and Fitzpatrick, but this did not prevent the prosecution of the men.82 Even where a murder occurred in the course of some other scuffle, it might be prosecuted if the act of retaliatory violence was out of proportion to the original violence. Henry Janssen, for example, was convicted for manslaughter when he stabbed Eli Cook. The stabbing occurred as a result of an argument over the price of pickles. Cook slapped Janssen, who stabbed Cook in response.83

The reason for the prevalence of violence was that Nevada County was a meeting point of the culture of no ‘duty to retreat’ and the ‘code of the honor’. These cultures flourished in rowdy saloons fuelled by an abundance of alcohol. In combination with this was a strong gun culture that existed on the

80 Murder of Dr William Lennox, Sacramento Transcript, 23 January 1851; Murder of Patrick Berry, Nevada Journal 11 March 1852; Nevada Journal, 4 April 1852; Murder of Alex Quick, Nevada Journal, 15 October 1852; Murder at French Corral, Nevada Journal, 26 June 1856; Murder at San Juan, Nevada Democrat, 24 September 1856. 81 Nevada Journal, 15 October 1851. For other examples, see murder of Ling Sing by G W Hall, Nevada Journal, 25 November 1853. 82 Sacramento Transcript, 23 January 1851; California Daily Courier, 25 January 1851. For other examples see murder of Moore by Northup, Nevada Journal, 12 March 1858; murder of Michael Cummings by Michael Connor, Nevada Democrat, 3 March 1858; The People v Francis Moore, Supreme Court, filed 8 April 1857 (WPA 3507, California State Archives, Sacramento); The People v Terrence Smith, Supreme Court, filed 28 September 1864 (WPA 4944, California State Archives, Sacramento). 83 Nevada Journal, 1 April 1853.

274 gold field. The combination of these factors created norms and values in which violence was

tolerated and where so much violence resulted in the loss of life.

The saloon was the stage and alcohol the facilitator in almost all reports of violence.84 The editor of

the Nevada Journal noted that “men get excited by liquor, and then, under the magnified sense of

their prowess, go into a crowd to show off, perhaps to provoke a quarrel”.85 Reports such as the

following were common:

On Saturday night last some fellow whose daring had been considerably augmented by a

liberal use of king alcohol, stood in the street and fired one shot from his revolver , thro’ the

door of the El Dorado saloon.86

Even William Stewart, the District Attorney and later a United States Senator, was involved in violent

incidents at saloons. One incident in particular resulted in several men being “so badly cut about the

head that the services of a doctor were demanded”.87 The role of liquor consumption in fueling

violence, and of the saloon as a site of violence, is well illustrated by the murder of Alexander

McClanahan at Heywood’s saloon. On 21 February 1857, on a Saturday evening in Grass Valley

between 10pm and 11pm, Alexander McClanahan was sitting in the back room of Heywood’s saloon.

Francis Moore, accompanied by three or four men, entered the store and enjoyed 4 or 5 drinks.

McClanahan, who was smoking in the back room, got up to leave. As he moved towards the door,

Moore asked “what have you got against me?” Moore continued, “I think you refused to drink with

me,” adding that “if you are a man, defend yourself”. The store owner, Heywood, put his hand on

Moore and asked him to put down the pistol. According to Heywood, Moore pushed him slightly, but

84 The links between alcohol and violence have been recognised by Roger Lane, who suggests that in Philadelphia, “drunkenness was closely associated with assault”, Roger Lane, Violent Death in the City: Suicide, Accident and Murder in Nineteenth-Century Philadelphia (Cambridge, MA: Harvard University Press, 1979), p. 59. 85 Nevada Journal, 24 October 1852. 86 Nevada Journal, 10 March 1854. See also Nevada Journal, 2 June 1854 reporting that a man named Bill Brown stabbed a nearby gambler; Grass Valley Telegraph, 6 Jul7 1854, reporting a stabbing at Rough and Ready over a game of cards; Nevada Journal, 3 November 1854 reporting a stabbing at Aurora House; Nevada Journal 14 March 1856 reporting a stabbing at Washington; Sacramento Transcript, 26 July 1850, see the letter describing a quarrel between a “monte banker and a person betting”, the latter pulling out his pistol and aiming it at the dealer; Nevada Democrat, 4 April 1855, which described a shooting at a saloon where a number of shots were exchanged between a Peter Appleberry and Benjamin Henry; Sacramento Transcript, 12 April 1850, describing a stabbing affray. 87 Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 86-88.

275 put his pistol back in his pants. As Moore lowered his pistol, McClanahan left the store, saying to

Moore, “I’ll see you again”. Ten minutes later, as Moore was waiting behind the bar, McClanahan entered with his friend John Sale and another man. As soon as Sale walked past Moore, Moore drew his pistol and fired. Less than a second afterwards, there was a “flash” from McClanahan’s pistol, firing a ball into the stove at the end of the room. Another ball hit the lamp, plunging the room into darkness. The gunfight lasted about a minute, and at the end McClanahan had been shot. He was carried into a nearby barber’s shop and died soon afterwards.88

The use of deadly weapons in disputes often led to serious and mortal consequences. The importance of gun ownership in the social history of the United States is an issue that has attracted much controversy. Some historians have argued that gun ownership, and gun related homicide, was comparatively low until after the Civil War.89 An eminent historian of California has suggested that it was simply impractical for men in gold rush California to be constantly armed and that the business of mining “would have made carrying a gun a burden”.90 Nevertheless, it is clear that guns were an important part of life in Nevada County in the 1850s. A review of the newspaper reports provides numerous examples of firearms being flourished.91 The editor of the Nevada Journal commented on separate occasions that “the reckless use of firearms is getting too fashionable”92 and that “there is too much of that wanton display and braggadocio which consists in flourishing pistols and knives and uttering threats”.93 Citizens were encouraged to carry weapons. In the face of a perceived threat by

Mexican residents, the editor of the Nevada Journal implored citizens to “never admit to go armed,

88 The People v Francis Moore, Supreme Court, filed 8 April 1857 (WPA 3507, California State Archives, Sacramento). 89 Michael A. Bellesiles, Arming America: The Origins of a National Gun Culture (New York: Alfred A. Knopf, 2000). But note that the work of Bellesiles, particularly the rigour of his research, has been criticised by some historians. See, for example, the reviews of Robert H. Churchill, “Guns and the Politics of History”, Reviews in American History 29(3) (Sep., 2001) 329-337; Randolph Roth, “Guns, Gun Culture, and Homicide: The Relationship between Firearms, the Uses of Firearms, and Interpersonal Violence” The William and Mary Quarterly, 59(1) (Jan., 2002) 223-240. 90 Martin Ridge, “Disorder, Crime, and Punishment in the California Gold Rush.” Montana, the Magazine of Western History 49(3) (Autumn, 1999) 12–27. 91 Dr William Lenox was killed by a murderer who fired his pistol through the front window, Sacramento Transcript, 23 January 1851. See also shootings described in Grass Valley Telegraph, 6 July 1854; Grass Valley Telegraph, 13 July 1854; Nevada Journal, 8 September 1854; Nevada Journal, 1 February 1856; Nevada Journal, 29 February 1856; Nevada Journal, 14 March 1856; Nevada Journal, 21 March 1856; Grass Valley Telegraph, 18 March 1856; Nevada Journal, 18 April 1856; Nevada Journal, 25 April 1856; Nevada Journal, 13 June 1856; Nevada Journal, 26 June 1856; Nevada Journal, 18 July 1857; Nevada Journal, 8 August 1856; Nevada Democrat, 3 September 1856; Nevada Democrat, 15 October 1856; Nevada Journal, 7 November 1856. 92 Nevada Journal, 10 July 1852. 93 Nevada Journal, 24 October 1852.

276 and use their arms immediately on any hostile attitude assumed by these lawless villains”.94 Even

Judge Roberts of Rough and Ready township carried a Colt’s dragoon pistol in his saddle.95

Even if it is arguable that men did not carry firearms while working in the mines, the evidence suggests strongly that firearms were carried in saloons.96 One miner described a night when he saw a man “with a large revolver in his hand” push through a crowded Nevada City saloon. The man

“flourished his pistol, and breaking the breathless hush of sweet melody by a hoarse volley of bitter oaths, commenced firing at a man who faced us, and was, apparently, trying to reach the door”. Three men were killed and several were wounded.97 Even if a man was not carrying a weapon, it was relatively easy to procure one at short notice. In the previous example, when McClanahan left the bar after his altercation with Moore, he met with John Sale and borrowed his pistol. Similarly, when a bar keeper ejected a man for being intoxicated, the man “procured from a friend a revolver, alleging that he wanted to try it”.98 Peter Decker recorded an incident in his diary on 26 August 1850 that involved a Mr Henderson from Oregon and a Mr Badger of Alabama, the dispute arising from a game of cards.

Henderson called Badger a liar and Badger responded by knocking Henderson down and “drawing blood by repeated blows”. Henderson returned with a rifle and threatened to get his revenge until eventually “persuaded to let the matter rest”.99

Although violent crime was part of life in Nevada County throughout the 1850s, it is likely that the level of violent crime peaked in the early years of the decade. Unfortunately the records of the Court of Sessions between 1850 and 1856 were lost when the Nevada County courthouse was destroyed by fire. However, even if these records had been available, they may not have provided a reliable guide as to the level of violent crime. The small number of cases heard by the Court, combined with the

94 Nevada Journal, 15 November 1851. When John Elder was attacked by two men, he “drew a revolver and fired”, Nevada Journal, 19 June 1852; When L Davidson had an argument about the correct postage he armed himself with a pistol “not intending to use it, save in self defence, in case I was attacked”, Nevada Journal, 3 February 1854. 95 See reward notice, Nevada Journal 15 November 1851. 96 The potential for guns to elevate the severity of violence has been recognised by Roger Lane. He argues that “there is no question that the practice of carrying handguns affected the murder rate”. The revolver “multiplied the deadly potential in barroom brawls and street fights” with the result that “an incurable number of people were murdered in circumstances that earlier might have led to nothing more serious than a drunken punching match”, Lane, Violent Death in the City, pp. 61-62. 97 Bidwell and Steele, Echoes of the past about California, pp. 131-134. 98 Nevada Journal, 4 April 1852. 99 Decker, The Diaries of Peter Decker, pp. 230-231.

277 probable large number of unprosecuted offences, meant that any small change in the prosecution rate would have had a far more significant effect on the number of cases heard by the court than a rise or fall in the level of criminality. It is arguable that this is the reason for the slight rise in the number of prosecuted offences in 1860 (Figure 9.2). This interpretation is supported by the fact that commentators at the time reported a decline in violent crime in the second half of the 1850s and that newspaper reports of these crimes also decreased. In 1851, the then editor of the Nevada Journal,

Warren B. Ewer, noted many “brutal outrages, murders, and crimes of every hue”.100 By 1854, for example, it was remarked that “the fact must be apparent to everyone that this city for the past six months has been greatly reformed in the matter of quietude and sobriety. Scarcely ever now is there an instance of a street fight or other disturbance by day or night”.101

Nevada County became less violent during the 1850s because the factors that created a culture of violence were diluted by the increasing ‘civilisation’ and ‘morality’ of the town that increased in strength during the second half of the 1850s as a result of the increasing social stability of the region.

In 1850 in Nevada City, there were 2,624 males and only 59 females. By 1860, this had improved, to

2901 males and 778 females. By 1870 there were 2,692 males in Nevada and 1294 females.102 While it is true that the ratio of women to men remained low by 1860, this was accompanied by a growth in the number families, an increasing number of ‘godly’ people, and the growth of institutions that provided recreational alternatives to the saloons. The school age population of Nevada City increased by almost half between 1853 and 1856.103 By February 1856 there were 6 churches in Nevada City:

Methodist North, Methodist South, Episcopal, Presbyterian, Baptist and Catholic.104

The link between the changing demographics of Nevada County and developing social and moral norms was explained by the editor of the Nevada Journal. He argued that women arrived in Nevada

County to “begin the basis of a lasting prosperity – to entwine the ties of home about the heart”. In

100 Nevada Journal, 15 November 1851. 101 Nevada Journal, 30 June 1854. 102 Mann, After the Gold Rush, p. 224. 103 Mann, After the Gold Rush, p. 65. 104 Nevada Journal, 29 February 1856.

278 short, women were seen as “the mothers of a new empire”.105 Others argued that “we must have families here and make this land a home” and that women and children would develop in a miner a

“centralization of feelings” and a renewed concentration on law, education and religion.106 Luther M.

Schaeffer noticed the importance of establishing a moral order and recorded that “we had lived so many months without the refining influence of respectable women, that each of us felt glad to see our town improving, and women being added to the large crowd of men who needed something to restrain them in their frolics and boisterous conduct”.107

Although violence was clearly part of community life, the law was not considered to be unimportant, or not respected, by its citizens. Rather, the formal criminal law was modified in its application by commonly understood ‘norms’ as to what constituted ‘criminal’ behaviour. As the town matured, these public norms changed. When behaviour crossed the boundary of what was ‘criminal’, offenders were prosecuted. Nevada County was not violent because law was absent; it was violent because the application of the law allowed and tolerated a certain level of violence. In this sense, the application of the criminal law in Nevada County reflects the arguments of historians like Lawrence Friedman who have argued that the law was flexible enough to reflect the desires and morals of the community.

The difference, however, is that in the field of violent crime, the application of the law was not related to economic efficiency or the maximising of productivity. Instead, it was intimately related to social values and moral norms that were held by the wider community. When using the term ‘community’, however, it must be remembered that white males held power and influence in Nevada County. The social values and moral norms that gave the law its shape reflected existing racial and gendered power structures.

Property offences

In contrast to the tolerance of certain types of violence, life in Nevada County was characterised by a profound respect for private property. Citizens could read various ‘lost and found’ notices in each

105 Nevada Journal, 19 April 1851. 106 Mann, After the Gold Rush, p. 42. 107 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 78-79.

279 edition of the local newspapers. For example, on 11 October 1851, the Nevada Journal advertised that a grey horse and brown mare had been abandoned at the Indiana House, that a small black mule with Spanish brand had been found three quarters of a mile east of Gold Run, and that a dark bay horse with black feet had been also located.108 In September 1851, a Mr Prior advertised that he had

“taken up a brown mule, badly saddled, marked Spanish brand on both hips. The owner can have him by calling at Rock Creek Ranch, proving property and paying charges”. Another advertisement called attention to a “brown mare mule, branded A H on the right hip”.109 In August 1855, J. S.

Montgomery advertised that a stray mule had come into his premises around 10 July.110 Citizens also notified the public that they had lost items of property, such as Allen Wiley’s small leather wallet that contained gold specimens and a number of notes. 111 The respect for personal property was mirrored in the lack of tolerance of property crime of any type. When commenting on a murder trial in

November 1852, the editor of the Nevada Journal noted that “a man may be hung for stealing $50, and not for wanton murder”.112 Miners believed that if property was stolen, “justice was meted out quick and sure” (either by the courts, or by miners themselves).113

The respect for property among the established population did not mean that property was necessarily safe. Reports of property crime frequently appeared in the newspapers.114 Simon Lucy wrote to his sister in 1856, describing an incident where “there was a man robbed right close to John Magley’s

Cabin”. The robbers took a revolver and other things of value. Lucy professed that “I cannot tell you of all the occurrences for they happen daily”.115 In a later letter, Lucy wrote that “there are a plenty of robbers here, it is almost an everyday occurrence to hear of someone getting robbed or killed for

108 Nevada Journal, 11 October 1851. 109 Nevada Journal, 13 September 1851. 110 Nevada Journal, 9 August 1855. 111 Nevada Journal, 11 October 1851. 112 Nevada Journal, 19 November 1852. 113 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 71-72. 114 Nevada Journal, 6 November 1851, which reported that “while two miners working a tom on the ravine at the foot of Oregon Hill, on Tuesday last, were at dinner, some unknown persons robbed there [sic] riffle box of the proceeds of the previous work, being about two hundred dollars”; Nevada Journal, 23 October 1851, which reported that Dr Daniel Mead left his home for around 10 minutes, during which time his door was “burst open” and “a some [sic] in gold dust somewhat over 3,000 dollars stolen from a trunk”; Nevada Journal, 16 October 1851, which reported that a Richard Smith was tried and convicted of stealing a small sum of money from the roulette table at Baker’s Saloon. 115 Letter from Simon S Lucy to his sister, Nevada City, 18 October 1856.

280 money”.116 By the middle of the 1850s, the Nevada Democrat reported that “a great deal of thieving has been carried on in this neighborhood recently, and the people should be on the lookout for their property”.117 In Nevada City, the cry was “Look out for Robbers! It behoves our citizens to be upon alert for a gang of midnight villains who are prowling about this vicinity”.118

The courts of Nevada County saw almost as much property crime as violent offences against the person. Compared to the 93 violent offences against the person, the Court of Sessions heard 91 property offences between 1856 and 1863 (Figure 9.5). This is consistent with the observations of

John Wunder, who found that on the northwest frontier violent crime and property crime made up 45 per cent and 40 per cent respectively of prosecuted criminal offences.119 Property offences can be roughly divided into petit larceny, grand larceny, burglary and robbery. The distinction was based on the value of the property stolen and the method of the offence. Petit larceny was defined as stealing the “personal goods or property of another, under the value of fifty dollars”.120 If the value of the goods exceeded fifty dollars, the crime was defined as grand larceny.121 Robbery involved some element of force and was defined as “the felonious and violent taking of money, goods, or other valuable thing from the person of another, by force or intimidation.”122 Burglary involved the illegal entering of a dwelling to commit larceny.123 Logic suggests that offences of larceny would be committed more often that cases of robbery or burglary. A consistent prosecution rate would mean, therefore, that these less serious offences should outnumber the more serious offences. This theory is confirmed by records of the Court of Sessions. This suggests that discretion played a less significant role in the prosecution of property offences than it did in relation to violent offences. Although

116 Letter from Simon S Lucy to his sister, Rough and Ready, 9 December 1857. 117 Nevada Democrat, 2 May 1855. 118 Nevada Democrat, 16 August 1854. Violent robberies also occurred in Grass Valley. See, for example, Nevada Democrat, 22 February 1854; Nevada Democrat, 6 April 1854; Nevada Democrat, 9 August 1854,which reported that a “gang” of robbers stole $50 and $130 in two robberies in Little Deer Creek. 119 Wunder, Inferior Courts, Superior Justice, p. 149. 120 s61, An Act concerning Crimes and Punishments (1850). 121 s60, An Act concerning Crimes and Punishments (1850). 122 s59, An Act concerning Crimes and Punishments (1850). 123 S58, An Act concerning Crimes and Punishments (1850).

281 stories of “daring robberies” were more likely to be reported in the newspapers,124 the majority of the cases heard by the Court of Sessions were for larceny or grand larceny.125

Figure 9.5: Property offences heard by the Nevada County Court of Sessions, 1856-1863

Grand larceny 36

Burglary 23

Robbery 9 Arson 8 Petit larceny 5

Forgery 3 Embezzlement 1 Total 85

Source: Court of Sessions Minute Book, Doris Foley Historical Library, Nevada City, California

Despite a more consistent pattern of prosecution, it is still likely that the cases of larceny were underrepresented in the records of the Court of Sessions. This was for two reasons. The first was that the nature of the offence meant that the victim did not have any contact with the offender. In more serious cases, such as robbery, the victim may have been able to recognise, or at least describe, the offender. In less serious cases, such as larceny, the offender was usually anonymous. The second reason is that the Justice Courts had jurisdiction to hear cases of petty larceny, but not more serious offences. This may have slightly reduced the proportion of minor offences heard by the Court of

124 Robbery of articles amounting to $200, Nevada Journal, 25 September 1851; Robbery of $3,500, Nevada Journal, 27 September 1851; robbery of $3,000 from Dr Daniel Mead, Nevada Journal, 23 October 1851; “a most daring robbery”, Nevada Journal, 26 February 1852; robbery of $400 from a cabin, Nevada Journal, 1 April 1852; robbery of $350 at the house of Mrs Glynne, Nevada Journal, 22 May 1852; robbery of $500, Nevada Journal, 22 May 1852; robbery of various articles in the house of Rev. Warren, Nevada Journal, 29 May 1852; robbery of $400 worth of slugs, Nevada Journal, 3 December 1852; highway robbery at Rough and Ready, Grass Valley Telegraph, 2 February 1854; a “bold robbery” of $6,000, Grass Valley Telegraph, 9 March 1854; theft of revolvers, Grass Valley Telegraph, 23 March 1854; highway robbery, Nevada Journal, 6 June 1856; a “desperate attempt” at highway robbery, Nevada Journal, 15 August 1856; a “daring robbery”, Nevada Journal, 12 September 1856. 125 Grand larceny was defined as the stealing of property valued at over $50. See Chapter 99, An Act concerning Crimes and Punishments (1850).

282 Sessions. However, given the small number of criminal cases heard in the Justice Courts, any effect would have been minor.126

Property offences could be difficult to prosecute, particularly those minor offences where the identity of the offender could only be ascertained after detailed investigation. This difficulty is reflected in the conviction rates for larceny offences. Of the 44 larceny cases heard by the Court of Sessions between

1856 and 1863, 13 offenders were found not guilty, and no verdict was recorded in a further 8 (it is likely that the charges were dropped but not recorded in the minute book). The fact that a conviction was recorded in only 52 per cent of larceny cases suggests that these cases were difficult to prove

(Figure 9.6). Convictions were even more difficult to obtain when a generic item such as gold dust was stolen because it could not be easily identified by the victim.127

Figure 9.6: Verdicts in cases of larceny heard by the Nevada County Court of Sessions, 1856-1863

No verdict 8 Not guilty 13 < 2 months 4 imprisonment

< $50 fine 2 < 2 years 11 imprisonment 2 – 5 years 4 imprisonment

5+ years 2 imprisonment

Total 44

Source: Court of Sessions Minute Book, Doris Foley Historical Library, Nevada City, California

126 Section 90, An Act concerning the Courts of Justice of this State, and Judicial Officers. This Act was amended from time to time, but the law in relation to the jurisdiction did not change. See, Section 69, An Act concerning the Courts of Justice of this State and Judicial Officers, Ch. 180, Laws of the State of California, 4th session (1853). 127 For examples, see the theft of $200 of gold from a riffle box, Nevada Journal, 6 November 1851; a “daring robbery” of $4,400 of gold dust, Nevada Journal, 26 February 1852; theft of $1,000 in dust, Nevada Journal, 17 July 1852.

283 In contrast, of the 31 burglary and robbery cases, a conviction was recorded in over 67 per cent of cases (Figure 9.7). The fact of the unlawful entrance, or violence leading to the stealing of the property, meant that there was more evidence to bring before the court, which increased the likelihood of a conviction. The case of Wallace Gehr neatly illuminates the nature of this type of serious property crime and the contrast between it and cases of larceny. On 24 January 1857, Alexander

McClanahan (the same man who perished by the pistol of Francis Moore) and John Sale were asked by William Banks, the Collector of the Foreign Miners Tax for Nevada County, to help him to collect that tax in the area around Wolf Creek. Banks gave to McClanahan a sack to carry licences and purses to carry the money received from the miners. During the day, McClanahan and Sale worked through Wolf Creek, collecting around 60 dollars, mostly in gold dust. Around one hour before sundown, McClanahan placed the money in a buckskin purse and he and Sale began to travel back towards Grass Valley. They travelled together as far as Conway's Mill (about 2 miles from Grass

Valley) when they parted company. Sale rode on to Grass Valley and arrived there about half an hour later.

Figure 9.7: Verdicts in cases of robbery and burglary heard by the Nevada County Court of Sessions, 1856-1863 No verdict 4 Not guilty 6 2 -5 years 10 imprisonment

6 – 10 years 3 imprisonment

10+ years 1 imprisonment Total 31

Source: Court of Sessions Minute Book, Doris Foley Historical Library, Nevada City, California

About an hour after they separated, Sale met McClanahan in Grass Valley. McClanahan told Sale that Wallace Gehr, a Nevada City blacksmith, had robbed him at gunpoint and taken the purse full of

284 money as well as the pistol that Sale had loaned to McClanahan. The next morning Sale set out after

Gehr. He soon found him on the Marysville Road, about 1.5 miles out of Grass Valley. Brandishing a pistol, Sale rode up within 12 or 13 feet of Gehr, and announced that he wanted to take him to Grass

Valley. Sale and Gehr arrived in Grass Valley at around 10am on the Sunday morning, and they immediately proceeded to the office of Judge Hamiston, the Justice of the Peace for the township of

Grass Valley. The Judge searched Gehr and found the pistol and a purse full of gold dust and $7 worth of coins. Gehr said that he had won the pistol in the game of cards, but did not offer any explanation for the purse full of money.128 Gehr’s case was sent to the Court of Sessions for trial, where he was convicted and sentenced to imprisonment for 4 years.

Prosecution of property crime relied heavily on the victim to pursue the offender, arrest the offender and then bring him or her before the courts. Even in the example above, it was not the Sheriff or

Constable who pursued Gehr, but Sale, the associate of the victim. The fact that the offence occurred at gunpoint meant that Sale was able to identify Gehr. Prosecution by the public meant that if prosecution became difficult (if the offender left the County), or it was difficult to discover the identity of the offender, the prosecution might be dropped. At the same time, an act of violence was only physically tangible. A victim of violence could ignore, or accept the act of violence. Offences were likely prosecuted out of a moral sense of indignation or injustice. It was unlikely to result in an economic loss unless the victim was so injured as to be unable to work. On the other hand, a victim of property crime always suffered a tangible economic loss. Sale and McClanahan, for example, had to account to Banks for the stolen money. There was always a direct economic motivation to track the offender and bring him to justice. At the same time, however, if the economic loss was small, it may have been ignored if it would cost more to search for the offenders. Nevertheless, the prosecution of property crime was more sensitive to economic considerations while the prosecution of violent crime depended more on moral norms.

128 The People v Wallace Gehr, Supreme Court (WPA 1508, California State Archives, Sacramento). See, in particular, the testimony of John Sale and William Banks.

285 The punishments awarded to convicted offenders also reflect the seriousness with which Californians viewed property crime. Under the first criminal legislation passed in April 1850, an offender convicted of petit larceny was liable to be fined up to $500, be imprisoned for up to 6 months, or both.129 An offender convicted of grand larceny, robbery or burglary could be imprisoned from between 1 and 10 years.130 The punishments for property offences were amended in 1851 and again in 1856. The 1851 amendments made punishments even more severe: an offender could receive up to

50 lashes for committing larceny131 and could receive a sentence of death for committing robbery or grand larceny.132 The 1856 amendments, however, slightly reduced the seriousness of the punishment. After the amendments, an offender could receive a maximum of a life imprisonment for robbery, and up to 14 years imprisonment for grand larceny. Corporal punishment for petit larceny was also removed as a sentencing option.133

The Nevada County courts took advantage of the full range of punishments. Although the records of the Court of Sessions have been lost prior to 1856, there is evidence that corporal punishment was used to punish petit larceny offences. Capital punishment was also invoked for the crime of grand larceny at least once in Nevada County when John Barrett was convicted of stealing $357 of dust and coin at Stocking Flat. Barrett was hung on 16 July 1852 at Deer Creek. The execution of Barrett had great symbolic importance. As an early history of Nevada County explained, “deliberate stealing was considered one of the worst crimes. Gold was king and everyone was putting forth his utmost effort to secure as much as possible of the royal dust, and he who deliberately robbed him of that which he had sacrificed so much was considered far more of a criminal than he, who in the heat of passion, shot down the object of his wrath”.134 It would be a mistake to take comments like this too far, but it is clear that serious property crime was treated at least as seriously as the most serious of violent crimes.

Perhaps the best illustration of this is the offence of assault: an offender convicted of the crime of

129 Section 61, An Act concerning Crimes and Punishments (1850). 130 Sections 58, 59, 61, An Act concerning Crimes and Punishments (1850). 131 Section 3, An Act concerning Crimes and Punishments (1851). 132 Sections 1 and 2, An Act concerning Crimes and Punishments (1851). 133 Sections 6, 7, 8, An Act concerning Crimes and Punishments (1856). 134 Wells, History of Nevada County, p. 108.

286 assault could receive a maximum sentence of 3 months, but an offender who committed assault coupled with the ‘aggravating factor’ of an intent to commit larceny could receive a sentence of up to

14 years. The verdicts of the Court of Sessions in the second half of the 1850s confirm this. If convicted of larceny, an offender could expect to be imprisoned for between 1 and 2 years, with 2 offenders during this time being imprisoned for over 5 years (Figure 9.6). Burglary and robbery were treated even more seriously. An offender convicted of these crimes could expect to be imprisoned for between 2 and 5 years, with 3 offenders receiving over 10 years imprisonment (Figure 9.7).

Property crime was not tolerated to any extent in Nevada County. Where an offence was not prosecuted, this was usually a result of the difficulties of apprehending the offender. Unlike the law in relation to violence, the law in relation to property was directly related to economic growth. Gold mining as a business could only prosper if miners felt that the gold was safe. In this sense, the law of property crime directly reflected the economic requirements of miners.

Policing Nevada County

Policing in Nevada County was the responsibility of elected county, township and city officials.135

Each county elected a sheriff136 whose role was to act as conservator of the peace.137 His duties included arresting a person who had committed, or was likely to commit, a public offence and to

“prevent and suppress all affrays, breaches of the peace, riots, and insurrections, which may come to his knowledge”.138 The Sheriff was also required to attend each sitting of the County Court, the Court of Sessions, and the District Court when it sat in Nevada County.139 This amounted to 13 court sessions each year at which the Sheriff was required to attend. It was also his duty to serve on parties any court documents that were delivered to him.140 A sheriff could appoint as many deputies as he

135 Sections 10-14, An Act to regulate elections, Ch. 38, Laws of the State of California, 1st session (1850). On policing in the United States, see Eric H. Monkkonen, Police in urban America, 1860-1920 (Cambridge: Cambridge University Press, 1981), p. 35; James F. Richardson, The New York Police: Colonial Times to 1901 (New York: Oxford University Press, 1970), p. 18. 136 Section 15, An Act Concerning Offices, Ch. 104, Laws of the State of California, 2nd session (1851). 137 Section 4, An Act to prescribe the duties of Sheriffs, Ch. 106, Laws of the State of California, 1st session (1850). 138 Section 5, An Act to prescribe the duties of Sheriffs (1850). 139 Section 5, An Act to prescribe the duties of Sheriffs (1850). 140 Sections 6 and 7, An Act to prescribe the duties of Sheriffs (1850).

287 thought proper.141 In addition, each county was divided into a number of townships,142 each of which could elect one constable.143 A constable had similar duties to the sheriff, but was required only to act as a conservator of the peace within his township, and attend each sitting of the Justice Court within his township.144

A sheriff, assisted in each township by a constable (and their respective deputies), could not hope to capture all offenders and prosecute all breaches of the peace, while also attending the relevant court sessions and taking care of the myriad of administrative duties. For this reason, Aaron Sargeant argued that “the ordinary facilities in the hands of the officers of justice in this State are not sufficient to detect and punish the villains in our midst”.145 Sheriffs and constables recognised this problem and offered rewards for the apprehension of criminals, or the return of property. When William Harrison was killed by James Carrigan, for example, the Sheriff offered a reward of $1,000.146 Private citizens also understood the limits of their law enforcement authorities. When a pistol belonging to Judge

Roberts of Rough and Ready was stolen from his saddle, he posted a reward of $100 for “any information which may lead to the discovery of the thief and the return of the property”.147 Similarly, when the cabin of Daniel Waterman was robbed of $4,500 of gold dust, Waterman offered a reward of

$2,000 “for the return of the money and the robber, or a liberal reward for any information on the subject”.148 In this way, law enforcement authorities acted in an informal partnership with members of the public.

The policing of the major towns in Nevada County was no more successful. In California, an incorporated city could make its own laws and put in place a City Marshal, who had power to “arrest

141 Section 2, An Act to prescribe the duties of Sheriffs (1850). 142 Nevada Journal, 11 April 1852. See also Wells, History of Nevada County, p. 57. 143 Section 17, An Act concerning Offices (1850). 144 Section 8, An Act to prescribe the duty of Constables, Ch. 112, Laws of the State of California, 1st session (1850). 145 Nevada Journal, 20 November 1851. See also Nevada Democrat, 8 February 1854. 146 Nevada Journal, 5 January 1855. 147 Nevada Journal, 15 November 1851. 148 Nevada Journal, 26 February 1852. For further examples, see reward of $25 for return of a mare, Nevada Journal, 1 May 1852; $200 for the arrest of a thief accused of horse stealing, Nevada Journal, 10 July 1852; $500 for the return of thieves alleged to have stolen $1000 in gold dust, Nevada Journal, 17 July 1852; $50 reward for the return of a painting and the thief, Nevada Journal, 6 January 1854.

288 all persons guilty of a breach of the peace, or a violation of any ordinance”.149 This was part of the larger development in the second half of the nineteenth century of a uniformed and professional police force in major cities in the United States.150 This trend was not reflected in Nevada County, however, because the development of police forces was linked directly to the growth of city government.151

Nevada City was first incorporated in March 1851,152 but was dissolved in 14 February 1852.153

Another attempt was made at city government in 1853 when the Court of Sessions was petitioned to incorporate the town. This was also unsuccessful when, in 1856, the Supreme Court found the incorporation to be unconstitutional. It was not until April 1856 that Nevada City was permanently incorporated.154 With the exception of a brief period during 1855 when Grass Valley was incorporated, Nevada City was the only incorporated town or city in Nevada County.

Even during periods when Nevada City was incorporated, the Nevada City Marshal did not have the time, nor did he have the resources to investigate every crime, suppress every breach of the peace, and prosecute every contravention of the regulations. The City Marshal was more a symbol of law and order than any real force of law and order. This was expressly noted by the editor of the Nevada

Journal who advised “all persons to conduct themselves with sober demeanor and great gravity, when they meet in the streets a tall, fine-looking individual, with a beaver hat and portentous looking cane”

The newspaper advised readers that, “[i]t might … be well to touch your hat to him”.155

The absence of an adequate police force meant that citizens often took the law into their own hands.

In justifying the private enforcement of the law through what became known as ‘vigilantism’, many of the ‘vigilantes’ referred to principles of democratic government and natural justice. Rather than vigilantism being the antithesis of law, in the minds of citizens it was a method of asserting the rule of

149 Article IV, Section 8, An Act to incorporate the City of Nevada, Ch. 82, Laws of the State of California, 2nd session (1851). 150 Monkkonen, Police in urban America; Richardson, The New York Police: Colonial Times to 1901, particularly chapter 2. 151 Monkkonen, Police in urban America, p. 55. 152 An Act to Incorporate the City of Nevada (1851). Similar legislation was passed to provide for the incorporation of towns, with a Board of Trustees responsible for passing laws for the governance of the town, An Act to provide for the incorporation of Towns, Ch. 48, Laws of the State of California, 2st session (1850). 153 An Act repealing the charter of the City of Nevada, and to provide for the disposition of the property and payment of the debts of said city, Ch. 112, Laws of the State of California, 3rd session (1852). 154 Wells, History of Nevada County, p. 82. 155 Nevada Journal, 22 February 1854.

289 law. Aaron Sargent explained the jurisprudential arguments for vigilantism by arguing that the social condition in California “creates the necessity” for a “constantly organized body of men” to be used partly as an intimidatory power, and partly to dispense justice.156 Vigilantism was not contrary to law, he argued, because “the end of the law is the preservation of life and property. Law is instituted because it is deemed the most available means to secure these. When the ordinary process of law fails to secure the end of its adoption, the people by whose consent all law exists have a right to take measures tending to the same purpose as law”.157 It was necessary, in Sargent’s view, for a

“constantly organized body of men” to be used partly as an intimidatory power, and partly to dispense justice.158 Simon Lucy took a less jurisprudential, but no less forceful approach when he declared that

“our magistrates are murderers, our judges are drunkards” and that “these things were the cause of our vigilance committee of San Francisco and I wish there were these committees throughout the state of

California, for law is nothing but a shield for the murderer, gambler and thief”.159 Vigilantism was justified as a fairer, more efficient, and more effective form of law.

This private enforcement of the law was common in Nevada County throughout the first half of the

1850s, particularly 1850 and 1851. At first it proceeded informally. Citizens came together in response to a particular crime and then disbanded after the punishment had been administered. In

1850, a man was accused of stealing a nugget worth $312 from a miner. He was tied to a tree and flogged.160 In July 1850, a man alleged to have stolen a mule was tried by a ‘jury’ and given 25 lashes.161 At Grass Valley in November 1850, a man called Napoleon Collins was also accused of stealing a mule. He was tried, whipped and then expelled.162 In June 1852, a man was accused of stealing a horse from a man in Mississippi Valley. He was convicted by a mob and sentenced to receive 99 lashes and ordered to leave immediately.163 In December 1852, a trivial dispute between a

156 Nevada Journal, 20 November 1851. 157 Nevada Journal, 20 November 1851. See also Alta California, 8 March 1851. 158 Nevada Journal, 20 November 1851. 159 Letter from Simon S Lucy to his sister, Nevada City, 18 October 1856. 160 Shinn, Mining Camps: A Study in American Frontier Government, p. 228; Wells, History of Nevada County, p. 104. 161 Sacramento Transcript, 26 July 1850. 162 Wells, History of Nevada County, p. 107. See also Nevada Journal, 9 October 1851. 163 Nevada Journal, 26 June 1852.

290 man named Burns and Doyle resulted in Doyle shooting and wounding Burns. The citizens were “so exasperated that they captured Doyle and led him out to the north of the town to hang him”.164

Property offences could be treated just as seriously as violent offences. Hugh McGill wrote that after a fire in 1855 a man suspected of sparking the blaze would have been hanged if it had not been for the

Sheriff who arrived with thirty men on horseback to guard him from the mob.165 One miner wrote that “I have seen, at a distance, men flogged for committing crimes, and then dumped out of camp … the culprit, if caught, was summarily dealt with”.166 Richard Oglesby wrote that “I was present one afternoon, just outside the city limits and saw with painful satisfaction, as I now remember, Charley

Williams … whack three of our fellow citizens over the bare back twenty-one to forty strokes, for stealing a neighbor’s money. The multitude of disinterested spectators conducted the court”.167 In

April 1851, a trial of three men named Allen, Miller and Ridgely for stealing $2000 worth of gold dust from J. Chambers’ butcher shop on Broad Street was conducted. The men were found guilty and publicly whipped. The ‘trial’ was held in the back of the National Hotel.168 Luther M. Schaeffer noted the nature of this “summary justice” and commented that “if persons think this harsh and cruel, they must only place themselves in a country without laws, without proper courts of justice, and then

‘circumstances alter cases’”.169

Rather than forming on an ad hoc basis in response to individual crimes, the increasing need for a permanent law enforcement body meant that citizens began to organise themselves into more formal, standing, vigilance committees. In some cases, the committees acted as both police and judiciary. In other instances, the vigilance committee performed a policing role, but left the trial of the prisoners to

164 Nevada Journal, 3 December 1852. For other early incidents, see the formation of a “committee of justice” at Rough and Ready, Wells, History of Nevada County, p. 107; a man named Jones was whipped for breaking into a store at Newtown, Wells, History of Nevada County, p. 107; A man at Rose Bar received 20 lashes for stealing, Nevada Journal, 3 December 1852; a man was whipped for stealing flour in Nevada City, Wells, History of Nevada County, p. 107; a man was accused of having stolen $300, Shinn, Mining Camps, p. 228, Wells, History of Nevada County, p. 98; whipping of a thief, Nevada Journal, 24 July 1852; 20 lashes for stealing a revolver, Nevada Journal, 10 June 1853; a man was whipped for being “in possession of property for which he could give no account”, Nevada Journal, 12 August 1853. 165 Letter from Hugh R McGill, Nevada City, 25 June 1855. 166 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 71-72. 167 Wells, History of Nevada County, p. 81. 168 Wells, History of Nevada County, p. 98. 169 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 71-72.

291 the state sanctioned courts.170 In all cases, it is immediately noticeable that the vigilance committees copied formal and well understood legal processes in order to lend some dignity to their activities and preserve the appearance of the rule of law. The leaders of these vigilance committees were careful to ensure the perception of due process. Members were “assigned tasks in military fashion” and

“punishment was meted out only after a trial that was made closely to resemble legitimate processes”.171 Vigilantism in this sense did not disregard the law. Rather, vigilance committees were designed to better perform the functions of the law. This can be seen clearly at a meeting at Grass

Valley on 17 November 1851. The purpose of this meeting was to form a committee to respond to reports of a number of murders in and around Marysville.172 Reflecting the formality of the occasion,

Judge Bryan took the chair and a meeting commenced to discuss the subject of the recent murders, a subject which “called forth remarks and most earnest appeals”. The meeting unanimously resolved that “the late murders committed in California are most alarming”, and that 20 men be enrolled for

“immediate action in arresting all persons suspected of the crimes lately committed”.173 Five men were appointed to draft a constitution for the newly formed vigilance committee, and within 20 minutes, all positions in the committee had been filled and officers appointed. The committee immediately went to work. When news of the murder of a man on Bear River reached them, “a party of men went out from Grass Valley … to investigate the affair”. The party of men was under the command of Mr J. S. Price who held the position of Lieutenant of the Grass Valley Vigilance

Committee (again, such a position and rank lent the Committee a degree of formality). The Vigilance

Committee found three men at Jones’ Bar on Bear River, arrested them, and took them back to

Auburn where they faced a formal court.174

The Grass Valley Vigilance Committee was not the only committee formed during this period.

Another vigilance committee was formed in March 1852. On 7 March, a number of citizens gathered at the Grass Valley House. The meeting resolved that “the neighborhood has been greatly annoyed by

170 See for example the trial of the “Bear River murderers”, Nevada Journal, 4 December 1851. 171 Paul, California Gold, p. 207. 172 For a report of these murders, see Nevada Journal, 15 November 1851. 173 Nevada Journal, 20 November 1851. 174 Nevada Journal, 29 November 1851; Nevada Journal, 4 December 1851.

292 the riotous conduct of negroes, disturbing the peace and harmony of our citizens, and more particularly the families among us”. The meeting therefore resolved that “if the law is too slow in its operation,” then the committee would abate the nuisance by force.175 Similarly, the miners of Oregon

Hill and Ravine and Buckeye Hill Ravine formed a Vigilance Committee to put a stop to “sundry robberies” that had been committed in their cabins while they were at work. The Committee resolved that “any man found stealing shall be seized by the miners of these Hills and Ravines, and if adjudged and found guilty shall be hanged”.176

Despite attempts to clothe these vigilance committees in the “full trappings of judge-and-jury trial”,177 their rule remained arbitrary and potentially dangerous. William Stewart described one such committee: “I observed a company of men, fifty or more, leading a fine-looking man, six feet tall and stripped of all clothing except his pantaloons, evidently for the purpose of whipping him, as one of the party carried a huge horse whip.”178 Stewart intervened and saved the man from an unjust punishment as it quickly became clear that he was not the offender and that there was little evidence to support the prosecution. As early as 1852, the editor of the Nevada Journal noted the dangers inherent in vigilantism. Although supporting the institution, he argued that it was sometimes better “to bear with a little evil in the tardy workings of judicial operations, than to risk the great liability of an excited multitude doing injustice to innocent persons suspected of crime”.179 He pleaded with vigilance committees to ensure that their actions were dictated by “a strict sense of justice” and to avoid “the excited turbulence of a mob”.180

175 Nevada Journal, 13 March 1852. 176 Nevada Journal, 12 June 1852. See also the private watch by the citizens of Broad Street to protect their collective property, Nevada Journal, 15 November 1851; Nevada Journal, 17 July 1852; When $4,400 of gold dust was stolen a cabin, the solution was “some organization from which more prompt and efficacious search can be made for their detection”, Nevada Journal, 26 February 1852; when the “barefaced robberies” that occurred in 1854 indicated “sufficient boldness”, the editor of the Grass Valley Telegraph was moved to ask for a “corporation, vigilance committee, or something of the kind”, Grass Valley Telegraph, 6 April 1854; reference to “the Police of Vigilance”, Nevada Journal, 3 July 1852. 177 Paul, California Gold, p. 204; Brown, Strain of Violence: Historical Studies of American Violence and Vigilantism. For other examples of frontier vigilantism, see Helena Huntington Smith, The War on Powder River: The History of an Insurrection (Lincoln: University of Nebraska Press, 1966). 178 Stewart, Reminisces of Senator William M Stewart of Nevada, pp. 82-84. 179 Nevada Journal, 5 June 1852. 180 Nevada Journal, 12 June 1852.

293 There is little evidence about who the victims of vigilantism were in Nevada County, but it is likely that minority groups were targeted. Mexicans were considered to be the cause of much violent crime.

The editor of the Nevada Journal wrote that “miscreant Mexicans dabble their hands in human gore as a pastime, slaying with fiendish delight”. Any Mexican should be “encountered with suspicion,” he argued, and he presumed that “we presume six-eights [sic] of all the murders that have been committed on California soil have been by foreigners, and mostly by those speaking the Castillian tongue. Extermination of such Ishmaelites is the only safeguard of society, and every one of them put out of the way is a public benefit”.181 When four Mexicans arrived in Nevada County who allegedly answered the description of certain murderers, it was noted that “in such a case a vigilance committee has an opportunity for prompt and effective action”.182 When it came to property crime, however, it is possible that immigrants from Australia were the scapegoats. The editor of the Nevada Journal wrote that “public indignation has been frequently and justly poured on the heads of Sydney villains, who have committed depredations on property”.183 Similarly, when Grass Valley was “aroused of late by midnight revels, outcries of murder, throwing of stones, and threats of shooting”, it was the Sydney

‘ducks’ who wore the blame.184 Native Americans were also dealt with particularly harshly. In

November 1851, the Nevada Journal reported that Indians were responsible for an arrow being “shot into the cabin of Mr Poore” and the theft of several valuable horses. As a consequence “a party of 70 men went … in search of the Indians connected with these outrages, swearing vengeance on the whole race if the guilty are not given up to them”.185

By the second half of the 1850s, as local government was strengthened, and the County’s ‘moral character’ became stronger, criticisms of vigilantism emerged. The Nevada Democrat published a lengthy editorial in May 1856. The editor noted that vigilantism stemmed from “a disregard of the constitution and the laws, and the obligation [that rested] upon every member of society to respect and maintain them.” Those who lent “their countenance to encourage the usurpation by the multitude of

181 Nevada Journal, 15 November 1851. 182 Nevada Journal, 20 November 1851. 183 Nevada Journal, 15 November 1851. 184 Nevada Journal, 26 June 1852. 185 Nevada Journal, 27 November 1851.

294 the delicate and sacred duties conferred upon the ministers of the law” were regarded as “no less

enemies to society, than the outlaw who openly sets them at defiance”. The editor concluded that “it

may be said that a Vigilance Committee may act as an auxiliary to the authorities without usurping

their powers. It is the motive which prompts to such organizations and the possibility that they may

not know their own purposes against which we inveigh”.186

Public regulation

The policing of public morality in Nevada County was distinct from the policing of crime against the

person and property crime. Violent crime and property crime usually had an identifiable victim,

whereas the victim of public order offences was usually considered to be the morality of the public in

general. William Novak has argued that this type of public regulation dominated the domain of social

and economic policymaking in the nineteenth century. Novak argues that at the “heart of the well-

regulated society was a plethora of bylaws, ordinances, statutes and common law restrictions

regulating nearly every aspect of early American economy and society”. Regulation included rules

relating to public safety, the construction of an economy, the policing of public space and restraints on

public morals.187 While Novak may be correct that the public welfare was an important policy

consideration, any ‘regulation’ of public morals in Nevada County owed more to the development and

proliferation of popular social norms than to a ‘top down’ imposition of regulation. This was a result

of piecemeal legislation, weak town government, and an inadequate police force.

Public regulation in Nevada County emanated from two sources: the Californian legislature; and the

ordinances passed by town governments. In 1850, for example, the Californian legislature passed

legislation to regulate public ferries,188 to prevent obstructions in navigable streams,189 to regulate the

186 Nevada Democrat, 21 May 1856; For other criticisms of vigilantism, see Paul, California Gold, p. 205, citing Sacramento Daily Union, 11 January 1855, Alta California, 12 August 1852. 187 Novak, The People’s Welfare, p. 1. See generally also Novak, “The Myth of the ‘Weak’ American State”. 188 An Act creating and regulating Public Ferries, Ch. 35, Laws of the State of California, 1st session (1850). 189 An Act to prevent Obstructions in Navigable Streams, Ch. 74, Laws of the State of California, 1st session (1850).

295 erection of fences,190 and to regulate foreign miners in California.191 Incorporated cities and towns also had broad powers to regulate for the public good and make laws:

to prevent and remove nuisances; to provide for licensing regulating or restraining theatrical

amusements within the City; to provide for licensing any or all business not prohibited by

law; … to regulate and establish markets; to establish a board of health; to cause the streets to

be cleaned and repaired; to establish a fire department, and to make regulations to prevent and

extinguish fire; … to establish and regulate a Police; to prevent the introduction and spreading

of diseases; and to pass such other by-laws and ordinances for the regulation of the Police of

such City as they may deem necessary.192

Under this legislation, Nevada City passed ordinances concerning matters such as disturbances of the peace, ‘furious riding’, throwing rubbish in the streets and the keeping of gun powder.193

Novak’s argument about the prevalence of public regulation is based on his review of a staggering number of regulations and ordinances that operated throughout the United States. However, his argument must be considered in the context of the fact that only incorporated cities and towns had the power to make ordinances. As has been discussed, throughout the 1850s Nevada City was the only incorporated city or town in Nevada County (with the exception of Grass Valley, which was incorporated for only a brief period). This meant that for much of Nevada County, the State of

California and the Federal Government were the only legislative bodies with the power to regulate.

A second corollary to Novak’s argument is that the mere presence of regulations on the statute books does not tell the true and full story about public regulation. It is one thing to make regulations, but entirely another to enforce them. When Nevada City was first incorporated in March 1851,194 for

190 An Act concerning Lawful Fences, and Animals trespassing on Premises lawfully enclosed, Ch. 49, Laws of the State of California, 1st session (1850). 191 An Act for the better regulation of the Mines, and the government of Foreign Miners (1850). See also An Act concerning Toll Bridges, Ch. 10, Laws of the State of California, 2nd session (1851); An Act to regulate the coining of money by individuals, Ch. 13, Laws of the State of California, 2nd session (1851); An Act concerning Licences, Ch. 39, Laws of the State of California, 3rd session (1852). 192 Section 11, An Act to provide for the incorporation of Cities, Ch. 30, Laws of the State of California, 1st session (1850). 193 Ordinances of the City of Nevada (Doris Foley Historical Library, Nevada City, California). 194 Chapter 82, An Act to Incorporate the City of Nevada (1851).

296 example, town leaders passed 36 detailed ordinances for the better regulation of the city. These included ordinances to regulate conduct, such as Ordinance No. 10, which was passed on 22 May

1851 to “prevent and suppress disturbance and riotous assemblages”, ordinances to regulate the economy, such as Ordinance No. 13, passed on 28 May 1851, which required certain businesses to be licensed, and ordinances for public health, such as Ordinance No. 35, which prohibited the burial of the dead in the ground immediately in the rear of the City Hall and Court Street.195 A full statute book did not mean that the city prosecuted breaches of its ordinances.196 The city government collected little in the way of taxes or license fees and the city was precariously close to bankruptcy.197 In

October 1851, Moses F. Hoit noted that “[n]o payment has been collected for licenses for the months of September and October, nor fines imposed”. The failure of enforcement is confirmed by the actions in November 1851 of some “citizens of Broad and a part of Main Street” who, the Nevada

Journal reported, “have employed for several months past an efficient private watch during the night, to keep a look out on their property”. The editor noted that “in the absence of any protection from the city authorities, the necessity of some means to guard against incendiaries and thieves is extreme”.198

In addition, the fact that moral offences were normally victimless meant that there was usually no person interested enough in the case to press charges. The problem was compounded because the moral views of regulators who wished to impose some moral order on the region did not always match the wishes and desires of many of the early miners. Prosecution therefore relied mainly on the law enforcement authorities. The problem became more complex, however, because some of those in the position to regulate offences were some of the worst offenders. Henry Crandall, for example, wrote that the “aristocracy” of Nevada City had “too little as to character of morals” and that

“sporting gentlemen and profligate women are by no means excluded if only they come well supplied

195 David A. Comstock, Nevada City’s First Government (1851-52) (Doris Foley Historical Library, Nevada City, California). 196 According to Lawrence Friedman, this was the situation across the country. See Friedman, A History of American Law, p. 448. 197 Wells, History of Nevada County, p. 81. See also Nevada Journal, 22 January 1852; Letter from Mr Ellis, Nevada Journal, 7 February 1852; Nevada Democrat, 11 October 1851 in relation to the reluctance of citizens to pay their taxes to the County. 198 Nevada Journal, 15 November 1851. See also Nevada Journal, 29 January 1852; 6 March 1852; 22 January 1852; 30 October 1951; Mann, After the Gold Rush, p. 26.

297 with the Oro” (gold).199 Indeed, the use of the Spanish word for gold perhaps suggests the nationality that was associated with these “sporting gentlemen” or “profligate women”.

One of the reasons why it was difficult to establish a town government was that the city’s population was so transient. Of the men listed in the 1850 census, only around 7 per cent still appeared in the

Nevada City directory in 1856. Further, only around 3 per cent of miners in 1850 worked in the town.200 Citizens were not committed to the town itself and these early inhabitants had neither the experience, nor the inclination, to draft and enforce public regulations.201 One pioneer noted that

“there seemed to be no organized government; or if such existed, people were too busy with their own affairs and interests to give attention to the execution of law”.202

Many of the early Nevada County pioneers passed their limited spare time in gambling saloons

(Figure 9.8). These saloons had existed from the first days of the region’s U.S. settlement. When

Nevada City was born out of the collection of tents around Deer Creek, a gambling saloon “dominated the first collection of wagons and provision sheds”.203 Benjamin Avery wrote that Nevada City in

1850 was a “wide, wonderful scene. Gambling, of course, was common and fatal affrays were frequent”.204 Edwin Morse, a Grass Valley miner, wrote that “drinking and gambling were indulged in to a great extent in the dearth of other amusements”.205 The pious Luther M. Schaeffer observed that “at every village, the sporting fraternity were on hand” and these men would “open their games, surrounded by all the paraphernalia of their profession, and entice the unwary, as a ’spider does the fly‘, into their meshes”.206

199 Mann, After the Gold Rush, p. 43. 200 Mann, After the Gold Rush, pp. 31, 227. 201 Mann, After the Gold Rush, p. 34. 202 Bidwell and Steele, Echoes of the past about California pp. 131-134. 203 Mann, After the Gold Rush, p. 35. 204 Wells, History of Nevada County, p. 79. 205 Mann, After the Gold Rush, p. 34; Edwin F. Morse, “The Story of a Gold Miner,” California Historical Society Quarterly 6 (1927), 205-237 (pp. 226-227). 206 Schaeffer, Sketches of travels in South America, Mexico and California, pp. 69-70. For further commentary on the proliferation of gambling see a letter from “Quartz”, Nevada Journal, 26 July 1850.

298 Figure 9.8: The Hotel de Paris in Nevada City (1853)

Courtsey: Searls Historical Library

By 1851, Nevada City had two gambling saloons: the Empire, and Barker’s Exchange. These saloons each had a “band of music and from twelve to fifteen tables where games of chance were played, monte, faro, chuck-a-luck, twenty-one, roulette and many other games.”207 Reverend John Steele was, not surprisingly, of the view that “the gambling saloons were the terror of the town”. He described their rooms as “spacious, supplied with music, and adorned with mirrors, pictures, and every device to attract the young and induce them to gamble and drink”.208 It was in these saloons that “boys and young men … spent their evenings, and formed associations and habits which wrought their ruin.

Here, too, men crazed with drink and maddened by losses either killed themselves or others”.209

Gambling was generally permitted until March 1851 when the California legislature passed the first act to regulate gambling. The games of ‘French monte’, ‘Three Card Game’, ‘Loop’, ‘String game’,

207 Wells, History of Nevada County, p. 150. 208 Bidwell and Steele, Echoes of the past about California pp. 131-134. 209 Bidwell and Steele, Echoes of the past about California pp. 131-134; see also Mann, After the Gold Rush, p. 36. For a description of Broad Street see Nevada Journal, 23 October 1851; for another description of saloons on Broad Street, see Nevada Journal, 10 March 1854.

299 ‘Thimbles’, and ‘Lottery’ were prohibited.210 All other games were allowed as long as they were

played on licensed premises. The cost of a licence for each hotel keeper was $35 per gaming table per

month. The 1851 legislation was little more than a revenue collection device because it did little to

curb gambling other than impose a fee. Licensed gambling continued and it is also likely that many

gambling saloons operated without a licence.

That the provisions of the statute were not enforced is corroborated by commentary in 1854 on

anticipated amendments to the gambling legislation. The Nevada Democrat noted that the proposed

legislation was “so clear, explicit and comprehensive that we can imagine no possible subterfuge by

which the gambler may elude its grasp”, but even this was not enough and the Democrat lamented

that even if the legislation was enacted, “objections may be made” because of “the impossibility of

sustaining the law”.211 By 1856, official records suggest that Nevada City had 31 saloons, 16 of

which were concentrated in Broad Street. We do not know how many were devoted to gambling, but

it is likely that many were. John Steele noted that “the gambling houses had developed and sheltered

a vicious class … so emboldened by the lack of organized government”.212 The Nevada Democrat

noted the ‘vice’ of gambling and stated that “notwithstanding the law to the contrary, the practice is

still pursued in many places”.213

Criticisms of gambling in these early years, such as those offered by Reverend Steele, should not be

overstated. Gambling might have been morally condemned, but this did not necessarily translate into

an actual reduction in gambling. Indeed, public opinion was not so much opposed to gambling as to

prevent the owner of a prominent gambling saloon being elected alderman of Nevada City in 1851.

Gambling continued to flourish into the mid 1850s, even though it was sometimes frowned upon in

public discourse. In February 1854, the Nevada Democrat noted that “this vice is the greatest curse of

210 An Act to licence gaming, Ch. 8, Laws of the State of California, 2nd session (1851); see also An Act to prohibit lotteries, Ch. 28, Laws of the State of California, 2nd session (1851), which provided that “all lotteries are hereby prohibited in this State”; An Act to prohibit lotteries, raffles, gifts, enterprises, and other schemes of a like character, Ch. 75, Laws of the State of California, 6th session (1855); An Act to suppress Gaming, Ch. 103, Laws of the State of California, 6th session (1855). 211 Nevada Democrat, 15 February 1854. 212 Mann, After the Gold Rush, pp. 37, 58; Bidwell and Steele, Echoes of the past about California, p. 100. See also Nevada Journal, 23 September 1853; 12 December 1856; 10 March 1854; Nevada Democrat, 22 March 1854. 213 Nevada Democrat, 26 December 1855; This was part of a wider campaign against gambling that traversed the United States. See, for example, John S. Ezell, Fortune’s Merry Wheel: The Lottery in America (Cambridge, MA: Harvard University Press, 1960).

300 California.”214 A week later, the paper noted the “numberless victims who nightly frequent those

costly places and gorgeous saloons, enticed by an infatuation more potent than a syren’s spell”.215 In

August 1854, a Grand Jury convened by the Court of Sessions recommended action in relation to the

gambling houses of Nevada and Grass Valley that would “have for its object the suppression of those

dens of infamy now unfortunately too prevalent in our midst”.216 In December 1855, the Nevada

Democrat noted that the vice of gambling “is awakening the attention of the press and the action of

officers in many portions of the State”.217 Instead of moral condemnation, calls were made

increasingly for the “traditional bulwarks of society” such as homes, family, churches and schools to

guard against vice.218

Just as gambling flourished in Nevada County’s early years, so too did a drinking culture. The editor

of the Nevada Journal noted in October 1851 that “the past week has been fruitful of terrible instances

of intemperance”.219 In 1852, another pioneer observed that in Nevada City there were “saloons in

abundance where a few drops of brandy were sold for twenty-five cents to the men who were waiting

for some gold dust to turn up”.220 In August 1854, the Nevada Democrat lamented that there was no decline in the liquor business and noted that new establishments were being opened.221 The following

year men could still be observed “lying by the side of the street in a state of complete intoxication”.222

The alcohol industry was first regulated by state legislation in 1852, but like the law regulating

gambling, this was little more than a revenue raising statute. The legislation provided that any person

selling “wines and distilled liquors” was required to be licensed. The fee was calculated as a

proportion of monthly sales. Saloon keepers were also required to be licensed. Any averaging sales

214 Nevada Democrat, 8 February 1854. 215 Nevada Democrat, 15 February 1854. 216 Nevada Democrat, 16 August 1854. 217 Nevada Democrat, 26 December 1855; This was part of a wider campaign against gambling that traversed the United States. See, for example, Ezell, Fortune’s Merry Wheel: The Lottery in America. 218 Mann, After the Gold Rush, p. 38. 219 Nevada Journal, 16 October 1851. See also Nevada Journal, 22 October 1851. 220 H.B. Scharmann, Scharmann’s overland journey to California, from the pages of a pioneer’s diary, translated by Margaret Hoff Zimmerman and Erich W Zimmerman (New York, 1918), p. 94. 221 Nevada Democrat, 2 August 1854; See also Nevada Democrat, 7 June 1854; Nevada Journal, 2 September 1853; Wells, History of Nevada County, p. 150. 222 Nevada Journal, 9 August 1855.

301 of over $10,000 per month had to pay a fee of $50 per month. If sales amounted to less than $1,000 per month, the fee was only $2.50 per month.223

The second half of the 1850s saw a decline in both alcoholism and gambling. This was not due to the enforcement of the law, but the changing tide of public opinion. It was in this context that temperance movements began to emerge in California. Temperance movements flourished among those who saw temperance as facilitating social progress224 as well as “upwardly mobile entrepreneurs”.225 In the same way, reformers in Nevada County saw temperance as a method of establishing a more civilised community.

Temperance was one of the most important reform movements in the United States in the antebellum decades. Its popularity was initially related to the support of evangelical religion, but was also linked with fraternal organisations.226 This was certainly the case in California where the temperance movement was led by the protestant churches and fraternal organisations.227 Prominent among these were the Sons of Temperance, organised in San Francisco in September 1850 and the Independent

Order of the Good Templars, which took the place of the Sons by 1855.228 The Sons of Temperance in California had strong links with the clergy and the Grand Division of the Sons of Temperance of

California had a Methodist and Baptist minister as elected officers.229

The Sons of Temperance was the first temperance organisation to be introduced into Nevada County.

Its purpose was to restrain “the growth of that fearful evil – intemperance, in our midst” and to elevate

“the moral tone of society”.230 This order was established in 1852, was “firmly grounded” by 1853231

223 An Act concerning Licenses, Ch. 39, Laws of the State of California, 3rd Session (1852). See also An Act to enforce the payment of licenses in this State, Ch. 49, Laws of the State of California, 4th Session (1853). 224 Ian Tyrrell, Sobering Up, (Westport, CT: Greenwood Press, 1979), p. 7. See also Jack S. Blocker, American temperance movements: cycles of reform (Boston: Twayne Publishers, 1989). 225 Tyrrell, Sobering Up, p. 115. 226 Tyrrell, Sobering Up. See in particular pp. 1, 87 and 212. See also Blocker, American temperance movements: cycles of reform; David M Fahey, Temperance and Racism: John Bull, Johnny Reb, and the Good Templars (Lexington: University of Kentucky, 1996), particularly Chapter 1. 227 Gilman Marston Ostrander, The prohibition movement in California, 1848-1933 (Berkeley: University of California Press, 1957), p. 7. 228 Ostrander, The prohibition movement in California, p. 11. 229 Ostrander, The prohibition movement in California, pp. 9, 11. 230 Nevada Journal, 17 September 1852; See also Nevada Journal, 12 January 1855.

302 and “made great headway” in 1854 and 1855. Nevada County alone was home to 15 divisions. The

Sons of Temperance passed resolutions, held parades, made speeches and conducted public debates.232

On 4 July 1854, “the most prominent feature of the day was the celebration by the Sabbath Schools and the Cadets of Temperance, who turned out in numbers that astonished many who witnessed the procession”.233 The temperance movement in Nevada County was spearheaded by the Protestant churches, particularly the Methodist church.234 The Nevada Democrat noted in February 1854 that

Reverend Winn gave a temperance lecture at Reverend Tansey’s Methodist church on Broad Street,235 which also held a temperance meeting every Monday.236 There were also links between temperance and politics and in July 1854, the Nevada Democrat noted that a County Temperance Committee had been formed, with the purpose of persuading a party to put forward only temperance men.237

By the end of the 1850s, both drinking and gambling were becoming less obvious, and the saloons in which both activites were engaged were slowly disappearing (notwithstanding a growing population).238 The Nevada City Directory listed 31 saloons in 1856, 28 saloons in 1861, and 19 in

1866. Thus, although the Nevada City population increased by around 50 per cent during this time, the number of saloons did not increase with it. The proportionate decline in saloons was not due to a stricter enforcement of the law. Between 1856 and 1861, the Court of Sessions recorded only 12 prosecutions for “carrying on an illegal gambling house”. The majority of these prosecutions were brought at the same time, reflecting a tendency to ‘crack down’ on vice, rather than consistently enforce the laws. In 1857, for example, William Thistle and John Senner were also indicted for permitting games of chance to be played in their respective houses. Later than same year, Thomas

Bucknor, Julius Morris, Thomas Sis, H. Lighter, Charles King, M Harris, David York and Simpson

231 Mann, After the Gold Rush, p. 37. 232 Mann, After the Gold Rush, p. 37. 233 Nevada Journal, 7 July 1854. 234 See, for example, the temperance meeting at the church of Rev. Blythe on broad Street, Nevada Journal, 26 November 1852; lecture delivered by Rev. Winn at the Methodist Church, Nevada Journal, 24 February 1854. 235 Nevada Democrat, 22 February 1854. 236 Nevada Democrat, 1 March 1854. See also Nevada Democrat, 29 March 1854. 237 Nevada Democrat, 5 July 1854. See also Nevada Journal, 14 July 1854; Grass Valley Telegraph, 13 July 1854; and Nevada Democrat, 23 February 1855 for other instances of temperance associations. 238 Mann, After the Gold Rush, p. 64; Nevada Journal, 4 August 1854.

303 Sed were heard by the court at the same time. The more likely reason for the reduction of gambling was the changing attitude towards the vice and the rise of middle-class family neighbourhoods.239

Hugh McGill was certainly of this opinion when he observed in 1855 that, in comparison to 1849 and

1850, Nevada City had “become more civilized”. The citizens were beginning to go to church and the

“old nightbars” were moving to the west.240

The movement to disperse the most direct ills of alcohol and gambling was mirrored by a similar movement that looked to protect Sunday as a day of rest.241 In Nevada County’s early years, saloons were crowded on Sundays and an observer might even have seen spectacles such as a bull and bear fight. On Sunday, 19 October 1851, Charles Lovell organised such a fight in an amphitheatre in

Nevada City. The spectacle was watched by a “throng of some one thousand persons”.242 Businesses claimed to do four times their usual trade on the Sabbath.243 In 1853, it was noted that business in

Grass Valley was “lively here on Sunday and the hotels and public places thronged with people”.244

William Ingraham Kip observed in April 1854 that if all the congregations were collected on a

Sunday morning, they would amount to only 500 people because “Sunday is the great day for business, as the miners generally, owing to old home associations, do not work their claims on that day”. Instead, Kip noted, miners spent Sunday “in town purchasing their goods. All the shops, therefore, are open, and this is the day for brisk trade”.245

The movement against working on a Sunday was not initiated by legislation, but was a creature of developing social norms.246 The first evidence of a movement towards respecting the Sabbath appeared as early as in October 1851. In that month, the merchants of Broad Street decided that

239 Mann, After the Gold Rush, pp. 64-65. 240 Letter from Hugh R. McGill, Nevada City, 25 June 1855. 241 Friedman, A History of American Law, p. 447. See also Howard L. Hurwitz, Theodore Roosevelt and Labor in New York State, 1880-1900 (New York: Columbia University Press, 1943). 242 Nevada Journal, 22 October 1851. See Nevada Journal, 16 October 1851 for an advertisement placed by Charles Lovell. 243 Decker, The Diaries of Peter Decker, pp. 234, 236; Mann, After the Gold Rush, p. 236. 244 Mann, After the Gold Rush, p. 37. 245 Kip, The early days of my episcopate, p. 145. See also Schaeffer, Sketches of travels in South America, Mexico and California, p. 68; Mann, After the Gold Rush, p. 36. 246 See, for example, the meeting at the Presbyterian Church “for the better observance of the Sabbath”, Nevada Journal, 7 August 1852. See also, Nevada Journal, 14 August 1852; 3 December 1852.

304 “more respect to the Sabbath” should be paid in Nevada City than had “been done heretofore”. These merchants decided to close their stores on Sunday “for a sufficient time during that day to enable themselves to attend divine service”. The editor of the Nevada Journal applauded this movement and recorded his hope that it would be “imitated by the whole city, and be carried yet further in a closing of the stores, and all amusements, for the entire day”.247 Indicating the changing social norms in the

County from the mid-1850s, businesses increasingly advertised that their businesses would be closed on the Sabbath. In August 1854, Wells, Fargo & Co announced its intention to close on Sundays.

This was hailed as “another indication on the part of our business men to introduce a more general observance of the Sabbath in California” and that “every good citizen” should lend his influence to achieve this end.248 This moral movement was not brought about by law. Indeed, it was not until

1855 that the first ‘Sunday laws’ were passed in California. They prohibited “barbarous and noisy amusements on the Christian Sabbath”.249 The newspapers recorded no prosecutions for breaches of these laws. Preserving the Sabbath as a day of rest was dependent on the moral character of the population.

The final moral vice of particular importance in Nevada County was prostitution. As with drinking and gambling, regulations in relation to prostitution had little practical effect. More important were the informal methods that were used to enforce moral norms, which gained momentum at the same time as the movements against gaming and alcohol. One Sunday in August 1854, for example, a large number of miners “amused themselves” by “cleaning out” the Chinese brothels on Broad Street on the basis that the Chinese were “getting too numerous in town”.250 The concern was that “foreign born prostitutes were infiltrating California” and that “this class of Chinese emigrants become obnoxious to a wholesome state of society”.251 The Nevada Democrat noted the “numerous houses of ill repute

247 Nevada Journal, 2 October 1851. 248 Nevada Democrat, 30 August 1854. See also Nevada Journal, 30 June 1854 reporting that blacksmith shops were closed on Sundays by agreement; Nevada Journal, 4 May 1854; Grass Valley Telegraph, 31 October 1854. 249 An Act to prohibit barbarous and noisy amusements on the Christian Sabbath, Ch. 46, Laws of the State of California, 6th session (1855). 250 This type of brothel riot was common in many cities, Friedman, A History of American Law, p. 444; John C. Schneider, Detroit and the Problem of Order, 1830-1880 (Lincoln: University of Nebraska Press, 1980). 251 Nevada Journal, 28 April 1854.

305 situated in every quarter of our town” and concluded that “[i]f such a disgrace is to be tolerated, let it at least be confined to some particular locality.252

Formal regulation of prostitution did not take place until 1855 when legislation was passed to

“suppress houses of ill-fame”. This legislation made it an offence to “keep a house of ill-fame in this

State, resorted to for the purposes of prostitution of lewdness”.253 It is difficult to find any examples of the prosecution of this offence, but the case of Elizabeth Applegate is illustrative. Applegate was accused of “keeping a bawdy house” on the corner of Pine and Commercial Streets, in the center of

Nevada City. She was charged with harbouring male and female “evil disposed persons” as well as

“common prostitutes” and, “by the consent and procurement” of Applegate allowed “whoredom and fornication” to occur. Further, she allowed various “unlawful assemblies, affrays, disturbances and violations of the peace”. Her house was described as causing “great damage and common nuisance” to all the citizens of the State of California and was against the “good morals and good manners” and

“the peace and dignity” of Californians. Applegate was found guilty by the Court of Sessions.254

This type of enforcement had little effect. The Nevada Journal noted that “notwithstanding the summary cleansing of the Chinese houses of ill fame a few weeks ago, the vermin have crawled back to their nests, and hold out as aforetime”. The solution was that “[o]n Wednesday night last, a deputation of smart young men visited the houses and told the occupants that they must leave town before next Saturday night or they would clean them out”.255

It is impossible to say just how widespread prostitution was in Nevada County. Many of the saloons listed in the Nevada City directory may have dealt in prostitution. Elizabeth Applegate’s saloon in

Pine Street, which we know was one such establishment, was listed merely as a ‘saloon’ in the

Nevada City directory for 1856. Applegate’s saloon was one of many in Pine Street. Her premises was surrounded by a number of saloons, including one owned by a Sarah Allen, which may also have been a house of ill fame. Similarly, the city directory listed 16 saloons in Broad Street 1856 and 18 in

252 Nevada Democrat, 1 March 1854. 253 An Act to suppress houses if ill-fame, Ch. 67, Laws of the State of California, 5th session (1855). 254 The People v Elizabeth Applegate, undated, Supreme Court of California (California State Archives, Sacramento). 255 Nevada Journal, 20 October 1854.

306 1861. Some of these may have dealt in prostitution as the upper end of Broad Street was alleged to be the home of vice in the early to mid 1850s and was reputed to be home to a number of Chinese brothels.256 In addition, it is possible that many of the more lewd establishments, or unlicensed saloons, were not listed at all.

By the middle of the decade, moves were afoot to disperse the problem of prostitution, or at least hide it from view. By late 1855, Warren Ewer boasted that “vice and immorality” was restricted to the

‘darker’ areas of town.257 Aaron Sargeant wrote that all the dens were “either closed or no longer visible; gambling had retired to the back rooms of the red-light district”.258 This is confirmed by the reduction in the number of Saloons in Pine and Broad Streets. Of the 6 saloons that operated in Pine

Street in 1856, only 2 operated by 1861. Similarly, of the 16 saloons in Broad Street in 1856, only 5 saloons remained by 1866. Vice was both reduced and removed from sight.

The story of regulation in Nevada County was linked to the story of policing. The Californian legislature purported to regulate for the public welfare of Nevada County, and the Nevada City town government purported to regulate for the welfare of the city. The effectiveness of those regulations, however, depended on enforcement. In this respect, the police of Nevada County did not have the resources to detect and punish breaches of the moral regulations. More important than the enactment of regulations, therefore, were changing social norms. Offences against public morals, such as alcoholism, gambling and prostitution declined as Nevada County became more ‘civilised’. The presence of family, churches, schools and social organisations altered the prevailing social norms and gave a focus for campaigns against vice.

Pattern of tensions in the criminal law

It is through the operation of the criminal law that the traditional story of the West as a process of both colonisation and frontier settlement most clearly exists alongside the themes of race and gender that, among others, are emphasised by New Western Historians. In relation to violent crimes against

256 Nevada Journal, 22 October 1851; Nevada Democrat, 15 March 1854; Mann, After the Gold Rush, p. 64. 257 Mann, After the Gold Rush, p. 64. 258 Mann, After the Gold Rush, p. 64.

307 the person, the application of the law reflected existing power structures and a general tolerance of violence when used to protect property and honour. In contrast, there was little tolerance of property offences, which reflected the economic need for security of property. In relation to moral offences, the law depended for its enforcement almost entirely on the moral character of Nevada County. There was no constantly organised, strong and reliable police force. The reliance on the public to prosecute offences, and the general sense that certain criminal acts were permissible meant that the public understanding of what was acceptable supplemented and modified the operation of the criminal law.

As the male dominated culture of the early pioneers gave way to a permanence and prosperity that encouraged the development of ‘civilised’ norms (particularly those associated with women, the church, and family), tolerance of crime correspondingly diminished. This process also saw movements to eradicate the problems of alcohol, gambling, prostitution and the desecration of the

Sabbath. Although state and local authorities attempted to impose a comprehensive and sophisticated criminal law, it was only effective in regulating social behaviour when supported by evolving moral norms.

308 CHAPTER 10

CRIMINAL LAW IN GYMPIE

The criminal law that operated in Gympie can be divided into three categories: laws that prohibited violent offences, such as assault, sexual assault and murder; laws that prohibited property offences, such as larceny, robbery and fraud; and the laws that sought to regulate the public morality, such as drunkenness and vagrancy. These laws were drafted by the Queensland colonial government, but were applied in a way that reflected Gympie’s social and economic conditions. The application of the law was determined at various levels: by the involvement of the police who could exercise a discretion to either tolerate or prosecute an offence; by the social and moral norms that impacted the public’s desire to report offences to the police, or prosecute the offence themselves; and the pattern of convictions and severity of punishments imposed by Gympie’s courts. Through the exercise of discretion at each of these levels, the criminal law tolerated certain types of violence and enforced racial and gendered power structures. Violent behaviour was prosecuted only if it was sufficiently serious, or had some personal significance to the victim. Offences involving women and indigenous people were largely dealt with privately. Immorality, as long as it was committed in private, did not appear in the court records.

As in Nevada County, the nature of criminality in Gympie was tied to its evolution and maturity as a town. In 1868, the population was predominantly young and male. Its citizens did not intend necessarily to relocate permanently to Gympie; they were temporary and on the move. By the middle of the 1870s, Gympie had evolved into a more mature and stable community. The number of women and children was increasing, and the population was more permanent. As Gympie became more

‘civilised’, the number of violent and property offences correspondingly decreased. The operation of the criminal law mirrored these changing social norms.

The Court System in Gympie and Queensland

309 On the morning of Monday, 24 August 1868, Judge George Faircloth declared the Gympie Court of

Petty Sessions, known generally as the Police Court, to be open.1 On this Monday, three cases appeared on Judge Faircloth’s docket. The first was the case of John Mae, who was arrested by

Constable Halloran on Saturday evening for using obscene language. Judge Faircloth probably heard

Mae’s evidence and that of Constable Halloran. Mae was fined the standard amount of 5 shillings, or in default 48 hours imprisonment. The next prisoner pleaded guilty to being drunk and disorderly on the previous Sunday afternoon. This was a common offence, particularly at the first court session after the weekend.2 He was fined 10 shillings or 48 hours in the lock up. The fine was roughly equivalent to a little more than a day’s wages for a labourer in Queensland.3 The final prisoner, Henry

Labanty, was charged with embezzling 5 shillings from his employer, a baker from the One Mile.

Judge Faircloth granted bail to Labanty and considered the case to be sufficiently serious to refer it to be heard at the next sitting of the District Court. With this, the business of the Police Court for the day was complete.

This scene took place on an almost daily basis in Gympie between 1868 and 1880. The Police

Magistrate heard the mundane and everyday cases such as drunkenness, obscene language, larceny and assault. These cases are interesting because they were so common. They offer the clearest window into the everyday legal order in Gympie, but are the most difficult to recover from the historical record. Our glimpses of the workings of the Police Court can be gathered only from brief, but regularly published, reports in the newspaper, statistics collected by the Queensland colonial government, and the records kept by the police who were stationed at Gympie.

From the beginning, the Police Court was critically under-resourced. The first Gold Commissioners also worked as the Police Magistrates. Meetings of the Police Court were initially held at the

1 The Police Court was constituted by legislation that was passed in New South Wales in 1850 and inherited by Queensland after separation in 1859. Justices Act of 1850 (NSW) 14 Vic. No. 43. See also Castles, An Australian Legal History, pp. 214-215. 2 The Police Magistrate heard 678 cases of drunkenness between 1868 and 1880, Statistics of Queensland, Journals of the Legislative Council, 1868-1880. 3 Such as a mason, bricklayer, carpenter, blacksmith, or quarryman who earned, on average, between 8 and 9 shillings a day. See Journals of the Legislative Council, 2nd Session, 1869, p. 126.

310 Commissioner’s camp,4 which was little more than a “bark and calico humpy.”5 As has been discussed in previous chapters, this judicial duty was just one of the many responsibilities of the Gold

Commissioner. The Police Magistrate did “all that a man can do; but his time is so broken up by varied calls that it is impossible for him to answer them all.”6 The administrative burden and the number of criminal cases meant that on 23 July 1868, less than a year after the discovery of gold, Mr

George Faircloth was appointed as Police Magistrate for Gympie at an annual salary of 400 pounds, relieving Gold Commissioner Henry King of these duties.7 Faircloth’s appointment was met with enthusiasm in Gympie. Citizens expressed hope that they would not “have the hearing of their cases postponed from the want of a magistrate.”8 As discussed in previous chapters, Faircloth remained

Police Magistrate for little under a year until he was succeeded by John O’Connell Bligh, previously the Police Magistrate at Gayndah, who was appointed in June 1869.9 The positions of Gold

Commissioner and Police Magistrate were merged once again in 1870 when Bligh was appointed

Gold Commissioner. Bligh remained Police Magistrate until his death in December 1880.

The District Court sat above the Police Court in the judicial pyramid (Figure 10.1). It heard the cases that were considered more important in the eyes of the law, such as more serious assaults, indecent assaults and robberies. Although it could hear all offences other than those punishable by life imprisonment, as a practical matter it heard only those indictable offences that were referred to it by the Police Magistrate. Although the District Court had wider jurisdiction, citizens of Gympie had far less contact with the District Court than with the Police Court. Whereas the Police Court heard 2207 criminal cases between 1868 and 1880, the District Court heard only 67 criminal cases. At the August

1868 sitting, the District Court heard only two cases: a case of gold stealing; and a case of stealing furniture.10 Two cases were heard at the July 1870 sitting: stealing of clothing; and embezzlement.11

4 Queensland Government Gazette, 1868, p. 24. 5 “Early Gympie Incidents, from an early pioneer”, Gympie Times, Special Edition, Gympie’s Jubilee 1867 – 1917, p. 18. 6 Nashville Times, 7 March 1868. 7 Queensland Government Gazette, 1868, p. 776; Journals of the Legislative Council, 2nd Session, 1869, p. 39; See also Nashville Times, 7 March 1868. 8 Nashville Times, 1 August 1868; 5 August 1868. 9 Queensland Government Gazette, 1869, vol. 1, p. 762. 10 Nashville Times, 11 August 1868.

311 At its sitting in October 1870, District Judge William H. A. Hirst heard no criminal cases at all. The

Registrar of the District Court presented Judge Hirst with a pair of white gloves in recognition of the occasion.12

Figure 10.1: The Courthouse in Gympie

This photograph was taken in 1911 after the court house had become the office of the Department of Lands

Courtesy: Gympie Regional Council Library

The Supreme Court was the theoretical pinnacle of the criminal justice system in Queensland. It had jurisdiction to hear criminal cases of every kind.13 Like the District Court, it had little practical impact on the everyday lives of Gympie citizens. The Supreme Court sat twice a year at

Maryborough in April and October. It heard, on average, 7 cases a year, drawn from all over the

Wide Bay region, which included Gympie. The story of the formal criminal law in Gympie, therefore, is primarily revealed in the cases that were heard by the Police Magistrate in the Police

Court. For the vast majority of Gympie citizens, it was the only outpost of formal criminal judicial authority in Gympie.

11 Gympie Times, 13 July 1870. See also the March 1872 sitting where the District Court heard only three cases: stealing a windlass; cutting and wounding; and attempting to wound, Gympie Times, 13 March 1872. 12 Gympie Times, 22 October 1870. 13 Section 24, Supreme Court Act of 1867 (31 Vic. 23); McPherson, The Supreme Court of Queensland, 1859-1960: History Jurisdiction, Procedure, Butterworths, p. 110.

312 The Police in Gympie

Policing of the criminal law in Gympie operated at two levels. At the formal level, the professional police had a duty to patrol the district as best as they could and arrest those people who committed breaches of the criminal law who, in their opinion, warranted punishment. At the informal level, the criminal justice system relied on private citizens to investigate, provide information in relation to, or prosecute offences that directly (or sometimes indirectly) affected them. Both public and private understandings of what was criminal behaviour therefore influenced the type of cases that were heard by the courts. This discretionary enforcement of the law, and the informal partnership that operated between the police and the public, moulded the application of the criminal law to match Gympie’s social conditions.

The Queensland police force was controlled by the colonial government, supervised by a Police

Commissioner who was appointed by the Governor.14 The Police Commissioner could appoint inspectors (who would be responsible for the management of the police force within their districts),15 sergeants and constables.16 This structure, which was more centralised that the system of policing that operated in California, was based on an Irish model. A report on the prevention and repression of crime in Queensland, tabled before the legislature in 1872, noted that the professional police force in

Queensland took much of the “character of the Irish constabulary, allowing for differences occasioned by sparseness of population, and great area of country over which it is scattered.”17

The police had many functions in Queensland’s colonial bureaucracy, but their primary purpose was to act as peace officers. The Rules for the General Government and Discipline of Members of the

Police Force of Queensland (the “Police Rules”) required police to perform this function with

14 Section 3, An Act to Consolidate and Amend the Laws relating to the Police Force (1863) 27 Vic No. 11. 15 Section 4, An Act to Consolidate and Amend the Laws relating to the Police Force 1863 (Qld). 16 Section 6, An Act to Consolidate and Amend the Laws relating to the Police Force 1863 (Qld). See also Mark Finnane, Police and Government: Histories of Policing in Australia (Melbourne, Vic.: Oxford University Press, 1994), p. 16. 17 Report on the prevention and repression of crime, including penal and reformatory treatment in Queensland, Journals of the Legislative Council, 2nd session of 1872, p. 889. For a discussion of the development of colonial and state police forces, see Finnane, Police and Government, and the collection of essays edited by Mark Finnane, ed., Policing in Australia: Historical Perspectives (Sydney: University of New South Wales Press, 1987).

313 “intelligence, decision, and perfect command of temper.”18 A police officer was to be “ever on the alert for the prevention of crime and the protection of person and property” and “any circumstances which may, in the most remote degree, appear to affect the public peace.” A policeman was required to pay particular attention to “all public houses within his beat, reporting the hour at which each were closed, and whether they appear to be conducted in an orderly manner”19 and more generally report anything “in the street likely to produce danger or public inconvenience.”20

From the beginning, the police force stationed in Gympie was small and under-resourced.21 The

Police Office, like the Commissioner’s Office, was a “miserable humpy.”22 This was noted in 1868 by the Commissioner of Police, David T. Seymour, who reported:

I have felt it my duty to urge upon the Government repeatedly the absolute impossibility of

the police performing their duty satisfactorily or efficiently, without the assistance of proper

police buildings and paddocks; as long as constables have to live in public houses, and hunt

up their horses in the bush, when required for duty, so long will their duty be unsatisfactorily

and comparatively inefficiently performed. Many offenders, who now either escape arrest

altogether, or who remain at large for a time, that appears to those unacquainted with

attending circumstances and difficulties, to indicate supineness and inefficiency on the part of

the police, would have a much shorter career if proper facilities to perform their duty were

afforded to the police.23

In March 1868 it was noted that the police simply could not “be always on the ground” and “at each robber’s back when he was doing his work.”24 Some officers were reported as working over 20 hours

18 “Rules for the General Government and Discipline of Members of the Police Force of Queensland”, Journals of the Legislative Council, 1st session, 1869, p. 292 at paragraph 170. 19 “Rules for the General Government and Discipline of Members of the Police Force of Queensland” at paragraph 186. 20 “Rules for the General Government and Discipline of Members of the Police Force of Queensland”, at paragraph 188. 21 See, for example, Nashville Times, 27 June 1868 in which it was noted that “until late we have not had the slightest police protection.” . 22 Nashville Times, 4 March 1868. See also Gympie Times, 7 November 1868. 23 Report from the Commissioner of Police for the year 1868, Journals of the Legislative Council, 1st session, 1869, p. 265. 24 Nashville Times, 7 March 1868.

314 each day.25 Even allowing for hyperbole, the police were clearly stretched. In July 1868, 9 months after the discovery of gold, Gympie was still “deprived of police protection”26 and it was not until

October 1868 that Inspector Samuel John Lloyd was appointed to Gympie.27 The situation was particularly dire at the One Mile, which received no police protection at all until September 1868.28

By the end of 1868, there were 22 police stationed at Gympie, comprised of 1 inspector, 4 sergeants, and 17 constables. In 1869 when the initial population boom of 1868 was coming to an end, the

Police Commissioner wrote to the Colonial Secretary that “the decrease of population at Gympie last year enabled me to make some reduction in the Police Force.”29 In 1869 the police force for Gympie was reduced to 16. No additional police were assigned until 1872, when the number was increased to

18 (Figure 10.2).

25 Nashville Times, 11 March 1868. 26 Nashville Times, 6 July 1868; 11 March 1868; Ivimey, The Gympie Mining Handbook, p. 15. 27 Journals of the Legislative Council, 2nd session 1869, p. 528. 28 Nashville Times, 19 September 1868 which noted the arrival of four constables. 29 Report from the Commissioner of Police for the year 1869, Journals of the Legislative Council, 1st session, 1870, p. 45; See also Report from the Commissioner of Police for the year 1870, Journals of the Legislative Council, 1st session of 1871, p. 453.

315 Figure 10.2: Police stationed at Gympie 1868-1872

Source: Journals of the Legislative Council 1868-1873

Resourcing continued to be a problem through the decade of the 1870s. In 1874, the growing population at the One Mile led to calls for an increase in the number of police stationed there.30 In

November 1877 it was noted that “in the matter of police protection we doubt if there is any Goldfield in the Australian colonies which costs the Government so little as this.” The entire force for the protection of property and maintenance of peace at the Caledonian Hill, Red Hill, Monkland, and One

Mile “consisted of Private Graham, whose beat extended from the extreme south of the Monkland, to

Nash’s Bridge.”31 In 1877, Commissioner Seymour wrote that “I regret being unable to report favourably of the state of the Police Buildings throughout the colony; they are nearly all, except those lately built, insufficient in accommodation and in very bad repair.”32 Seymour reiterated this the following year in his report to the Colonial Secretary, explaining that “it is impossible for men badly housed, and without proper places for securing prisoners, to do their duty satisfactorily.”33 Again, in

1879, Seymour noted that “applications are still being continually made for police protection” and that

“the spread of settlement has rendered the formation of additional police stations necessary, and this,

30 Gympie Times, 25 November 1874. 31 Gympie Times, 28 November 1877. 32 Report from the Commissioner of Police for the year 1877, Journals of the Legislative Council, Session of 1878, p. 219. 33 Report from the Commissioner of Police for the year 1878, Journals of the Legislative Council, 2nd Session of 1879, p. 291.

316 in consequence of the large reduction made in the number employed, has considerably weakened the power of the police to cope with the criminal class in the larger townships.”34

Newspaper and official records suggest that the Gympie police, taking into account their lack of resources, generally performed their duty in accordance with the Police Rules. Police Commissioner

Seymour was, quite unsurprisingly, full of praise for his police. In 1873, he reported to the Colonial

Secretary that “the efficiency of the police, on the whole, cannot be considered otherwise than satisfactory; there is seldom a complaint made against them, and but few offenders succeed in evading justice.”35 Seymour was similarly glowing the following year when he wrote that “there have been very few cases of crime reported the perpetrators of which have not been arrested and brought to justice, and the police are, as a body, efficient and well disciplined.”36 Newspaper reports of police behaviour in Gympie were also generally complimentary. After one arrest, Henry Kingsmill, an onlooker, wrote that “the said officer’s conduct – under the most trying circumstances – was highly creditable to himself, and was a proof to some, if not to all that witnessed the cool and determined conduct of said officer, that he was a most efficient man and a credit to the force.”37 The main criticism levelled at the police, which will be discussed later in this chapter, was that they did not enforce the laws regulating the sale of alcohol consistently or evenly, but even this was blamed on a lack of resources rather than on the essential character of the Gympie police.38

Mark Finnane and Stephen Garton argue that by the 1880s, the majority of criminal charges in

Queensland resulted from “police arrest rather than police or civilian summons.”39 This was not the

34 Report from the Commissioner of Police for the year 1879, Journals of the Legislative Council, 1st Session of 1880, p. 331. 35 Report from the Commissioner of Police for the year 1872, Journals of the Legislative Council, 1st Session of 1873, p. 625. 36 Report from the Commissioner of Police for the year 1874, Journals of the Legislative Council, 2nd Session of 1875, p. 417. 37 Nashville Times, 2 April 1868. See also Nashville Times, 18 March 1868 in which he editor wrote that “we can but compliment the police and the detectives on the number of important captures they have made in the last week”; Nashville Times, 4 July 1868 in which the editor commended Sub-Inspector Rogers who “faithfully performed the duties of his office.” See also the recollections of Catherine Nash, “Recollections of the Rush” Gympie Times, Gympie’s Jubilee Special Edition 1867-1917, p. 13. 38 Nashville Times, 1 July 1868; Nashville Times, 29 August 1868. But also note Nashville Times, 19 September 1868 when a citizen of the One Mile complained of the uneven enforcement of alcohol laws by the police. 39 Mark Finnane and Stephen Garton, “The Work of Policing: Social Relations and the Criminal Justice System in Queensland 1880-1914 (Part II)” Labour History 63 (1992) 43-64 (p. 49).

317 case in the period prior to 1880 in Gympie where the state of the police force meant that private citizens played an important role in the administration of the criminal law. In the first months of

Gympie’s settlement, for example, a miner from the One Mile died in suspicious circumstances.

Although the miner was pronounced by Dr Byrne to have died of natural causes, citizens were told that if they “come to suspect any foul play in cases of sudden death, it is their duty to report such cases to the Magistrate, or privately to the Sub-Inspector of Police.”40 Prosecutions initiated by private citizens played a particularly important role in respect of offences against the person.

Between 1876 and 1880, of the 110 offences against the person heard by the Police Court, only 17 were brought by police.41

In contrast, property offences were more likely to be investigated and prosecuted by the police. Of the 67 property offences heard by the Police Court between 1875 and 1880, 60 were brought by police. Unlike violent offences, there was usually no relationship between the accused and the victim, and the accused was often unable to be identified by the victim. Nevertheless, police still relied on the public to report the offence and sometimes even requested assistance with their investigations. In

January 1878, for example, a “most deliberate” robbery took place at Mr Corrigan’s Miner’s Arms hotel. The offenders took a significant sum of money and disappeared into the scrub. Sergeant Walsh and several of the constables immediately gave chase. The offenders were soon apprehended, but without the money, which had been hidden. The police undertook a “strict examination” of the scrub, but to no avail.42 The solution was to offer a reward of 10 pounds to whoever found the money. The inducement was a success, and large number of citizens searched the scrub for the money, which was eventually recovered.43

Like property offences, the prosecution of public order offences was overwhelmingly the responsibility of the police. For example, between 1875 and 1880, approximately 79 per cent of

40 Nashville Times, 4 March 1868. 41 This figure is calculated by tallying the number of arrests recorded in the Police Charge Book compared to the number of cases recorded as being heard in the Court of Petty Sessions. 42 Gympie Times, 26 January 1878. 43 Gympie Times, 30 January 1878. Also see Gympie Times, 14 February 1871 for a similar episode.

318 alcohol related offences heard in the Police Court were brought by the police.44 The reason for this is that there was usually no victim of the offence other than the public at large. For the offence to be prosecuted, there had to be a sufficiently strong reason for a member of the public to go to the time and effort to initiate a prosecution.

Offences against the person

Observers from the period suggested that Gympie was generally quiet and orderly. Acting

Commissioner William Davidson reported soon after the establishment of the field that “I have pleasure in reporting that order and quiet prevail generally throughout the diggings.”45 His successor,

Henry King, likewise observed in February 1868 that “the Digging population are remarkably quiet and orderly.”46 One miner observed that “true diggers are a fine set of men, and quiet and orderly as a rule”47 and the Nashville Times even published an article expressing its editor’s astonishment “at the comparative rare occurrences of outrages of any kind.”48

These comments need to be put in context. To begin with, they were made during the first months of

Gympie’s existence. Even if this is true, the experience of the first few months is not evidence that all of the first decade of Gympie’s life was without violence. Further, it must be remembered that the comments of Davidson and King were made in reports to the Queensland legislature. It was in their interests to report that they were maintaining law and order. Many of Gympie’s first miners had also experienced earlier rushes. These observers expected Gympie to be a violent place. The fact that it did not necessarily meet their expectations should not be interpreted as meaning that Gympie was as

“quiet and orderly” as more settled and mature towns. An observer who had not experienced other gold fields, Catherine Nash, recalled that Gympie was characterised by “shouting (in more ways than

44 Calculated by comparing the arrests made by police for drunkenness with the number of cases heard by the Police Court for that period. 45 Brisbane Courier, 5 November 1867. 46 COL/A, 68/726, Queensland State Archives, Brisbane. 47 Kennedy, Four Years in Queensland, p. 212. James Nash observed to Aleck Ivimey that “I am decidedly of the opinion that Gympie was by far the quietest place”, Ivimey, The Gympie Mining Handbook, p. 7. 48 Nashville Times, 15 February 1868.

319 one), and fighting too, as they did from morning till night, and from night till morning.”49 She described that she was “often dreadfully alarmed at hearing hoarse cries of murder in the middle of the night”.50

The recollections of Catherine Nash are confirmed by the records of the Police Court, which suggest that offences against the person occurred frequently in the early period of settlement. Between 1868 and 1880, the Police Court heard 406 offences against the person. These cases were most prevalent between 1868 and 1870 and peaked in 1869 when the Court heard 88 cases (Figure 10.3). It is also likely that many similar offences were not recorded. When James Nash, the miner who discovered gold in Gympie, was assaulted while walking home one night “no one troubled to chase [the offender] and like many more of the sort at that time he escaped punishment.”51

Figure 10.3: Offences against the Person in the Gympie Police Court 1868-1880

Male Female Total 1868 63 1 64 1869 84 4 88 1870 50 9 59 1871 24 4 28 1872 31 1 32 1873 37 4 41 1874 20 6 26 1875 21 6 27 1876 16 1 17 1877 7411 1878 707 1879 21 0 21 1880 25 2 27 Total 406 42 448

Source: Journals of the Legislative Council 1868-1880

Despite suggestions from some observers that order prevailed, it is likely that Gympie was a violent society. It may not have had the character of earlier goldfields in the Australian colonies, but violence was nevertheless commonplace. This violence took place against the background of a prescriptive

49 Nash, “Recollections of the Rush”, p. 13. 50 Nash, “Recollections of the Rush”, p. 14. See also Nashville Times, 2 October 1868, in reference to the One Mile’s reputation for “pugnacity” 51 Nash, “Recollections of the Rush”, p. 14

320 and comprehensive criminal law. The law in relation to violent offences was set out in the Offences against the Person Act 1865.52 This legislation dealt with the offences of murder, attempted murder, threats of murder, various categories and degrees of assault, rape, child stealing, bigamy, concealing the birth of a child, sodomy and bestiality.

The most frequently recorded crime against the person was that of assault. In 1869, 54 offences against the person were reported in the Gympie Times. Of these, 49 were identified as assaults. Of course, just as in Nevada County, the absence of a particular crime or category of victim in the court records did not mean that crimes of that nature were not committed. Certain violent crimes did not appear in the court records because they were tolerated. This tolerance can be seen not only through the non-prosecution of certain types of violence, but also in the punishments that were imposed by the courts when such cases were prosecuted.

Violence was tolerated if it was used to legitimately and fairly resolve disputes. Aleck Ivimey observed that “the miner’s fist is his law” and that any appeal to the law “was held to be unmanly.”53

William Clark recalled that “disputes of all kinds were settled on a Sunday morning when the disputants would meet at French Charlie’s Hotel and fight it out by a bout of fisticuffs.”54 Fighting even took place near the formal institutions of law and order. One Sunday in November 1868, for example, “two men who apparently had come to the determination to find out which was the better man, proceeded to the vacant ground near the Local Court to fight.”55 The choice of the court as the location for the fight was symbolically significant. It suggests that there was no need for protagonists to hide their violence, and that informal violence could be a legitimate alternative to the courts.

If an assault was provoked, the offender was also less culpable in the eyes of the law. A provoked assault received a lesser sentence. On 14 August 1868, for example, the Police Magistrate heard two assault cases. One of these concerned the assault of a man named Freeman by a man named Moore.

52 Act to Consolidate the Statute Law of Queensland relating to Offences against the Person 1865 (Qld) 20 Vic No. 11. 53 Ivimey, The Gympie Mining Handbook, p. 15; See also Nash, “Recollections of the Rush”, p. 14. 54 William Clark, “Reminiscences of a Pioneer Octogenarian” Gympie Times, Gympie’s Jubilee Special Edition 1867-1917, p. 19. See also Nash, “Recollections of the Rush”, p. 18 where she observed that “in more than one case ... I have seen the disputants agree to settle their differences by a stand-up fight”. 55 Gympie Times, 24 November 1868.

321 The case arose out of “some insulting remarks” made by Freeman about Moore’s wife. Moore was found guilty, but was fined only 1 shilling because he was considered to be justified in retaliating.56

The second case concerned two men, Bridges and McKenna. McKenna was found to have “knocked down the plaintiff [Bridges] in the main street, without provocation, as he was merely asking his master for payment for a sign written by him” (emphasis added). McKenna was charged 3 pounds.

Similarly, A. H. Wilkin claimed that W. H. Power assaulted him on 23 August 1871. The magistrate was of the opinion that “the defendant had committed an unprovoked assault” (emphasis added) and was fined 3 pounds or imprisonment for 14 days.57 The use of violence as retaliation was endorsed implicitly by the leading members of the community. In August 1868, a “well known” member of the

Local Court was “brutally attacked” by a mob whose headquarters were “at a certain public house.”

The following day (a Sunday) the local court member returned to settle the score.58

It is striking that although Gympie was no stranger to violence, very few cases of homicide were recorded. The Supreme Court, sitting at Maryborough, heard only 8 cases of murder and 10 cases of manslaughter between 1869 and 1880. It is likely that when a homicide occurred it was prosecuted, as long as the offender could be found. At the very least, it is probable that the homicide would be reported in the press (a possible exception being the killing of an aboriginal person). When the homicide of a white person occurred, it was the subject of much discussion. For example, when

Charles Pritchard and his mother were accused of the murder of Israel Griffiths, the matter was “the only topic of conversation during the past few days”. The rarity of events of this nature is confirmed by the Brisbane Courier, which concluded that because “not since the mysterious death of Bradley in

1868 ... has so horrifying a deed disturbed the quiet so commonly”.59 The logical conclusion,

56 Nashville Times, 15 August 1868. 57 Gympie Times, 20 August 1871. See also Daniel Leary v Bernard Clarke where Clarke was sentenced to 6 months’ imprisonment, Nashville Times, 11 March 1868; James McCarthy v John Firtzgerald which dealt with trespass as provocation, Gympie Times, 30 January 1878; and the complaint of William Crompton against Henry Lewis, Gympie Times, 29 May 1869; the complaint of Davis against Cameron, who was convicted of an unprovoked assault and imprisoned for 3 months, Nashville Times, 19 February 1868. 58 Nashville Times, 18 August 1868. 59 Brisbane Courier, 8 May 1875. For other crimes, see the attempted murder at Yabber by Ah Kan, Brisbane Courier, 15 August 1870 and the murder of Theophilus Dupee, Gympie Times, 29 December 1868.

322 therefore, is that although there was a large degree of physical violence in Gympie, this did not

translate into a high homicide rate.

High levels of violence, but low levels of homicide, do not appear at first to sit easily together. One

explanation may be the absence of a gun culture in Gympie. Guns were certainly used for sport and

Gympie had an active gun club that ran competitions periodically.60 There is also evidence that some

crimes were committed with guns.61 Nevertheless, there are very few reports of the indiscriminate

firing of guns, or that citizens were consistently armed. A review of the Police Charge Book, which

lists the personal possessions found on offenders, reveals that the majority of arrested persons were

not carrying a handgun. This is confirmed by the research of Jonathan Richards, who reasons that the

handgun may not have penetrated Queensland by the 1870s.62 Thus, although violence was common,

the absence of a constantly armed population in public places meant that violent altercations may have

been less likely to result in the death of one of the participants.

Violence may also have been tolerated if it occurred in the private sphere and was directed towards

women. This is a more difficult story to recover because this violence tended to be hidden. The

Nashville Times and Gympie Times reported only 5 cases of assault against women during 1868, and 9

in 1869.63 Between 1875 and 1880 the police prosecuted only 5 cases of assault against women. It is

likely that this number grossly under-represents the true number of assaults against women. This

conclusion is drawn from the fact that there are glimpses of violence against women elsewhere in the

court records that never resulted in criminal charges being laid against the perpetrators. In a case that

was unrelated to domestic violence, Mary Ann Arnell told the court that when her husband was drunk

“he was an awful man to deal with” and that “she was always frightened of him when drunk.”64 Jane

60 Brisbane Courier, 29 January 1876; Brisbane Courier, 8 January 1876; Brisbane Courier, 5 August 1874. 61 Shooting of Theophilus Dupee, Gympie Times, 29 December 1869; larceny of a revolver, Brisbane Courier, 1 December 1871; shooting of Ebenezer Thorn, Brisbane Courier, 16 January 1869; use of a revolver to attempt suicide, Brisbane Courier, 11 November 1869. 62 Jonathan Richards, The Secret War: A True History of Queensland’s Native Police (St Lucia: University of Queensland Press, 2008), pp. 54-55. 63 The case of Mary Anne Baker v Robert Fuller reported in Nashville Times, 18 March 1868; Elliot v Elliot reported in Nashville Times, 11 April 1868; Thomas Mathers v Margaret Mathers reported in Nashville Times, 25 July 1868; Chadwick v Chadwick reported in Nashville Times, 28 March 1868; Thomas v Klein, reported in Gympie Times, 12 November 1868. 64 Gympie Times, 31 January 1874.

323 Williams testified that she was afraid that a man named Adams would do her “some bodily harm” and that “he annoyed me last Christmas.”65 Even when a case was prosecuted, the female complainant sometimes did not arrive at court and the case was subsequently dismissed.66 In her study of New

South Wales after 1880, Judith Allen explains that “police intervened rarely against husbands’ assaults of wives in the home.” The absence of women as victims in the Gympie courts was a manifestation of a wider trend in the Australian colonies.67 Violence against women in Gympie was not an offence for which offenders were required to be publicly accountable.

Even when domestic assaults were prosecuted, the clerk listed the case in the charge book as

“assaulting wife”, which suggests that in the minds of the administrators and judges, the offence was a special type of offence that must be dealt with differently. This is confirmed by the insignificant punishments that were imposed on convicted husbands. In a large number of cases, husbands were merely cautioned. When a Mr Bloome was convicted on 27 October 1877 of assaulting his wife, he was released on the basis that he keep the peace for 3 months. Similarly, when a Mr Betts was convicted on 29 December 1877 of assaulting his wife Martha and causing actual bodily harm, he was merely cautioned and discharged.68

For a case of violence against a woman to be heard and punished in the Gympie courts, some other extenuating factor was usually present. Judith Allen suggests that assaults tended to be prosecuted when they were committed outside the home and therefore impinged on public life.69 There is some evidence of this in Gympie. In November 1868, Frederick Klein was accused of assaulting Elisabeth

Thomas at a hotel. Thomas alleged that on a Sunday evening, at around 8pm, Klein exclaimed “I’ll kill you” and then threw a stone at her, cutting her, and knocking her to the ground. Judge Faircloth

65 Gympie Times, 8 September 1869. 66 Mary Anne Barker v Robert Fuller, Nashville Times, 18 March 1868; Elliot v Elliot, Nashville Times, 11 April 1868. 67 Judith Allen, “Policing since 1880: Some questions of sex” in Mark Finnane ed., Policing in Australia: Historical Perspectives (Sydney, NSW: University of New South Wales Press, 1987), p. 208. 68 Police Watchhouse Records (SRS 628, Queensland State Archives, Brisbane). See also the assault of Catherine Taylor, which was dismissed, Gympie Times, 9 March 1869; the case of the assault of a wife where the husband was merely cautioned and made to keep the peace, Gympie Times, 7 August 1869. For similar cases see Gympie Times, 27 October 1869; Gympie Times, 4 December 1869; Gympie Times, 11 December 1869. 69 Allen, “Policing since 1880: Some questions of sex”, p. 208.

324 “considered that a very aggravated assault had been committed by defendant” and fined Mr Klein 4 pounds and 15 shillings.70

Cases of indecent assault or sexual assault also rarely came before the courts. Only one case was heard in 1869. Between 1876 and 1880, only three cases of indecent assault came were heard by the

Police Court. Again, the small sample size prevents any firm conclusion, but the strikingly common features between all the reported cases suggest strongly that only those cases that were particularly aggravated were prosecuted. However, even when these cases were prosecuted, they were notoriously difficult to prove and relied on medical evidence, which was often crude and unsophisticated.

In March 1869, Judge Faircloth heard the case of James Martin, who was charged with indecently assaulting Susan Jones, a 4 year old girl. Martin was a boarder at a store kept by Sarah Jones, the girl’s mother. When Sarah Jones discovered that an indecent assault had taken place, Martin was expelled from the store. Five days later, Jones reported the incident to Constable Samuel Smyth, who then arrested Martin and brought him before the court. The court heard a number of eyewitness accounts and the evidence of Dr Theodore Byrne, who observed that there were “no marks of violence about the person” and on that basis concluded that intercourse had not taken place. Martin was found to be not guilty.71

Five years later, on 6 January 1874, John Stewart was accused of sexually assaulting Rose Ann

Williams, a thirteen year old girl. Like Martin, Stewart was a boarder who slept in a humpy at the rear of the Williams residence. Rose was asked by her mother to call Stewart for dinner. When she knocked on his door, she found him lying on his bed undressed. According to Rose, Stewart grabbed her hand, sat her on his knee, and had intercourse with her. It was suggested that this was not the first time that this had occurred, but Rose testified that she had not told her mother previously because “he

[Stewart] said if I told her he would put me down a hole.” On this occasion, however, Rose did

70 Gympie Times, 12 November 1868. 71 Regina v James Martin, Supreme Court indictments, depositions and related matters in criminal sittings (Maryborough), (SRS5521, Queensland State Archives, Brisbane).

325 inform her mother. The police were then notified and Constable Peter Palmer arrested Stewart. At the time of his arrest, Stewart said that Rose’s father had spoken to him and Stewart thought that

“he’d take no further steps about it.” When the case went to the court for trial, the evidence of Dr

John Benson was called, which was inconclusive. Stewart was discharged.72

Finally, on 1 October 1879, Edward Shaw was accused of indecently assaulting Alma Robinson, a 7 year old girl. Alma testified that on a Sunday evening the prisoner enticed her into the bush with the promise of various trinkets and flowers. Once in the bush, Alma testified that Shaw “put his hand up the leg of my drawers. He told me to give him a kiss ... he put his hand up my drawers 4 times.”

When Alma returned home, she told her mother, Harriett Robinson. Soon afterwards, Shaw confessed to the act, but argued that he would have done no such thing if he had been sober. Harriett testified that she was inclined to accept his apology and forgive him, but two hours later, her husband informed the police. Constable Matthew Lonergan then arrested Shaw and he was found guilty by the

Supreme Court sitting at Maryborough.73

Each of these cases involved accusations of particularly socially and morally reprehensible conduct and it is not surprising, therefore, that cases of this nature were brought before the court. There are hints in these cases, however, that a significant number of indecent assaults were not reported. In particular, cases involving older women are notably absent. A sexual assault case also had to clear several discretionary hurdles before it was prosecuted. This meant that the type of cases that came before the courts was determined by the power dynamics that operated within the community. To begin with, the victim had to divulge that the act had occurred. As the case of Rose Williams demonstrates, this was not always likely. Once brought to light, a decision then had to be made whether to prosecute the case. Even in these most morally reprehensible cases, there appears to have been a reluctance to prosecute. In the case of Susan Jones, the case was not reported to the police for

5 days after the initial act. Perhaps this was because there was some element of doubt as to whether

72 Regina v John Colquhann Stewart, Supreme Court indictments, depositions and related matters in criminal sittings (Maryborough) (SRS5521, Queensland State Archives, Brisbane). 73 Regina v Edward Shaw, Supreme Court indictments, depositions and related matters in criminal sittings (Maryborough) (SRS5521, Queensland State Archives, Brisbane). For further examples of “aggravated” offences, see the indecent assault of Catherine Burns, which was made more serious by the fact that she was married, Gympie Times, 28 November 1868.

326 the case could be proved, or should be prosecuted. In the case of Rose Williams, John Stewart (the accused) had discussed the case with Rose’s father and Stewart had been left with the impression that the case would not be pursued. Further, the evidence suggested that Rose’s mother was aware of a previous incident, which she had chosen not to prosecute. Finally, in the case of Alma Robinson, once the accused confessed to Harriett Robinson, she was initially reluctant to prosecute the case. If a reluctance to prosecute sex crimes is exhibited even in cases of this level of seriousness, then it is highly likely that sex crimes of a less serious nature went unprosecuted.

There may be another reason why certain sex crimes were not prosecuted: they were committed against aboriginal women. Chesterman and Galligan argue that in nineteenth-century Queensland, sexual violence against aboriginal women and children was widespread.74 Again, the criminal record in Gympie opens only the briefest and smallest window into offences of this type. On 28 April 1869, a Mr C. A. Eckman was brought before the Police Court on the charge of vagrancy. The arresting constable gave evidence that Eckman had a “piccaninny” (aboriginal child) with him. After hearing the evidence, Judge Faircloth “reminded the prisoner that he ran the risk of severe punishment for his conduct, for the law was made for the protection of blacks as well as white people.” Notwithstanding these comments, Judge Faircloth chose to discharge Eckman. This case is interesting for several reasons. To begin with, it is the only example of its kind. This may suggest that few of these offences were committed, but it is more likely that police turned a blind eye to such offences. This is even implicit in Judge Faircloth’s caution to Eckman. By explaining to the court (for the benefit of both Eckman and all those present in the court) that white settlers and aboriginal people were theoretically equal under the law, Faircloth was acknowledging that the practical operation of the law did not enforce such equality. Significantly, however, Faircloth’s verdict ultimately ran contrary to his caution. Faircloth chose to discharge Eckman rather than send the case to a higher court to be heard. The second important point is the category of offence. It is strange that Eckman was charged with vagrancy and not with sexual assault. This suggests that what Eckman was doing was regarded as distasteful (as we shall see, the charge of vagrancy was a ‘catch all’ offence designed to remove

74 John Chesterman and Brian Galligan, Citizens without Rights: Aborigines and Australian Citizenship (Cambridge, UK: Cambridge University Press, 1997). See in particular chapter 2.

327 undesirable people from the streets), but not criminal in the same sense as the offences against Alma

Robinson, Susan Jones and Rose Williams. Perhaps sexual assault against aboriginal children was not viewed as seriously as cases of sexual assault against white children.

More generally, indigenous and Chinese victims are absent from the court records. The history of

Queensland’s settlement is stained with the blood of its indigenous inhabitants. There is a growing literature on violence on the Queensland frontier and the depredations of the Native Police.75 The settlement of the Gympie region, however, was largely achieved through sheer force of numbers rather than through guns. This does not mean that there was no violence towards indigenous people, but rather that it was not necessary to the process of settlement. Nevertheless, the colonists of the

Gympie region likely carried with them the same attitudes held by settlers elsewhere in Queensland.

As Henry Reynolds has argued, “the long smouldering conflict with the Aborigines dulled the conscience of colonial Queensland conditioning the community to an acceptance of violence as the normal and justifiable means of dealing with the blacks”.76 Accordingly, the Queenslander, when discussing the goldfields generally, remarked that “[e]very white man carrying a rifle tries its range on every black fellow he meets”.77 The available evidence suggests that this also may have been the case in the Gympie region. In February 1871, in an article that referred to the trouble caused by aboriginal people in the area, it was noted that a black man named Sammy entered the hut of a miner named

Pincher while he was asleep. On waking, Pincher “fled to another tent, got a gun, and fired upon the black fellow”.78 In 1875, Warden Bligh wrote to the Colonial Secretary that “it appears to be a common practice to drive the Blacks out of the place with whips in this and other townships and when complaints are made to the police by inhabitants”.79 This could be particularly brutal. In September

1876, the Gympie Times published an account of a witness who observed three policemen, two of

75 Richards, The Secret War: A True History of Queensland’s Native Police; Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Melbourne: Penguin, 1992); Tony Roberts, Frontier Justice: A History of the Gulf Country to 1900 (Brisbane: University of Queensland Press, 2005). 76 Henry Reynolds, “The Unrecorded Battlefields of Queensland” in Henry Reynolds ed., Race Relations in North Queensland (James Cook University, 1993), p. 60. 77 Quoted in Raymond Evans, “Musketry and Terror”, in Raymond Evans, Kay Saunders and Kathryn Cronin, Race Relations in Colonial Queensland (St Lucia, Qld: University of Queensland Press, 1993), p. 50. 78 Brisbane Courier, 22 February 1871. 79 Quoted in Henry Reynolds, “Townspeople and Fringe-dwellers”, in Henry Reynolds ed., Race Relations in North Queensland (Townsville, James Cook University, 1993), pp. 156-157.

328 whom were mounted, attempting to get an aboriginal man to “move on.” The writer recalled that “the poor fellow, finding there was no escape from a horseman, he being old and a cripple, tried to take refuge in a garden, when the policeman leaped from his horse and followed him ... His assailant seemed almost determined to cut him to pieces, being an excellent hand with the stock whip and using it in is best style, at one blow fairly felling the poor fellow to the ground and his cries of mercy being unheeded as he was lashed until he got up again and hobbled off as best he could to the scrub.”80 This type of violence was commonplace and not considered to be criminal.

The story of the Chinese is less brutal, but reflects similar prejudice in the discretionary application of the criminal law. As discussed previously, the Chinese were, from time to time, forcibly expelled from the gold field with no criminal repercussions. Andrew Markus has observed that anti-Chinese meetings and fundraising were common in Gympie and that on one occasion more than 600 Chinese were forcibly expelled from the town.81 In July 1868, for example, it became apparent that the

Chinese miners were making money from mining land that had previously been abandoned by white miners, those white miners grouped together and forcibly expelled the Chinese.82

The application of the criminal law in relation to violent offences was therefore determined by popular attitudes towards violence. As in Nevada County, certain types of violence were tolerated, notably when it was used to resolve disputes or to settle differences. This tolerance of violence also grew out of, and in turn reinforced, existing relationships of power. Violence might be ignored if its victims were women, Chinese, or indigenous inhabitants.

Property crime

Stories of property crime and highway robbery provide some of the most colourful accounts of frontier life. In Gympie itself, a great many newspaper pages were devoted to stories of bushranging and armed hold-ups of the gold escort. While offences of this nature may have had a psychological

80 Gympie Times, 16 September 1876. See also a report of the police dispersing “a lot of blacks near the One Mile”, Gympie Times, 19 November 1868. 81 Markus, “Fear and hatred: purifying Australia and California, 1850-1901”, p. 272. 82 Nashville Times, 11 July 1868; Kathryn Cronin, “The Chinese Influx into Queensland’s Goldfields” in Raymond Evans, Kay Saunders and Kathryn Cronin, Race Relations in Colonial Queensland (St Lucia, Qld: University of Queensland Press, 1993), p. 280.

329 importance, property offences did not dominate the work of the Police Court. Offences of this nature made up only 12 per cent of the total number of cases heard by the Gympie Police Court between

1868 and 1880. If a property offence was heard by the Police Magistrate, it was far more likely to be a case of larceny than highway robbery. In 1869, only one case of highway robbery was reported in the Gympie Times. In that same year, the Gympie Times reported 13 cases of larceny, 1 case of robbing a dwelling, 7 cases of illegal detention of property, 3 cases of illegal use of a horse, 3 cases of obtaining money by false pretences, and 1 case of the destruction of property. Between 1875 and

1880, of the 60 property offences brought by police, 50 were cases of larceny.

The Queensland law in relation to property crime was consolidated in legislation that was passed in

August 1865.83 The seriousness with which the Queensland legislature viewed property crime is reflected in the severity of the punishments that could be awarded on conviction of a property offence.

The legislation divided property offences roughly into three categories: larceny; robbery; and burglary. In relation to larceny, there was no distinction between petty larceny and grand larceny,84 and a maximum punishment of 2 years imprisonment applied for this act. The period of imprisonment could be increased if aggravating factors were present, such as previous convictions,85 or the larceny of particular property such as a horse.86 Robbery was more serious and was punishable by imprisonment of between 3 and 14 years.87 Robbery under arms (which could be committed simply by the offender discharging a firearm during the act of robbery) was punishable by death.88

Burglary was punished by a minimum imprisonment of 3 years, with a maximum of a life sentence.89

83 An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld) 20 Vic No. 6. 84 Section 2, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 20 Victoria No. 6 (1865). 85 Sections 7, 8 and 9, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld). 86 Section 10, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld). 87 Section 41, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld). 88 Section 44, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld). 89 Section 57, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld).

330 Early commentators remarked at the lack of crime in the early days of Gympie. Alex Ivimey attested, for example, that “one extraordinary fact about early Gympie was the wonderful scarcity of offences against the pocket” and noted that “there are many diggers today who affirm that they heard of no cases of larceny in those early times.”90 This is directly contradicted by newspaper reports. From the middle of 1868, nearly every issue of the newspaper reported “petty larceny such as robbing tents.”91

In May 1868, it was noted that “scarcely a day passes during which some case of petty larceny is not reported to us, and we presume to the police.”92 Just as with violent offences, it may be that few property crimes were committed in the first months when gold was still comparatively easy to obtain.

As the gold field became more competitive by early 1868, property crime became more common.93

This is confirmed by the court records that suggest a peak in the number of offences in 1868. In that year, the Police Court heard 80 property offences. This number dropped substantially to 30 the following year, and declined to between 10 and 20 for most of the 1870s (Figure 10.4).

90 Ivimey, The Gympie Mining Handbook, p. 10. See also Nashville Times, 6 July 1868. 91 Nashville Times, 25 July 1868. See also Nashville Times, 7 March 1868. 92 Nashville Times, 2 May 1868. See also Nashville Times, 18 July 1868; 22 July 1868. 93 Probably until February 1868 when Nashville Times noted that the first robbery “of any importance” occurred in February 1868 when a cash box containing 48 pounds was taken from “under the bed where it had been placed for safety.” Nashville Times, 15 February 1868.

331 Figure 10.4: Property offences in the Gympie Police Court 1868-1880

Male Female Total 1868 77 3 80 1869 26 4 30 1870 22 1 23 1871 14 0 14 1872 639 1873 606 1874 26 1 27 1875 606 1876 8210 1877 11 1 12 1878 11 0 11 1879 819 1880 17 2 19 Total 238 18 256

Source: Journals of the Legislative Council 1868-1880

It is not surprising that 1868 saw a peak in the commission of property offences. The simple living arrangements likely created ample opportunities for property crime. The 1868 census recorded that in the rural districts of Maryborough (which included Gympie) the population of 8,409 was housed 839 wooden buildings and 1,924 tents. The census further noted that this number was likely to be a conservative estimate given the transitory nature of the population.94

Police were relied upon to investigate property offences and their work was generally praised. In

March 1868, the editor of the Gympie Times complimented the police on “the number of important captures they have made in the last week.”95 In May 1871, it was noted that “yesterday afternoon

Sergeants Swords and Scullen lodged in the lockup the thief who stole Messrs. Blackburn and

McLaughlan’s horse, saddle and bridle.” It suggested that “great credit is due to the sergeants for the determined manner in which they conducted the pursuit.”96 The fact that prosecution was mainly the responsibility of the police, however, meant that many property offences may have gone unprosecuted, either because they were not reported to police, they were not investigated properly, or the offender was not able to be found. For example, although the number of cases before the Police

94 Third Census of Queensland, Journals of the Legislative Council, 2nd Session of 1869, p. 270. 95 Nashville Times, 18 March 1868. 96 Gympie Times, 20 May 1871. See also Gympie Times, 14 April 1875.

332 Court decreased substantially in the 1870s, complaints continued to be made about the extent of property crime. In 1876, the Police Court heard only 10 cases of property crime, but in that same year the Gympie Times reported that “there is a very general impression amongst claimholders that the crime of gold-stealing is rather prevalent in the gold mines of this district.”97

It was not always easy to obtain a conviction for property crime. This was because evidence was usually circumstantial. Of the 256 cases of property crime head by the Police Court between 1868 and 1880, 84 (almost one third) were immediately discharged. If there was enough evidence to convict the offender, the courts tended to display little leniency. When a drover was convicted of unlawfully using a horse, he was sentenced to 4 months in prison.98 Similarly, when a 16 year old boy was found guilty of stealing a coat, shirt and boots, he was imprisoned for 14 days.99 An Italian miner who was convicted of stealing gold dust was sentenced to 4 months in Brisbane Gaol with hard labour.100 The Police Magistrate did not require the offence to be particularly serious before he referred the case to a higher court. Around 24 per cent of property offences heard in the Police Court were so referred. A 45 year old surveyor was accused on 25 February 1878 of stealing a silver watch, chain, and pipe, from the dwelling of Edward Bull. He was committed for trial at the District Court and on 19 March 1878 and received a sentence of 6 months’ hard labour at the Brisbane gaol.

Similarly, a Mr Giles, a 35 year old from England, was charged on 15 March 1878 with stealing a saddle and on conviction received a similar sentence of 6 months’ hard labour. On 17 April 1878, a

19 year old miner from Ireland, Mr Butler, was accused of stealing a cheque for 1 pound and 4 shillings, and a further 1 pound and 1 shilling. He was also sentenced to 6 months’ hard labour. Mary

Whybrow, in March 1876, was charged with stealing a quilt and received 2 months’ imprisonment with hard labour.101 The severity of these sentences suggests that the protection of personal property was of paramount importance and that punishments should serve as a deterrent to other potential

97 Gympie Times, 28 June 1876. See also Gympie Times, 28 November 1877. 98 Police Charge Bench Books, 5 March 1875 – 1 April 1882 (17440/324190, Queensland State Archives, Brisbane). See entry of 9 March 1877. 99 Police Charge Bench Books, 5 March 1875 – 1 April 1882, 26 September 1881. 100 Police Charge Bench Books, 5 March 1875 – 1 April 1882, 14 October 1881. 101 Gympie Times, 15 March 1876.

333 offenders. A perfect example of this attitude was the case of Murdoch Mackenzie, who was in charge of a quartz crushing machine. Mackenzie was convicted of stealing specimens of gold and was sent to Brisbane for 12 months imprisonment with hard labour. In justifying the sentence, the judge referred to the position of trust occupied by Mackenzie. He was responsible for feeding the quartz crushing machine and such a harsh penalty was inflicted to set an example for others.102 This is an explicit example of what was likely implicit in decisions of Gympie’s judges: that private property had to be protected in order to encourage economic growth.

If murder was the most significant violent offence on the Queensland statute books, the crime of highway robbery was the equivalent for property crime. As this crime had a maximum punishment of death, only the Supreme Court had jurisdiction to hear it. However, reflecting the small incidence of this crime, the Supreme Court sitting at Maryborough heard only 4 of cases of highway robbery between 1868 and 1880. The first episode occurred in April 1868 and involved three armed men who

“came out of the scrub and ordered the driver to bail up”. The report concluded that “we hope that this will be the first and last exploit of this kind perpetrated in the vicinity of Nashville”.103 The next incident occurred in January 1869, when William King was held up on the Gympie to Brisbane road, around 5 miles from Gympie. When William Bond was found guilty, he was sentenced to imprisonment for 20 years.104 The seriousness of these offences resulted in indignant commentary in the local newspapers that was equivalent to the public’s response to reports of homicide. The sentences that were inflicted on the perpetrators reflected the importance of security of property in the

Gympie region. As in Nevada County, property crime was not tolerated to any extent and was dealt with harshly.

Moral regulation

Violent crimes and property crimes captured the public imagination, but public order offences dominated the Gympie Police Court. As in Nevada County, the victim of these offences was not

102 Gympie Times, 6 November 1869. 103 Brisbane Courier, 14 April 1868, quoting Nashville Times. 104 Brisbane Courier, 30 October 1869.

334 usually a specific person, but the public in general. According to the Police Court records, alcohol was Gympie’s most prevalent and visible vice. Between 1868 and 1880, charges of drunkenness made up 30.7 per cent of all charges in the Police Court this period. The number of prosecutions for public order offences remained relatively constant between 1868 and 1880, with peaks in 1868 and

1869 and again in 1879 and 1880 (Figure 10.5).

335 Figure 10.5: Drunk and disorderly offences in the Gympie Police Court 1868-1880

Male Female Total 1868 63 2 65 1869 57 5 62 1870 36 0 36 1871 33 1 34 1872 42 9 51 1873 27 5 32 1874 35 3 38 1875 61 13 74 1876 40 0 40 1877 30 7 37 1878 35 3 38 1879 82 0 82 1880 87 2 89 Total 628 50 678

Source: Journals of the Legislative Council 1868-1880

This pattern of prosecutions does not accurately reflect the extent of drunk and disorderly behaviour in Gympie. It is more likely that the actual amount of drunkenness peaked in 1868 and 1869, and declined throughout the decade. This is confirmed by the records of the Gympie licensing court. In

1868 the licensing court granted 65 publicans’ licences, compared to 40 the following year. After

1868, the number of licences granted decreased slowly over the rest of the decade (Figure 10.6).

Because a licence had to be renewed each year, this is a good approximation of the number of liquor retailers, although it is noted that these figures do not take into account the number of illegal retailers of liquor. If the demand for liquor had remained constant throughout the 1870s, it is unlikely that the number of liquor licenses would have declined. It is more likely, therefore, that the declining number of liquor licences reflected a corresponding decline in the demand for liquor. This conclusion is confirmed both by the stories of drunk and disorderly behaviour, which were more frequently reported in Gympie’s early years, and social science research that suggests a link between availability of alcohol and the incidence of alcoholism.105

105 See, for example, Historical Sketch of Gympie, 1867-1927 (Gympie Times, 1927), p. 12; Nash, “Recollections of the Rush”, pp. 13-14; Kennedy, Four Tears in Queensland, p. 214; Nashville Times, 11 March 1868; 8 April 1868; 26 August 1868. On the links between availability of alcohol and alcoholism, see B. R. Rush, L. Gliksman, and R. Brook, "Alcohol Availability, Alcohol Consumption and Alcohol-Related Damage. I. The Distribution of Consumption Model," J. Stud. Alcohol 47 (986), 1-10; R. K. Watts and J. Rabow, "Alcohol Availability and Alcohol-Related Problems in 213 California

336 Figure 10.6: Liquor licences granted in Gympie between 1868 and 1880

Total 1868 65 1869 40 1870 37 1871 33 1872 37 1873 35 1874 33 1875 36 1876 24 1877 24 1878 22 1879 27 1880 28

Source: Journals of the Legislative Council 1868-1880

The fluctuations in the number of public order offences heard by the Police Court can be explained by reference to changing prosecution practices. The accounts of widespread drunkenness in 1868 and

1869 suggest that prosecuted offences made up only a small proportion of actual cases of drunk and disorderly behaviour; police likely turned a ‘blind eye’ to drunken behaviour. Accounts from the

1870s suggest that alcohol was not the problem that it had been in 1868 and 1869. In December 1876, it was noted that “so far during the holiday season there has been but little excessive drinking indulged in on Gympie, or at all events indulged in openly to the annoyance of the public.”106 By the middle of the 1870s, an arrest for being drunk and disorderly could cause a great deal of social embarrassment. One man who had been convicted of being drunk and disorderly wrote of “the dreaded appearance of my name in the local paper and the painful sensation the exposure would cause among my friends.”107 At the Gympie races in 1874, it was observed that “a strong body of police were present but not needed, as a more orderly set of men never met on a course. Not a single case of drunkenness was observed”.108 This not only suggests that drunkenness at public gatherings in 1874

Cities," Alcoholism: Clinical and Experimental Research 7 (1983) 47-57; J. Rabow and R. K. Watts, "Alcohol Availability, Alcoholic Beverage Sales, and Alcohol-Related Problems," J. Stud. Alcohol 43 (1982) 767-801. 106 Gympie Times, 30 December 1876. 107 Gympie Times, 7 November 1874. 108 Brisbane Courier, 5 August 1874.

337 was not the problem that it had been in 1868, but also that any cases of intemperance were more likely to be prosecuted given the strong police presence.

Public order offences were used primarily to safeguard the public welfare by removing immoral behaviour from the streets. The low conviction rates and the relatively minor punishments that convicted offenders received suggest that punishment of this offence was not a priority. At the same time, the high number of arrests suggests that it remained an important tool in the police armoury. Of the 678 prosecutions for drunkenness between 1868 and 1880, only 63.9 per cent were convicted.

Between 1875 and 1880, of the 72 convictions recorded in the Police Charge Book (that are legible),

53 resulted in a fine less than 10 shillings. Many offenders were found guilty, but released with only a caution. A typical example of this occurred in March 1872, when a woman was brought before the

Police Magistrate on a charge of drunkenness. She pleaded guilty. Inspector Lloyd, the arresting officer, stated to the Court that this was the woman’s second offence. The Police Magistrate then asked whether there was anyone to take care of the defendant’s two children, who were standing by her side in the court room. After revealing that there was not, the Police Magistrate discharged the woman and cautioned her against being arrested again for the same offence.109

Drunkenness was linked to the debate over desecration of the Sabbath. H. A. Harwood wrote, for example, that “I am quite sure from what I have seen of diggings that the practice some diggers have of getting rations on Sundays is a great source of drunkenness.”110 In an attempt to curb trading by hotels, the gold commissioner, Henry King, decreed that all public houses were required to close on

Sunday “during the hours of divine service” with full penalties to be paid on conviction.111 However, a review of cases before the Police Court published in the Nashville Times in 1868 reveals no prosecutions for Sunday trading.112 One writer noted in February 1868 that “I was struck with surprise on observing the many places doing business on the Sabbath, and that under the very nose of the police authorities.” As in Nevada County, this was presumably because Sunday was the day on

109 Gympie Times, 2 March 1872. 110 Nashville Times, 22 February 1868. See also Nashville Times, 8 April 1868 where a writer requested a patrol of police to ensure that public houses kept lawful hours. 111 Nashville Times, 22 February 1868. 112 Nashville Times, 8 April 1868.

338 which miners came into town. That same writer conceded, for example, that “with regard to provision dealers, there can be no doubt but that it is a work of absolute necessity for them to keep open on the

Sabbath.”113 In 1869, only one case of Sunday trading came before the Police Court. Two men,

Kayser and Oderstein, were found guilty of breaking the Sabbath by painting the outside of the local court building.114 It is likely that this was a symbolic prosecution. Judicial officers could not be seen to allow the court house, the formal outpost of authority on the gold field, to be painted on the

Sabbath.

The charge of drunkenness was not the only judicial weapon in the armoury of the police that could be used to uphold the moral character of the town. Between 1868 and 1880 there were 198 prosecutions for vagrancy. The charge of vagrancy proved to be very flexible and was used as a

‘catch all’ offence to clear suspicious characters from the streets.115 In June 1869, for example, a

Chinese man was “charged with being a rogue and a vagabond” after he was caught with a piece of lead on his person, which it was suggested he was using to defraud gold dealers. It was alleged that he would attach the piece of lead to the counterbalance on the gold dealer’s scales and therefore receive more gold than the amount for which he had paid. 116 If a person was charged with vagrancy, it was more likely that they would be convicted than if they were charged with drunkenness. Of the

198 prosecutions, 151 persons were convicted.

Public order offences, particularly the charges of vagrancy, drunkenness and indecent language were used by the police to control vices such as prostitution.117 Prostitution was not an offence in

Queensland, and the Contagious Diseases Act 1866 (Qld),118 which applied in Queensland’s major

113 Nashville Times, 19 February 1868. 114 Gympie Times, 24 April 1869. 115 Gympie Times, 15 September 1869. 116 Gympie Times, 1 June 1869. 117 This was also the case in New South Wales according to Allen, Sex and Secrets: Crimes involving Australian Women since 1880, p. 21. 118 An Act for the prevention of certain contagious diseases within the Colony 1868 (Qld) 31 Vic No. 40. The Act provided for the compulsory medical examination of women said to be prostitutes. See generally E. Barclay “Queensland’s Contagious Diseases Act 1868: The Act for the Encouragement of Vice – Part I” Queensland Heritage 2(10) (1974) 27-34; E. Barclay “Queensland’s Contagious Diseases Act 1868: The Act for the Encouragement of Vice – Part II” Queensland Heritage 3(1) (1974) 21-29.

339 towns, did not apply in Gympie.119 It is difficult to define accurately the extent to which prostitution was present in Gympie. Occasional references to prostitution appeared in newspaper reports, but for the most part, the vice was hidden from view. A review of the police records suggests that prostitution did exist and that the offences of drunkenness and vagrancy could be wielded by the police to control it. The case of Mary Stevens is one such example. On 15 September 1875, Stevens was charged with indecent language. Her occupation was recorded by the police as ‘prostitute’. She was found guilty and sentenced to a fine of 5 pounds, or 3 months in Brisbane Gaol. This was a severe punishment for the minor crime of indecent language (most convicted offenders received a fine of only 5 shillings), but can be explained if it is understood as a punishment for carrying on the business of prostitution rather than for indecent language. A similar example occurred in May 1879, when a woman called Jones, identified in the court records as a prostitute, was charged with having no visible lawful means of support. She was committed to Brisbane Gaol for 6 months. Between 1868 and 1880, 31 women were charged with vagrancy (Figure 10.7). The fact that this offence was used to control women and remove undesirable women from the streets is confirmed by the fact that the proportion of women charged with vagrancy was double that of all other crimes. Only 8 per cent of prosecutions for violent crime, property crime or drunkenness were brought against women. In contrast, 16 per cent of vagrancy charges between 1868 and 1880 were brought against women.

119 In places such as Brisbane, Maryborough, Cooktown and Rockhampton.

340 Figure 10.7: Female public order offences in the Gympie Police Court 1868-1880

Vagrancy Alcohol Total 1868 224 1869 358 1870 404 1871 213 1872 1910 1873 257 1874 8310 1875 11314 1876 101 1877 178 1878 134 1879 101 1880 426 Total 31 50 81

Source: Journals of the Legislative Council 1868-1880

If the enforcement of public order offences was designed to impose a moral order on Gympie, it is surprising that only a small number of aboriginal people were prosecuted under the laws. Between

1875 and 1880, only 22 aboriginal people were brought before the Police Court. The majority of these cases were public order offences. This low number conflicts directly with newspaper reports that referred continually the drunk and disorderly behaviour of the aboriginal population. In April

1868, one writer concluded that “all right-minded people must have been shocked to see several blackfellows rolling about the One Mile in a state of intoxication.”120 Another noted the “nightly disturbances by the blacks walking our streets, yelling and shouting in camp after midnight.”121 It is possible that these accounts exaggerate the extent of aboriginal drinking and drunken behaviour. The evidence also suggests, however, that aboriginal people were dealt with outside the formal legal system. With some exceptions, disputes with or between aboriginal people did not warrant judicial intervention. This view was certainly suggested by an observer of a fight between two aboriginal men in September 1868. As the men fought, a crowd of white Gympie residents gathered to watch. As the fight progressed, and it became clear that the fight was likely to end in the death of one of the combatants, the crowd continued to watch. The observer wrote to the Nashville Times to describe his

120 Nashville Times, 22 April 1868. 121 Nashville Times, 11 March 1868.

341 horror at the spectacle and lamented that aboriginal crime sat outside the formal court system. He argued that “I think it is only right they should be made to feel they are under the supervision of the police.”122

When aboriginal people did get the attention of the police, the result was not much better. One letter that was written to the Nashville Times in May 1868 referred to the disorderly conduct at a number of public houses and concluded that “if a crew of our blackfellows were the cause half the ‘row’ they would be treated rather smartly.”123 Put another way, while white citizens were allowed to defend themselves before the Police Magistrate, aboriginal people were dealt with swiftly, severely and violently.124 In September 1876, one citizen observed of aborigines that “as soon as they get drunk and noisy the easiest way to get rid of them is to complain to the police who ... chase the unfortunate wretches away.”125

The Queensland colonial government sought to regulate public morals not only by punishing offenders, but also by regulating the bars and hotels near which these moral offences were committed

(Figure 10.8 an 10.9). The chief regulatory mechanism was the Publicans Act 1863 (Qld),126 which regulated the “sale of fermented and spirituous liquor and the granting of licenses.” It provided that

“every person who shall sell in any house or place in the Colony any liquor without having obtained a license under this Act shall be liable for the first such offence to a penalty not exceeding thirty pounds.”127 To apply for a licence, a publican had to deliver to the Clerk of Petty Sessions a notice in writing of his intention to apply for a licence, and then publish that notice in a local newspaper. Each newspaper issue usually contained a number of these notices. In the issue published on 29 July 1868,

Noah Raper gave notice that he intended to apply for a licence for the Victoria Hotel, which was situated in the main street in Gympie. Henry Geary notified the public that he intended to apply for a

122 Nashville Times, 23 September 1868. 123 See also Gympie Times, 24 February 1877, which noted that “the police have at last taken action in the dispersion of blacks who have lately proved themselves so annoying to the residents on and near Surface Hill.”. 124 See, for example, a report of the police dispersing “a lot of blacks near the One Mile”, Gympie Times, 19 November 1868. 125 Gympie Times, 16 September 1876. 126 An Act to consolidate and amend the laws relating to Licensed Publicans 1863 (Qld) 27 Vic No. 16. 127 Section 3, Publicans Act 1863 (Qld).

342 licence for the Reefer’s Hotel in the main street in Gympie. Joseph Foos and John Curry applied for the transfer of a licence from William Turner of the Flagstaff Hotel, which was also in the main street of Gympie. John Patterson gave notice of his application for a licence for the Currie Hotel, located at

Currie near Gympie, and William Catherwood gave notice of his application for a licence for the

Caledonian Hotel, situated on the Caledonian ridge.128

Figure 10.8: The Criterion Hotel, Gympie (1872)

Courtesy: Gympie Regional Council Library

128 Nashville Times, 29 July 1868. See also applications of August Thorsborne, Thomas Harris and Edward Lynch. For more examples, see the applications of John Thomas Brigg for the Lambing Flat Hotel and W. Carmichael and A. Ball for the River Miners Arms, Nashville Times, 4 March 1868; applications of Richard Nash for the Reefers Exchange Hotel, Henry Farley for the Mining Exchange Hotel, William Whitely for the Commercial Tavern, Nashville Times, 25 July 1868.

343 Figure 10.9: Brisbane Hotel, Gympie (1872)

Courtesy: Gympie Regional Council Library

Once a notice was published, the applicant waited until the monthly licensing meeting for his or her licence to be granted. The records of the licensing court do not survive, but newspaper reports suggest that the early liquor licences were granted “indiscriminately and carelessly.”129 On 14 March

1868, for example, the Nashville Times printed the proceedings of the most recent licensing meeting.

Thirty-three licences were granted and no applications were refused.130 Similarly, on 12 May 1868, 5 licences were granted and no applications were refused.131 One writer observed that “the renewal of some existing licences was a disgrace to the two magistrates” and the granting of new licences

“proved how utterly unfit they [the magistrates] were to deal with such an important question”. The writer concluded that “[i]n the face of the strict requirements of the Act, licences have been granted to persons whose only pretence to publicanism has been a bar with a few showy bottles on a shelf, a cupboard of a parlour and a blank space which is intended to be covered with bedrooms and nice accommodation.”132

129 Nashville Times, 22 April 1868. 130 Nashville Times, 14 March 1868. 131 Nashville Times, 16 May 1868. See also the report on the licensing court for November 1868, Gympie Times, 12 November 1868. 132 Nashville Times, 22 April 1868.

344 As Gympie matured, licensing meetings were conducted with more formality and applications were scrutinised more thoroughly.133 At a licensing meeting held on Tuesday, 12 January 1875, the licensing court approved the transfer of Alexander Thomas’s licence for the Varieties Hotel in Mary

Street, to Henry Mills, but the decision on the application by William Robertson for a licence for the

Mt Coora Hotel was postponed to allow the police to report whether the hotel had provided sufficient accommodation.134 Similarly, at a licensing meeting held on Tuesday, 12 May 1874, the application of Theophilus Junin was considered and it was noted that the house had been “repaired and papered and the necessary stabling had been erected.” As a consequence, “after somewhat lengthy consideration it was announced that a majority granted the licence.” At the same meeting, the decision on James Jolly’s application was postponed to allow Jolly time to renovate his hotel because it was observed that “some of the rooms were poorly furnished.” Even when the court did grant licences, it was observed, for example, that L. Williams, who ran the Southern Cross Hotel “must furnish his hotel properly” and that H. Corrigan, proprietor of the Miners’ Arms, would have to

“repair the verandah of his house.”135

The legislation also imposed standards of conduct on licensees. It is unlikely, however, that many of the rules were strictly adhered to or enforced. A liquor licensee could not allow a person to “use cards or dice or any other instrument or contrivance for the purpose of gaming,”136 but only one prosecution for this offence was brought during 1868 and no prosecutions were brought between 1875 and 1880.

The few cases, and the commentary on them in the local newspapers, allow a brief glimpse into prosecution patterns. On 27 October 1868, 17 Chinese were charged with being found in a common gaming house. Their lawyer, Horace Tozer, argued that their offence was a minor one, and that only a small penalty should be inflicted. His reasoning was that the “gambling had been carried on quietly” and that even if the prisoners were guilty of gaming, they “had merely been playing their national

133 Gympie Times, 5 May 1877. 134 Gympie Times, 12 January 1875. 135 Gympie Times, 13 May 1874. 136 Section 29, Publicans Act 1863 (Qld).

345 game.”137 Each accused was fined only 10 shillings. One week later, James W. Huey pleaded guilty to allowing dice to be used for the purpose of gaming at the Union Hotel, for which he was the licensee. He was fined 4 pounds, 18 shillings. In a suggestion that it was the first prosecution of its type, Huey was warned that the full penalty of 20 pounds would be imposed in all future cases.138

A publican was also prohibited from allowing disorderly conduct to occur in his hotel. This included knowingly permitting prostitutes or persons of “notorious character” to assemble.139 Again, very few prosecutions of this offence were brought by police. One example was the case of Theophilus Junin, who was charged with allowing disorderly conduct to take place in his hotel. Junin argued that “there were some Danes in his house singing; they were under the influence of drink, and he tried to stop them but they would not do so.” Mr Junin was fined 5 shillings, and informed by the bench that “it was his duty to put out any disorderly persons or to try to do so.”140 Reports suggest that the public houses were far from orderly. In April 1868, a letter to the Nashville Times, referred to the “orgies” that took place in the public houses from sundown on a Saturday until about 2 or 3 on a Sunday morning, recommenced after dinner and, then “hourly increase[d].”141 The following month, another letter to the editor asked that “you will confer a great favour on the inhabitants of Nashville by publicly and severely rebuking some of the proprietors of public houses ... for the most disorderly manner in which they conduct their houses at a late and early hour.”142

An administrative structure for the licensing of publicans and the hotels could only be effective if the licensing regime was enforced. One criticism was that in Gympie only a small number of liquor retailers were actually licensed. The practice of ‘sly grog selling’ (the unlicensed sale of liquor) was

137 Nashville Times, 27 October 1868. 138 Gympie Times, 2 November 1868. 139 Section 31, Publicans Act 1863 (Qld). 140 Gympie Times, 11 September 1872. For some examples, see Gympie Times, 28 November 1868, William Wolfram was fined 10 shillings for allowing music in his public house without permission. In September 1877, Edward Lynch was fined 5 pounds and 5 shillings for allowing billiards to be played without a licence, Gympie Times, 1 September 1877. 141 Nashville Times, 8 April 1868. See also, Nashville Times, 20 May 1868. 142 Nashville Times, 20 May 1868. See also Nashville Times, 26 August 1868 for a letter describing “rowdyism” at the One Mile.

346 rife. Aleck Ivimey noted that nearly every store had “an odd cask or two to literally fall back on.”143

One writer suggested that there “cannot be less than 500” illegal alcohol retailers in Gympie (albeit likely an over estimation).144 In April 1868 it was noted that a “large number of persons who, even in the most public thoroughfares, retail spirituous liquors without being licensed to do so.”145 The problem continued through 1869 when the editor of the Gympie Times noted the “great and growing evil existing on Gympie of sly grog selling, and the lamentable failures there have been to suppress it.”146 As the town matured in the 1870s, the problem of sly grog selling remained. In 1871 it was noted that “it appears that the illicit sale of spirits is carried on very extensively in this district” and that “not one tenth of the parties who infringed the provisions of the Publicans Act had been caught.”147 In September 1876, the offence of sly grog selling could arguably “be committed with absolute impunity”.148 At a meeting of the publicans at the Apollonian Hall, it was held that “the

Government is morally bound to suppress sly grog selling.”149

Prosecution of sly grog selling was sporadic. From time to time, either because of increased community concern, or at the request of the police magistrate, police would ‘crack down’ on illegal sales of liquor.150 The first of these occurred in June 1868, when a “raid” commenced on “the storekeepers and others who have, since the opening of the gold field illegally supplied the public with fermented and spirituous liquors.”151 Four months later, the police made another raid on sly grog sellers. The editor of the Nashville Times noted, with perhaps some exaggeration, that “at last the teetotallers are likely to have a day of rejoicing, owing to the wholesale raid made by the police authorities on the sly grog sellers.” Nevertheless, the article noted that the enforcement of the law was not frequent, remarking that “[t]his unexpected indication of the law has created a terror only

143 Ivimey, The Gympie Mining Handbook, pp. 10, 20, Letter from H A Hardwood published in Nashville Times, 22 February 1868; Letter from B. Tyrrell published in Nashville Times, 26 February 1868. 144 Letter from B. Tyrrell published in Nashville Times, 26 February 1868. See also Nashville Times. 18 July 1868; Gympie Times, 11 March 1869. 145 Nashville Times, 22 April 1868. 146 Gympie Times, 1 May 1869. 147 Gympie Times, 1 November 1871. 148 Gympie Times, 27 September 1876. See also Gympie Times, 2 September 1876. 149 Gympie Times, 23 September 1876. 150 On 1 July 1868, for example, 9 cases of “sly grog selling” came before the Police Court, Nashville Times, 1 July 1868. 151 Nashville Times, 1 July 1868. See also Nashville Times, 27 June 1868.

347 equalled by an earthquake.”152 The sporadic enforcement of the regulations is confirmed by the fact that in circumstances where sly grog selling had previously been tolerated, storekeepers considered it to be unfair for it suddenly to be enforced. These storekeepers complained that the prevailing custom was so abruptly made secondary to the formal law.153 The editor of the Nashville Times agreed, arguing that “if the Government or Police authorities had in the first instance suppressed this description of trading[,] ... that which has been done openly under the eyes of the Police in the township, would only have existed in outside gullies and roads.” The editor complained of the selective enforcement of the law, concluding that “if the law is evaded by one class, and if its evasion is overlooked owing to instructions from headquarters, as is reported to be the case, the persons lately fined for selling without a licence may ‘pari passu’ claim a freedom from prosecution.”154

Not only was the Publicans Act 1863 (Qld) enforced sporadically, but the correspondence published in the Gympie Times suggests that police enforcement was inconsistent and perhaps arbitrary. Every licensee was required to “keep a lamp fixed over the door of his house or within twenty feet thereof lighted and to be kept burning the whole of each and every night from sunset to sunrise.”155 One observer noted that “it is scarcely consistent of the policemen to bully publicans provided with lamps because they have not lighted up after sunset when they allow several of the same class near their camp to dispense with lamps altogether.”156 Another writer observed in September 1868 that four constables arrived at the One Mile “with the long-lashed whip of the Police Act in their pockets, to scourge the eleven licensed publicans of the One Mile.” The letter noted, sarcastically, that “Sunday was tranquil. One publican was admonished by a constable for having his door open, and at the same moment a shanty on the other side of the street was full of men drinking.” The correspondent was confused that police took no notice of unlicensed shanties and even though their purpose was to “put

152 Nashville Times, 6 October 1868. 153 See the argument made in a letter where storekeepers had been allowed to sell alcohol. In the context of this tolerance, it was unfair to suddenly enforce the regulations: Nashville Times, 27 June 1868. 154 Nashville Times, 1 July 1868. 155 Section 33, Publicans Act 1863 (Qld). 156 Nashville Times, 16 September 1868.

348 the Police Act in force against the licensed publicans.”157 Similarly, a letter published in the Gympie

Times in August 1871 described the plight of a “poor unfortunate butcher sentenced to six months in the dungeons in Brisbane for selling two nobblers of grog” and questioned “how is it that the same offence is being committed hourly, daily and nightly within two hundred yards of the same spot.”158

Certainly there was an element of cooperation between the police and some publicans. The June 1868 raid, for example, was made possible by the use of police informers. This attracted significant criticism and the editor of the Nashville Times condemned the “informer who, not strengthened by the arm of the law, for the mere sake of pecuniary gain casts on one side feelings of friendship in some instances, and by a careful series of misrepresentations throws a net over his unfortunate victim, and intentionally and systematically commits a breach of confidence.” The editor requested that sly grog selling be suppressed “by legitimate means, but not by the employment of broken down gentlemen as informers.”159 Notwithstanding these criticisms, the practice continued. In January 1870, for example, an advertisement in the Gympie Times offered a reward of 20 pounds to a person who provided “such information as shall lead to the conviction of any one of the parties … who sell grog, contrary to the Act.”160

Changing levels of criminality in Gympie 1868-1880

Between 1868 and 1880, Gympie became less criminal and more orderly. Violence and property crime decreased. While it is difficult to determine the actual number of public order offences, it is likely that the rate of these offences also decreased. Further, as the town matured, its citizens increasingly became less tolerant of public drunkenness and other ‘immoral behaviour’. This pattern of crime in Gympie between 1868 and 1880 can be explained by reference to the changing moral, social and economic conditions on the gold field.

157 Nashville Times, 19 September 1868. 158 Gympie Times, 23 August 1871. 159 Nashville Times, 1 July 1868. 160 Gympie Times, 19 January 1870.

349 As in Nevada County, Gympie in its early years was predominantly young and male. In the first few days of the rush to Gympie, Catherine Nash noted that “all the male kind made for this new

Eldorado.”161 At the diggings, Aleck J. Ivimey wrote that “as many as a couple of hundred miners have been seen following a man and his wife on a Saturday night ... simply to see a female face once more.”162 In the Queensland census of 1868, well over half the population was aged between the ages of 20 and 35 (Figure 10.10). Of the population over the age of 15, men made up 86.8 per cent of the population (Figure 10.11). Children under the age of 10 formed only 12.8 per cent of the population.

Figure 10.10: Age of Gympie population in 1868, 1871 and 1876

<5 5-10 10- 15- 20- 25- 30- 35- 40- 45- 50- 55- 60+ Total 15 20 25 30 35 40 45 50 55 60 1868 670 395 323 396 1176 1862 1477 863 559 290 190 63 57 8321 1871 1078 641 445 291 404 779 862 546 334 191 124 40 45 5780 1876 1003 829 476 402 383 416 560 535 327 170 137 64 62 5364

Source: 1868, 1871 and 1874 Queensland census, published in Journals of the Legislature 1868-1876

161 Nash, “Recollections of the Rush”, p. 12. 162 Ivimey, The Gympie Mining Handbook, p. 10.

350 Figure 10.11: Ratio of males to females over the age of 15 in Gympie in 1868, 1871 and 1876

Males over 15 years of Females over 15 years Percentage of men Total population over age of age over 15 years of age 15 years of age 1868 6016 919 86.8% 6933 1871 2432 1184 67.3% 3616 1876 1827 1229 59.8% 3056

This young and male population did not intend necessarily to relocate permanently to Gympie. Its citizens moved from claim to claim. Living arrangements were simple and temporary, reflecting the lack of permanence of the town. Ivimey observed that from Mary Street, “in all directions were seen canvas tents.”163 Catherine Nash recalled that when she first saw Gympie, she was “amazed at the grotesque looking township of very primitive buildings and tents dotted all over the place.”164

By the 1870s, Gympie was evolving into a more mature and stable community. The population was older, and the proportion of women and children had increased. To use the miners’ term, Gympie was

“settling down.”165 By 1871, the percentage of men over 15 years of age had fallen from 86.8 per cent to 67.3 per cent. By 1876, the percentage had dropped even further to 59.8 per cent (Figure 10.11).

The ratio of children in Gympie also increased, reflecting the growing influence of families. In 1868,

12.8 per cent of the population was under 10 years of age. This increased to 29.7 per cent in 1871 and

34.2 per cent in 1876 (Figure 10.12). The increase in the number of women and children, and the corresponding increase in the proportion of married men (Figure 10.13), was a result of the decline of placer mining and the new industry of quartz mining, which relied on a more stable workforce. The other contributing factor was the gold was found elsewhere in Queensland during the 1870s. The rush to Charters Towers at the end of 1872, and the rushes to the Palmer in the middle of the 1870s “took away a large number of Gympie’s best men.”166 Importantly, these rushes attracted the more transitory miners, leaving a more settled and smaller community.

163 Ivimey, The Gympie Mining Handbook, p. 14. 164 Nash, “Recollections of the Rush”, p. 13. 165 Gympie Times, 29 October 1868. 166 “Historical Sketch of Gympie, 1867-1927”, p. 28.

351 Figure 10.12: Ratio of children under the age of 10 in Gympie in 1868, 1871 and 1876

Males under 10 years Females under 10 Percentage of children Total population under of age years of age under 10 years of age 10 years of age 1868 570 495 12.8% 1065 1871 902 817 29.7% 1719 1876 954 878 34.2% 1832

Figure 10.13: Number of married males and females in Gympie in 1868, 1871 and 1876

Number of married males (as a Number of married females (as a Number of married persons percentage of population over percentage of population over (as a percentage of 15) 15) population over 15) 1868 1713 (28.5%) 760 (82.9%) 2473 (35.7%) 1871 1035 (42.6%) 956 (80.7%) 1991 (55.1%) 1876 886 (48.5%) 916 (74.5%) 1802 (59.0%)

The emergence of the family in Gympie went hand in hand with the development of new moral norms

to curb the early rowdy mining culture. Although temperance associations were present in Gympie

from as early as 1869,167 it was not until the middle of the 1870s that the temperance movement truly

began to gain momentum. By 1870, various temperance societies were in operation168 and by May

1874, temperance had become a significant issue. On 16 May, the Gympie Times noted that the

Gympie temperance societies were flourishing.169 One week later, the editor noted that “another

temperance association is to be started”, the object of which was “to eradicate the customary uses of

alcoholic beverages and discourage the drink traffic by all possible means.”170 In August 1874, the

Good Templars held a demonstration where around 200 people attended to hear speakers “who

thoroughly ventilated the question of temperance.”171

The direct influence of temperance movements should not be over emphasised. In March 1876, the

editor of the Gympie Times discussed the influence of Good Templarism. He remarked that it did

“not nearly come up to the anticipations of those who established it” on the basis that it had “not acted

up to its published platform and shows no signs of being able to do so.” On the other hand, the editor

167 Nashville Times, 21 August 1869. 168 Gympie Times, 12 October 1870; 15 October 1870. 169 Gympie Times, 16 May 1874. 170 Gympie Times, 20 May 1874. 171 Gympie Times, 1 August 1874. See also the meting of St Mary’s and St Patrick’s Temperance Association, Gympie Times, 18 November 1874; the meeting of the Gympie Lodge of British Templars at which 90 persons were present, Gympie Times, 13 December 1874. See also the number of letters and articles concerning the temperance question in Gympie Times, 5 May 1877 and also Gympie Times 11 March 1876.

352 noted the personal influence of the temperance movement, citing “a score of names of persons saved by a single lodge in Gympie from the misery and fatal effects of excessive and habitual drinking.”

Further, it was argued that the movement indirectly induced greater tolerance towards teetotallers and increased the disrepute in which drinking to excess was held.172 In this way, the emergence of a temperance movement reflected and in turn reinforced the development of a new morality in Gympie during the 1870s.

A comparison between the prosecution of public order offences compared with more serious crimes is telling. In 1868, property and violent offences far outnumbered public order offences in the Police

Court. This suggests that Gympie was initially far from immune to violence, that property was relatively insecure, and that the moral behaviour of its citizens was not a priority. The number of violent and property offences declined steadily throughout the decade of the 1870s, reflecting the

‘settling down’ of the Gympie region (the exception here is a slight rise at the end of the decade, which is explained by an increase in population due to new gold strikes in Gympie at the end of the decade). The number of liquor licences granted in the Gympie region also fell steadily during the decade of the 1870s, suggesting that alcoholic amusements were playing a less important role as the town matured. In contrast, the prosecution of public order offences during this period remained fairly steady (again, with the exception of the final two years of the decade). A comparison between the first two years of the period with the final two years of the period neatly illustrates the social change that occurred over the decade (Figure 10.14). As new gold strikes were discovered and Gympie once again became a destination for prospective gold seekers, the fact that the prosecution of public order offences increased by a more significant margin than violent and property offences suggests that, in contrast to the beginning of the decade, the moral behaviour of citizens was a chief concern towards the end of the 1870s. Offences such as drunkenness that police may have ignored in 1868 were prosecuted in the second half of the 1870s. The application of the law reflected changing moral attitudes in the community.

172 Gympie Times, 11 March 1876.

353 Figure 10.14: Comparison of public order offences to property offences and offences against the person in the Gympie Police Court 1868-1880

Source: Journals of the Legislative Council 1868-1880

The pattern of tensions in Gympie

The application of the criminal law in the Gympie region was a direct reflection of social norms. The story of the criminal law in the Gympie region therefore is a story of its evolution and maturity as a town, and also forms part of a wider story of law and order on the Australian frontier. The criminal law in the Gympie region was moulded by the exercise of discretion at various levels of the criminal process. A victim chose to report the offence, or prosecute the offence themselves; the police chose to investigate the offence or to proceed with charges; and the judges chose to convict the offender and awarded what they considered to be an appropriate punishment. The relative importance of each discretionary step changed with the type of crime. In relation to violent offences, the discretionary power lay very much with the victim. In relation to public order offences, discretionary power lay more with the police. In this way, the criminal law reflected a community understanding of criminality and in turn meant that the law enshrined and reinforced gendered and racial power relationships.

354 CHAPTER 11

CRIMINAL LAW ACROSS THE PACIFIC

The criminal laws that appeared in the statute books in both Nevada County and the Gympie region shared the same essential features. In both regions, the primary violent offences were murder, manslaughter, and assault (of which there were various categories). Offenders who were convicted of the most serious of these crimes could be (and were) executed. Similarly, the trinity of larceny, robbery and burglary were the chief property offences in Gympie and Nevada County. Serious offences in these categories were also punishable by death. The similar content of the law on either side of the Pacific was a result of the shared common law heritage of Queensland and California and a similar reform and codification movement to eliminate the most brutal aspects of the law.

Development of the criminal law across the Pacific

Along with its mining and commercial law, the American colonies inherited the basic structure of the

English criminal law.1 As the colonial period drew to a close, Americans generally saw two main problems with the English law of crimes: its brutality; and the fact that the law of crimes derived from archaic English cases and was considered to be unintelligible. From the time of the American

Revolution, therefore, the reform and codification of the common law of crime was a perennial issue.2

Notwithstanding this, American law did not evolve independently of global legal forces. The

American codification movement had its origins in Europe and was most notably associated with, and influenced by, the work of reformers such as Cesare Beccaria and Jeremy Bentham. Both Thomas

Jefferson and George Washington owned copies of Beccaria’s Essay on Crimes and Punishments, and its arguments were reported in newspapers and in the work of influential writers.3 Although there was

1 While English law provided the basis for criminal law in the American colonies, there were also “significant regional variations”. The Northern colonies generally adopted criminal codes based on English law, while the Southern colonies applied English law more directly. See Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2002), pp. 6-7; Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform (Westport, CT: Greenwood Press, 1981), pp. 74-78. 2 See generally Banner, The Death Penalty: An American History, pp. 88-111. 3 Banner, The Death Penalty: An American History, pp. 91-92.

355 opposition to codification in some quarters,4 many states in the nineteenth century moved to codify their criminal laws and, in the process, threw off “many of the barbarities of the English criminal system”.5 It is impossible to classify the various American legal reformers under the one intellectual banner, but as a general principle they desired to simplify and demystify the common law of crime.

Although the American codification movement has been referred to as a “home grown” idea,6 the reality was that American reformers like William Sampson, Edward Livingston and David Dudley

Field drew variously on the Code Napoleon, and the work of Bentham and Beccaria.7

It was in this intellectual climate that the first Californian legislature met at San Jose on 15 December

1849. In creating a sophisticated legal regime from nothing, the first Californian legislators frequently borrowed legislation from other jurisdictions. As Lawrence Friedman observes, “settled matters, conventions, dead issues, and convenient ways of saying things were freely transferred from one place to another”.8 Governor Burnett initially recommended that the Louisiana Civil Code and

Code of Civil Procedure be adopted in California. This view did not prevail. Instead, the legislature adopted the English common law. Nevertheless, legislators did not believe that California’s law should be contained in a readily ascertainable body of statute. To the contrary, the first legislature passed comprehensive statutes concerning crimes, criminal procedure, civil and probate procedure, and corporations. The result was that “substantial portions of the law were in effect codified”.9 The intellectual influence of the America codifiers in California can be seen most clearly in the work of

4 Shael Herman, “The Fate and the Future of Codification in America” The American Journal of Legal History 40(4) (October 1996) 407-437 (p. 415). See also Perry Miller, “The Common law and Codification in Jacksonian America” Proceedings of the American Philosophical Society 103(3) (June 1959) 463-468. 5 Morton Hortwitz, Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992), p. 117. 6 See generally, Miller, “The Common law and Codification in Jacksonian America”. 7 Maxwell Bloomfield, “William Sampson and the Codifiers: The Roots of American Legal Reform, 1820-1830” The American Journal of Legal History 11(3) (July 1967) 234-252; Charles Noble Gregory, “Bentham and the Codifiers” Harvard Law Review 13(5) (Jan 1900) 344-357 (p. 348); Sanford H. Kadish, “Codifiers of the Criminal Law: Wechsler’s Predecessors” Columbia Law Review 78 (1978) 1098-1144, Herman, “The Fate and the Future of Codification in America”, p. 415; Friedman, A History of American Law, pp. 293-298; Charles M. Cook, The American Codification movement: A Study of Antebellum Legal Reform (Westport, Connecticut: Greenwood Press, 1981); David S. Clark, “The Civil Law Influence on David Dudley Field’s Code of Civil Procedure” in Mathais Reiman, ed., The Reception of Continental Ideas in the Common Law World, 1820-1920 (Berlin: Duncker & Humblot, 1993); John D. Bessler, “Revisiting Beccaria’s Vision: The Enlightenment, America’s Death Penalty and the Abolition Movement” Northwestern Journal of Law & Social Policy 4 (Fall 2009) 195; Cook, The American Codification Movement, pp. 187-198. 8 Friedman, A History of American Law, p. 261. 9 Ralph N. Kleps, “The Revision and Codification of California Statutes, 1849-1953” California Law Review 42 (1954) 766- 802 (p. 766); Cook, The American Codification Movement, p. 198.

356 Stephen J. Field, who drafted the Californian code of civil procedure, which was based on the work of

his brother David Dudley Field, the father of an equivalent code for New York.10 David Dudley Field

was, in turn, influenced by Livingston, Sampson and Bentham.11

Little has been written about the Californian criminal legislation.12 As discussed previously, this law

put in place a comprehensive system of criminal law. Like most Californian legislation, it was not an

original invention of legislators. Instead, it was almost an exact replica of an equivalent Illinois

statute, passed in 1833.13 Not only did the Californian legislature adopt the same structure as in the

Illinois criminal code, but it also (with minor exceptions) adopted wholesale the wording of the

Illinois legislation. That the Illinois criminal law was adopted by Californian legislators in 1850 is a

point that appears to have been missed by legal historians.14 The Illinois legislation was, in turn, an

example of the reform and codification of the common law by American reformers.

It was not just the American colonies that felt the intellectual influence of the European reformers.

From the 1760s, reformers called for the repeal of the ‘Bloody Code’ which was the name given to the

large number of capital offences that littered English criminal law.15 Law reform in the 1820s and

1830s reduced the number of capital offences, but the law remained complex and unconsolidated.16

In the same year that the criminal code was enacted into law in Illinois, a Royal Commission on the

10 Kleps, “The Revision and Codification of California Statutes, 1849-1953”, p. 767. 11 Stephen N. Subrin, “David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision” Law and History Review 6(2) (Fall 1988) 311-373, p. 317; Charles Noble Gregory, “Bentham and the Codifiers”, p. 356. 12 An Act concerning Crimes and Punishments (1850). 13 An Act relative to Criminal Jurisprudence, passed 1 July 1833, The Public and General Statute Laws of the State of Illinois (1839). Consolidated in Chapter XXX, Revised Statutes of the State of Illinois (1845). 14 This point is not mentioned by Andrew A. Bruce, “One Hundred Years of Criminological Development in Illinois” Journal of Criminal Law and Criminology 24(1) (May-June 1933) 11-49 or Orrin K. McMurray, “Seventy-five Years of California Jurisprudence” California Law Review 13 (September 1925) 445-467. Both of these articles survey the development of Californian law and refer to the origins of other legislation, but not the law in relation to crimes and punishments. Searches by the author have not revealed any work that links the criminal law of California to its Illinois predecessor. 15 Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45” Law and History Review 18(2) (Summer 2000) 397-425 (p. 406); Randall McGowen, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth Century England” Buffalo Law Review 32 (1983) 89-126. 16 Jeremy Finn, “Codification of the criminal law: the Australian parliamentary experience” in Barry S. Godfrey and Graeme Dunstall, Crime and Empire, 1840-1940: Criminal Justice in local and global context (Cullompton, UK: Willan, 2005), p. 224; Castles, An Australian Legal History, p. 156.

357 Criminal Law was appointed in Britain by Henry Brougham, the Lord Chancellor.17 The

Commission’s brief was to consider English criminal law as a whole and “produce a digest that would

replace the existing common and statute law”.18 Opposition to codification on the ground that it

threatened the deeply rooted traditions of the English common law meant that the work of the

Commission did not result in comprehensive legal reform. However, in a small consolation it did lead

to the consolidation of the statutory law of crimes in England in 1861.19

The influence of the transnational reform and codification movement was also felt in the Australian

colonies. It has been suggested that early Australian law reformers consciously applied the teachings

of Bentham and the nineteenth-century English law reformers.20 This perhaps overstates the

position,21 but it is nevertheless clear that the consolidation of statute law was a concern of colonial

lawyers.22 This was certainly the case in Queensland, which on separation from New South Wales in

1859 inherited a complex mixture of English and New South Wales law. The first attempt to define

the laws in force in Queensland was that of Ratcliffe Pring, who published an alphabetical digest of

Queensland statutes in 1862. A more comprehensive consolidation and revision of the criminal law

was undertaken by Chief Justice Cockle, Justice Lutwyche and the Attorney-General Lilley in 1866.23

This revision was based on the English criminal law, which itself had been consolidated in 1861. The

English influence is unmistakable and offences entirely unsuited for Queensland such as “stealing

deer in an unenclosed part of the forest”,24 being “found in possession of venison”,25 and “killing

17 Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45”, pp. 403- 405. 18 Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45”, p. 407. 19 Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45”, pp. 403- 405. See also Jeremy Finn, “Codification of the criminal law: the Australian parliamentary experience”, p. 224; Kercher, An Unruly Child, p. xix. 20 C. H. Currey, “The influence of the English Law Reformers of the Early 19th Century on the Law of New South Wales” Royal Australian Historical Society 23 (1937) 227. 21 J Bennett, “Historical Trends in Australian Law Reform” University of Western Australia Law Review 9 (1970) 211 (p. 211); Kercher, An Unruly Child, p. 125. 22 Kercher, An Unruly Child, p. 125; Castles, An Australian Legal History, p. 445. 23 J Bennett, “Historical Trends in Australian Law Reform”, pp. 219-220. See also Michael Tilbury, “A History of Law Reform in Australia” in Brian Opeskin and David Weisbrot ed., The Promise of Law Reform (Annandale: Federation Press, 2005), pp. 3-18; McPherson, The Supreme Court of Queensland, 1859-1960: History Jurisdiction, Procedure, pp. 110-111. 24 Section 12, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld). 25 Section 14, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld).

358 hares or rabbits in a warren in the night time”26 remained on the statute books throughout the first two decades of Gympie’s existence. The task of codification in Queensland, in the sense understood by

David Dudley Field, did not occur in Queensland until the 1890s when Sir Samuel Griffith drafted a criminal code for Queensland in which he drew on the English experience and also the Italian Code and the New York code of Field himself.27

As a result of the reception of English law in the American and Australian colonies, and the influence of the same transnational reform movements in the eighteenth and nineteenth centuries, there existed in both Nevada County and the Gympie region a comprehensive body of criminal law that covered the field of both violent and property offences. Even though the form of the law differed between the regions (the Californian legislation was a digestible ‘code’ while the Queensland legislation was merely a consolidation of criminal statutes) the substance of the law was so similar because the law had the same origins and was transformed by the same influences. More specifically, Queensland’s criminal law was based on English law, as modified in England by nineteenth-century reformers and consolidated in both England and Queensland. Likewise, the Californian legislation was a copy of the

Illinois legislation, which was, in turn, based on a codification and reform of English common law rules. As has been discussed previously, the practical application of the law did not necessarily reflect the law on the statute books. The following discussion explores the application of the law on either side of the Pacific and suggests that, with some exceptions, the practical operation of the criminal law in both regions was shaped by a similar pattern of tensions.

Performance of the law

The performance of the law also shared many similarities. Formal justice was initially administered many miles away. Local justice, to the extent that the local judges had jurisdiction, was dispensed in a rough and ready manner. There was, nevertheless, a strong adherence to the forms and traditions of

26 Section 17, An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 186 (Qld)5. 27 Geraldine Mackenzie, “An Enduring Influence: Sir Samuel Griffith and His Contribution to Criminal Justice in Queensland” Queensland University of Technology Law and Justice Journal 2 (2002) 3; Mark Finnane, “Penalty and Policy: Griffiths and the Limits of Law Reform in Colonial Queensland” Australian Cultural History 8 (1989) 84; Jeremy Finn, “Codification of the criminal law: the Australian parliamentary experience”, p. 229; Castles, An Australian Legal History, p. 446; Kercher, An Unruly Child, p. 126.

359 the law, and a corresponding intention to ensure the appearance that the rule of law was being upheld.

As each region matured, prominent court houses were erected in the major towns. These courts shared important architectural similarities, symbolising the centrality of the criminal justice system in each region.

Nevada County’s first courts were not convened in buildings that inspired obedience to the law.

Rather the saloons, hotels and stores in which early judges convened their courts reflected the rough nature of justice in the early years. Prior to the formation of Nevada County, the court was held at

Marysville, many miles from Grass Valley and Nevada City. When the court was first convened at

Nevada City, it was held in an old red building known as the ‘Red Store’. The Court soon moved to a former hotel on Broad Street, but by 1854, this building was so dilapidated that the Court was held variously in Frisbie’s Theater, Abbott’s Hall, and the Methodist and Congregational Churches.

Likewise, the first courts in Gympie were products of a similar frontier environment. The police court, the equivalent of the Justice Court in Nevada County, was convened by Gold Commissioner

King in a bark humpy. In 1867, the District Court, at this time still convened at Gayndah, was too far from Gympie to dispense efficient and regular justice. The frontier era of makeshift court houses ended earlier in Gympie than in Nevada County and by 1868, a simple court house had been built.

This building did not necessarily reflect the majesty of the law (Aleck Ivimey described it as a

“slabbed affair, with no floor”),28 but it was nevertheless a building dedicated to justice and considered to be “sufficiently good for so young a township”.29

As both regions developed, their new maturity was reflected in a movement to place law and order at the symbolic centre of social, political and economic life. In Nevada County, the new courthouse, built in July 1856, was designed to sit on a hill overlooking the town. It was designed to be a

“magnificent building”30 and a “temple of justice”.31 The Gympie Court House, built in 1876, was less physically imposing but nevertheless symbolically significant. Like its Nevada County

28 Ivimey, The Gympie Mining Handbook, p. 17. 29 Nashville Times, 16 September 1868. 30 Nevada Journal, 16 June 1854. 31 Nevada Journal, 27 June 1856.

360 counterpart, it was built on a hill overlooking the Mary Street, the commercial centre of Gympie.

Although comprised of only a single storey, each door and window was accented by large archways.

In this way, the performance of the law in both Nevada County and the Gympie region reflects a transition from informal justice that nevertheless attempted to preserve the rule of law, to more a more formal justice system that was positioned symbolically at the centre of social life.

Violent and property offences

The criminal law in both Nevada County and the Gympie region prohibited violence. Nevertheless, various forms of violence were tolerated on either side of the Pacific. Across both regions, violence that reinforced existing power relationships was often ignored. Cases of violence against women and indecent assault were rarely heard by the courts of either region. In both communities, violence against women that occurred in private was not considered to be appropriate for public resolution.

There was a tradition of covering up or ignoring offences of this type. In this sense, the two regions were linked by a gendered application of the criminal law. The most obvious explanation for this similarity is that discriminatory attitudes towards women transcended national boundaries. According to Catherine Hall, the notion of separate spheres for men and women was central to the nineteenth century British notion of empire.32 On either side of the Pacific, the primary responsibility of women was understood as the making and maintaining of households. The importance of maintaining the family unit was reinforced by the gendered application of law. In relation to the United States,

Elizabeth Peck argues that Puritan courts, for example, “placed family preservation ahead of physical protection of victims”.33 Similarly, the Australian historian Judith Allen writes of the “investment of authorities and institutions in the secrets and secrecy of sex”34 brought about by the separation of men and women into different spheres and the “masculine monopoly of public politics and culture”.35

32 Catherine Hall, “Of Gender and Empire: Reflections on the Nineteenth Century” in Philippa Levine ed., Gender and Empire (Oxford: Oxford University Press, 2004), pp. 46-47. 33 Elizabeth Peck, Domestic Tyranny (New York: Oxford University Press, 1987), p. 23. 34 Allen, Sex and Secrets, p. 1. 35 Allen, Sex and Secrets, p. 4.

361 If violence against women was ignored, violence against the indigenous inhabitants of both Nevada

County and the Gympie region was scarcely even recognised. Both regions were settled in areas that were already occupied by indigenous populations. Aboriginal tribes had long lived in the area around

Gympie (which is itself a derivation of an aboriginal name) and Nevada County was home to Amer-

Indian tribes such as the Nisenan and Maidu. Violence against these indigenous inhabitants was commonplace and the perpetrators of violence were rarely called to account by the criminal law.

There is an emerging literature on the genocide of indigenous peoples across the English speaking worlds.36 Nevada County and the Gympie region, however, appear only on the fringes of this story.

With the exception of one expedition in 1850 in Nevada County, neither region saw the hostile taming of the frontier by military or para-military groups that occurred elsewhere in Queensland and

California. Nevertheless, these wider attitudes towards indigenous people infected the attitudes of white settlers and both regions saw countless examples of unprosecuted violence towards the indigenous inhabitants.

Putting the gendered and racist application of the law to one side, a notable difference between the regions is in the circumstances that made violence tolerable, particularly violence was used to protect honour. The early newspapers of Nevada County referred frequently to ‘affairs of honor’ and the

‘honor code’. Even when these principles were not referred to expressly in newspaper accounts or in the court records, their presence was implicit. The equivalent in the Gympie region was a somewhat lesser concept of ‘manliness’. Aleck Ivimey, for example, observed of the Gympie miners that any appeal to the law, except in the case of mining disputes, “was held to be unmanly”.37

The concept of ‘manliness’ fell short of Nevada County’s ‘code of honor’ in the latter’s ability to justify homicide. Symbolic of this difference was the reporting of duels in Queensland. The Brisbane

Courier frequently reported duels in the United States and in Europe,38 but none in Queensland. The

36 See, for example, Dirk Moses and Dan Stone ed. Colonialism and Genocide (London: Routledge, 2007); Dirk Moses ed. Empire, Colony Genocide: Conquest, Occupation, and Subaltern Resistance in World History (New York: Berghahn Books, 2008); Richards, The Secret War, pp. 176-200 for a discussion of the connections between the Queensland Native Police and the forces of colonialism. 37 Ivimey, The Gympie Mining Handbook, p. 15. 38 See, for example, Brisbane Courier, 8 December 1873; 5 June 1880; 2 July 1879; 10 May 1870; 11 December 1868; 12 April 1870; 1 October 1875.

362 tone of these reports reveals the ‘novelty value’ of these acts, suggesting that they were not the type of incidents with which Queenslanders would be directly familiar. It is likely that this was for two related reasons. The American duelling tradition, inherited from the European aristocracy, matured in the Southern United States and its ‘honor code’ was dispersed throughout the nation. In contrast,

Australia was settled as a convict colony. By the time that a pastoral elite had begun to develop, the duel was increasingly becoming a relic of English history. Put simply, there was no time for a tradition to develop in Australia.39 This is not to say that honour was not important in Australia. In

Gympie, two men might fight to determine who the “better man” was.40 Alternatively, if a “few cross words” were exchanged between men, it was not uncommon for the differences to be settled by physical violence. 41 There is no evidence, however, of Gympie men using pistols to protect their character, or the existence of any of the rituals of negotiation that accompanied Nevada County’s

‘honor code’.

In contrast to violent crime, property crime was not tolerated to any extent in either Nevada County or the Gympie region. In both regions, the serious offence of highway robbery dominated public discourse, but the more mundane and everyday offences of larceny and burglary were committed with far greater frequency. Offenders who were convicted of these offences were punished severely. This similarity is explained by the fact that both regions were located on the mining frontier. Miners were attracted to both Nevada County and the Gympie region in order to make their fortune. Not only did these miners not tolerate the existence of crime that might threaten that wealth, but it was hoped that harsh punishments for this crime would have a deterrent effect. Whereas the prosecution patterns of violent crime in Nevada County and the Gympie region can be explained by the importance of discretion influenced by prevailing moral norms, the prosecution of property offences on either side of the Pacific was motivated by similar requirements for economic security.

39 Robert B. Shoemaker, “The Taming of the Duel: Masculinity, Honour and Ritual Violence in London, 1660-1800” The Historical Journal 45(3) (2002) 525-545. 40 Gympie Times, 24 November 1868. 41 Ivimey, The Gympie Mining Handbook, p. 15.

363 The application of the criminal law in relation to violent and property offences reflected the prevailing social norms in Nevada County and the Gympie region. In distinction to historians who suggest that the law was a tool for economic growth, only the prosecution of property crime in both regions fits within this paradigm. In relation to violence, the prevailing moral norms in both Nevada County and the Gympie region were more important. The content of moral norms was similar in many respects, particularly in their gendered and racial application of the law, and the evolution of the norms, which was tied to the changing demographics and growing maturity of each region. The main difference was the tolerance of certain types of violence to defend a man’s honour, which can be explained by reference to the different histories of settlement in Australia and the United States.

Moral regulation of the gold fields

Both Nevada County and the Gympie region, particularly in their early years, were characterised by alcohol, gambling, and violence, particularly on Sundays when miners came to the town for provisions. E. B. Kennedy, who visited Gympie in 1868, could easily have been speaking of Nevada

City when he described the “singing, swearing, fighting, [and] drinking” in Gympie on a Sunday.

According to Kennedy, “the noise was tremendous, while every public house was crammed with men”.42 In both regions, Sunday was a day of relaxation and entertainment. A visitor to Gympie on a

Saturday night or Sunday in 1868 might have seen “fights ... conveniently arranged in different rings lasting from one end of the street to the other”.43 In Nevada City, a visitor might see a bull and bear fight in a Nevada City amphitheatre.44 Alcohol was also central this culture of rowdiness.45

Newspaper reports and the recollections of observers reveal startling similarities. In both Nevada

County and Gympie the hotels and saloons were overflowing. Newspaper columns frequently recorded complaints of the actions of “drunken rowdies”46 and men could be seen on a Sunday lying by the side of the street in a state of complete intoxication.47 In both regions there was a culture of

42 Kennedy, Four Years in Queensland, p. 214. 43 Ivimey, The Gympie Mining Handbook, p. 9; Gympie Times, 26 August 1868. 44 Nevada Journal, 22 October 1851. 45 Ostrander, The prohibition movement in California, 1848-1933, p. 2. 46 See for example, Nashville Times, 15 February 1868; 8 April 1868; Nevada Journal, 10 March 1854; 29 October 1852. 47 Nevada Journal, 9 August 1855.

364 what Russel Ward might call ‘mateship’ fuelled by alcohol. The incentive to drink heavily was great.48

The shared rowdiness of these two regions was a result of both being infant settlements, far from the seats of justice, dominated by young males who were far from home and did not necessarily intend to make a permanent life in the new town. The nature of gold mining meant that in both regions, miners followed a cycle whereby they worked during the week and went into town on a Sunday to obtain provisions. This is consistent with observations of other regions, where it has been suggested that limited recreational opportunities combined with long periods of hard work broken by “spasmodic social contact” did not encourage moderation.49 The character of both regions was not a result of the particular character of the inhabitants, but a product of the industry of mining.

A rowdy, alcohol driven and violent social order developed in spite of laws in Nevada County and the

Gympie region that purported to regulate the public space. In Gympie, offences against the public order included charges of vagrancy and drunk and disorderly behaviour. The sale of liquor was prohibited in unlicensed premises and a licensing regime regulated amusements that could be carried on in licensed hotels. This included the prohibition of gambling and prostitution. Similar laws existed in Nevada County. Offences against the ‘public peace and tranquillity’ included disturbing the peace, and fighting in a public place. Certain types of gambling were prohibited under Californian legislation, and the legislation put in place a regime to license permissible types of gambling. Sunday laws were in force briefly, as was legislation to suppress houses of ill fame.

The presence of these moral regulations on the statute books in both regions partially confirms

William Novak’s argument that the nineteenth century was a highpoint of regulation for the public welfare. The fact that the law in each region attempted to regulate morals in a similar way suggests a shared cultural heritage. Historians over the past two decades and more have become increasingly

48 See generally Ostrander, The prohibition movement in California, 1848-1933, particularly p. 5; Ward, “The Australian Legend”. 49 Tyrrell, Sobering Up, pp. 20, 275; Ostrander, The prohibition movement in California, 1848-1933, p. 6; Jack S. Blocker, Jr., David M. Fahey, and Ian R. Tyrrell, Alcohol and temperance in modern history: an international encyclopedia (Santa Barbara, CA: ABC-CLIO, 2003); Blocker, American temperance movements: cycles of reform; William J. Rorabaugh, The Alcoholic Republic (New York: Oxford University Press, 1979), pp. 149-167.

365 aware that ideas about morality were not confined to national borders.50 One such connection between Australia and the United States was the influence of the temperance movement. The temperance movement originated in the United States, but as it matured it became increasingly international. The best early example of a transnational temperance organisation is the Good

Templars, which emerged in the 1850s in New York.51 By the mid 1870s, the fraternal organisation

“occupied every inhabited continent” and lodges of the Good Templars had “sprouted throughout the

British Empire”.52 In Nevada County, temperance movements were led by evangelical clergy and were strongly linked with fraternal organisations such as the Sons of Temperance and the Independent

Order of Good Templars. Likewise, in Australia, fraternal organisations began to flourish during the southern gold rushes.53 The development of temperance as an issue in Australia was connected to its emergence as an international movement. This movement is perhaps best exemplified in the work of the Woman’s Christian Temperance Union, but prior to the inception of the WCTU in Australia, the

Good Templars had developed into a “genuinely international society” with a “sizable transoceanic membership and a powerful central organisation” that has spread to Australia by the 1870s.54 As discussed previously, the Good Templars had large followings in both Nevada County and the

Gympie region. Its members were active in local politics and in local reform movements. Although its direct influence on changing moral norms is questionable, its presence undoubtedly lent momentum to moralising movements in both regions during the period of consolidating and maturing early frontier settlement.

On both sides of the Pacific, the similar economic and geographic conditions bred a similar climate of social disorder. Attempts to control this disorder by drafting laws to regulate morality were remarkably similar. This was a result of shared cultural values and the influence of moralising

50 See, for example, Ian Tyrrell, Woman’s world/Woman’s empire : the Woman’s Christian Temperance Union in international perspective, 1880-1930 (Chapel Hill: University of North Carolina Press, 1991). 51 David M Fahey, Temperance and Racism: John Bull, Johnny Reb, and the Good Templars, p. 6. 52 Fahey, Temperance and Racism: John Bull, Johnny Reb, and the Good Templars, p. 14. See also Ian Tyrrell, Woman’s World/Woman’s Empire: The Woman’s Christian Temperance Union in Historical Perspective, 1880-1930 (Chapel Hill, NC: University of North Carolina Press, 1991), pp. 16-18. 53 Susan Keen, “Associations in Australian History: their contribution to social capital” The Journal of Interdisciplinary History 29(4) (Spring 1999) 639. 54 David M Fahey, Temperance and Racism: John Bull, Johnny Reb, and the Good Templars, p. 5.

366 movements that transcended the nation state and found a home in both Nevada County and the

Gympie region.

Policing the gold fields

The policing of the criminal law is the area in which the legal story of Nevada County and the

Gympie region most clearly differs. The most striking difference between the Gympie region and

Nevada County in relation to the prosecution of crime was that the Gympie lower courts heard many more cases than the equivalent courts in Nevada County. The Gympie Police Court heard 2207 criminal cases between 1868 and 1880. The Justice Courts in Nevada County (which had roughly equivalent jurisdiction) heard significantly fewer cases.55 In contrast, the prosecution of more serious cases reveals more similarities. The Nevada County Court of Sessions and District Court heard 203 cases between 1856 and 1863. The Gympie District Court and the Queensland Supreme Court (sitting at Maryborough) heard 154 cases. This difference is explained by the fact that Gympie had the benefit of a professional police force. Police in both regions investigated and prosecuted serious offences, but only the professional Gympie police had the resources to enforce breaches of the moral regulations on a large scale. It was these prosecutions that made up the vast majority of the 2207 cases that were heard in the Police Court.

It has been suggested that the tyranny of distance was the primary reason for the difference in policing practices between California and the Australian colonies. Michael Sturma, for example, argues that

“California was virtually a wilderness when gold was discovered”, but “the Australian goldfields were within reasonable proximity of established population centres”.56 More significant, however, was the institutional difference between the police in Nevada County and Gympie. The police in Nevada

County were appointed variously by the County, each township, and each city. In contrast, the police in Gympie were professionals who were appointed and supervised by the Queensland colonial government.

55 There is no record of the exact number, but it was previously estimated to be around the same number as heard by the Nevada County Court of Sessions, which is around 200 between 1856 and 1863. 56 Michael Sturma, Vice in a vicious society: crime and convicts in mid-nineteenth century New South Wales (St. Lucia: University of Queensland Press, 1983), p. 24.

367 Police reform in the nineteenth century, which began in Britain and influenced reformers in Australia and the United States, sought to professionalise policing. The Queensland police force was constituted along these modern lines and deployed to the populated districts. The consequence was that although Gympie had no town government, its sizable population meant that it was still supplied with a small police force. In the United States, historians of police reform have linked the growth of a police force to the development of urban bureaucracies.57 In Nevada County, where the city governments were non-existent or poorly funded, the region was left with the older tradition of policing through sheriffs and temporary deputies.58 Thus, the history of police in both the United

States and the Australian colonies was affected by transnational movements to reform policing. This movement had a direct impact on policing in Gympie, but the reforms did not take root in Nevada

County because the police force’s institutional structure meant that reform occurred at the city level and not at the state or national level.

The structural differences in policing on either side of the Pacific should not obscure the similarities between the operation of the police force in each region. Notwithstanding Gympie’s professional force, it still did not have the resources to effectively police the region. This meant that in both regions, the police relied on an informal partnership with the local population. In order for violent offences to be prosecuted, they usually had to be reported by victims to police, or prosecuted by the victims themselves. Similarly, in the investigation of property offences, the police of each region often called upon the local population for assistance. The involvement of the local population added an extra layer of discretion to the criminal process on either side of the Pacific, which meant that the criminal law was moulded more easily to the prevailing moral norms.

Notwithstanding the involvement of the local population in both regions, institutional differences meant that the local population took a more active role in the policing of Nevada County. This explains the prominence of vigilante activity in Nevada County and its relative absence in the

57 For example, Eric H. Monkkonen, Police in urban America, 1860-1920 (Cambridge, UK: Cambridge University Press, 1981). 58 Friedman, A History of American Law, p. 213.

368 Australian colonies.59 This difference has traditionally been explained as emerging from a greater

British respect for law and order. This was certainly the view of colonial Australians. David

Goodman suggests that gold rush commentators in Victoria praised the “natural love of order” that

“characterised the British people”.60 Victorians had a strong sense of how their society should differ from that of California.61 The evidence suggests, however, that Californians had no less commitment to the rule of law. As Goodman notes, the difference between the two regions was in the role of government and the supervisory role of the police. The rhetoric of the Nevada County vigilantes suggests that they had no confidence in the government to enforce their vision of law and order.

Thus, when vigilante ‘justice’ was meted out, it was done while preserving the symbolism of the law.

This legitimised the extra-legal tradition, but also affirmed the commitment of Californian citizens to law and order. Vigilantism in Nevada County was, in this sense, socially constructive rather than socially destructive.62 This is not to say that vigilantism was not brutal and unjust, but that it was an attempt by the citizens to enforce law and order rather than any tendency towards anarchy or social protest.

Out of the two regions, only the Queensland government was in a position to provide any form of regulation. Thus, rather than take the law into their own hands, the citizens of Gympie tended to turn to the Government for the solution to their grievances.63 In relation to sly grog selling, for example, publicans petitioned the Government to “do their own dirty work” and enforce liquor licenses.64

When the number of mining accidents caught the attention of the population, the Gympie Times made a case for the “appointment of an Inspector to save human life from mantraps in the shape of bad and dangerous machinery”.65 The presence of Government in the everyday lives of Gympie citizens,

59 Sturma, Vice in a vicious society : crime and convicts in mid-nineteenth century New South Wales, p. 24. 60 David Goodman, Gold Seeking, p. 65. 61 David Goodman, Gold Seeking, p. 68. 62 These terms have been suggested by Richard Maxwell Brown. See Brown, Strain of Violence: Historical Studies of American Violence and Vigilantism. 63 See, for example, the comment that “there is far too much tendency in this colony to fly to ‘the Government’ with our grievances”, Gympie Times, 2 September 1876. 64 Gympie Times, 2 September 1876. 65 Gympie Times, 10 June 1876. See also Gympie Times, 14 November 1874. On the Australian tendency to turn to government to maintain law and order, see Goodman, Gold Seeking, p. 104.

369 therefore, meant that the population turned to the administrators of the law to solve problems of law and order, rather than enforcing their own visions of law and order.

Pattern of tensions across the Pacific

While different in some respects, the application of the criminal law on either side of the Pacific was generally shaped by the same pattern of tensions. The prosecution of violent offences was shaped by notions of gender, race, and a moral idea of what type of violence was actually criminal. Property offences, on the other hand, were not tolerated at all. This grew from a desire to protect personal property and in turn to promote economic security. In both regions, attempts were made to regulate the morality of the population. The presence of a professional police force meant that this was more successful in Queensland, but as a practical matter, the elimination of rowdiness and disorder owed more to changing moral norms than to the enforcement of the criminal law. Indeed, the practical operation of the criminal law was substantially influenced by the demographic realities affecting the regions on either side of the Pacific. Both regions were characterised by a predominantly male population in their early years. As each region matured, the dominance of males grew less pronounced and the symbols of civilisation became more widespread. In Nevada City, the school age population increased by almost half between 1853 and 1856. Similarly, in the Gympie region, the percentage of children under the age of 10 more than doubled between 1868 and 1876. As family life became more pronounced, the church assumed a more prominent place in both regions and temperance organisations began to flourish. Put simply, in both regions, levels of crime and disorder were tied to each region’s evolution and growing maturity.

370 CHAPTER 12

LAW AND SOCIETY ACROSS THE PACIFIC

The history of law cannot be separate from its social, economic, geographic, and political context.

Each of these factors influenced both the text of the laws, and their application. Nevertheless, in the first half of the 20th century, legal history was written as a history of laws divorced from their wider context. Legal history was written “not as history, but rather as law”. 1 This problem was appreciated by Daniel Boorstin as early as 1941 when he called on legal historians to transcend the conceptual boundaries of their discipline and recognise that “legal history is a part of social history”.2 Since the

1950s American historians such as Willard Hurst, Lawrence Friedman, Morton Horwitz, William

Novak and Christopher Tomlins, and Australian historians such as Alex Castles and Bruce Kercher, have taken up this challenge. The historians who write in this tradition have identified and categorised the forces that operated within nineteenth-century law on either side of the Pacific, and have explored the relationship between law and the society in which it operates. In this way, legal history has been integrated into the wider national historiography in Australia and the United States.

In explaining the function and evolution of law in the nineteenth century, historians have focussed on various themes. When discussing the role of government, some US historians have proposed that the development of the law was characterised by federal inactivity, while others have argued that the nineteenth century was a high point in government regulation. In explaining legal development, it has been suggested that the law evolved out of a community consensus, that the law reflected the needs of big business and that the law contained within it a gender, race or class bias. It is clear, therefore, that legal historians have offered a multitude of different explanations for the function and evolution of law in the nineteenth century. Perhaps the reason for this is that there is no single explanation for the development of law. Indeed, the tendency to see one dominant force operating within the law may be a product of historical research that has tended to confine itself to a particular law or subject area. As

1 David H. Flaherty, “An Approach to American History: Willard Hurst as Legal Historian” The American Journal of Legal History 14(3) (July 1970) 222-234 (p. 225). 2 Boorstin, “Tradition and Method in Legal History”, p. 436.

371 previous chapters have suggested, the law in relation to sexual assault, for example, reveals different social, economic and legal forces at work to the law of contract, or the law of corporations.

Rather than seek to prove or disprove any one paradigm, it is more useful to think of each explanation as identifying one of many forces that operated within the law. If this approach is adopted, the task becomes one of identifying the pattern of forces (or tensions) that gave the law its shape and consistency. The utility of this method is seen most clearly when a regional approach is taken to the analysis of law. This allows the historian to study the pattern of tensions that operated on the entire body of law in a region, rather than focussing on the specific tensions that operated within a particular category of law. Nevertheless, an argument that legal systems derive their shape from a shifting pattern of tensions provides little assistance unless an attempt is made to identify the nature of those tensions and the shape of that pattern.

Much like a kaleidoscope, the pattern of the law in Nevada County and the Gympie region had many layers. As each layer is probed, a further pattern emerges. Both regions saw a conflict between a desire to impose law from above, and the operation of law from below. Law from below refers to the way in which the application of the law was moulded by each community’s social norms.

Community consensus in many areas of law was the desire to maximise productivity. In this sense, the placer mining laws, the quartz mining laws, the commercial and corporate laws and even the law in relation to property crime on either side of the Pacific were all developed and applied in each region to maximise economic growth. But to speak of a consensus is itself misleading. There was no one view of what constituted productivity, or even that productivity was a universal aim. To take mining law as an example, the law that a large mining company desired in order to maximise its productivity was very different to the law that a small partnership of Chinese placer miners might have desired. Similarly, while the large company and the Chinese partnership both sought to maximise their economic welfare, it is difficult to imagine that the Nisenan in Nevada County, or the aboriginal tribes in the Gympie region shared this view. Thus, the concept of ‘community consensus’ refers to the consensus of those who were loudest and had the most influence. This meant that in enhancing productivity, the application of the law tended to favour the interests of the entrepreneurial

372 elite at the expense of the less influential smaller miners, women, non-white foreigners, and indigenous inhabitants. To put it in terms familiar to critical legal historians, the application of law that sought to ‘release the economic energy’ of the goldfields had embedded within it class, gender and racial bias.

The application of law was not always driven by a cold economic calculus of productivity. On both sides of the Pacific, the application of the criminal law in relation to violence was determined by social attitudes. These attitudes were not a result of economic concerns, but a result of the particular nature of early mining settlements. As the demographics of both Nevada County and the Gympie region changed, and as schools, churches and family assumed more importance, popular attitudes towards violence also changed. Here, too, the gendered and racial prejudices that were embedded in the law and reinforced by it are revealed. Violence that grew out of existing power structures, or was directed towards maintaining them, was tolerated. Unprosecuted violence against women, indigenous inhabitants, and the Chinese occurred on both sides of the Pacific.

Local, state and national legislative bodies attempted to impose law on the local populations in what can be termed ‘law from above’. William Novak has been most prominent in recognising this trend.

Novak argues that the nineteenth century was distinctive for its regulation for the public welfare. This is certainly true in relation to some aspects of the legal order. Corporations law is one example in which the governments of both California and Queensland legislated to allow artificial bodies to engage in the business of mining. So too is the criminal law, where both governments legislated to impose one particular view of morality on the region. Novak has been criticised, however, for not fully investigating the extent to which the regulations were enforced.3 The story of Nevada County and the Gympie region suggests that this criticism has merit and that enforcement of regulations should not be assumed.

The bureaucracies of Nevada County and the Gympie region were in no position to enforce their regulations. To the extent that regulations were enforced, they were enforced by the community.

3 For example, Harry Scheiber’s review of Novak’s work in Harry N. Scheiber, "Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America", Yale Law Journal, 107 (1997), 823.

373 That is, either by the market (in relation to economic regulation) or by informal social sanctions (in relation to moral regulation). The failure of the government to effectively enforce its regulations led to a competition between the law being imposed from above, and the application of the law from below. This can be seen most clearly in relation to mining speculation, which flourished in Nevada

County and the Gympie region in the early years of quartz mining. Prospectuses of mining companies, statements of promoters, and the content of annual reports, often contained misinformation that was calculated to induce investment. Companies only became more responsible as investors became more sophisticated and discerning. Similarly, moral regulations, as we have seen, had little effect on changing behaviour. More important was the changing nature of society which translated into changing moral norms.

The law had the effect of, in various guises, safeguarding private property, promoting short term productivity, and enforcing public morality. These effects were at the expense of individual autonomy, the physical environment and the rights of minority groups. This was not a result of the operation of one dominant force in the lawmaking process. Instead, government regulation, government inactivity, informal customs, and judicial lawmaking worked together to create a legal order on either side of the Pacific. This is not to suggest that the dominant paradigms of legal historians such as Hurst, Horwitz, Friedman and Novak do not have some use. Rather, that each of these explanations forms one part of a greater pattern of tensions between competing forces in the law. Understanding the legal systems in Nevada County and the Gympie region in this way allows a clearer picture of the precise role of the law in nineteenth-century societies, and makes clearer important parallels between the two regimes on either side of the Pacific.

Towards a more international legal history

Legal systems operate within geographic boundaries. These boundaries expand and contract depending on the type of law. In California, cases were decided in regional, state and federal courts; legislation was drafted in state and federal legislatures. In Queensland, cases were decided in regional and colonial courts, while legislation was drafted in the colonial legislature. For this reason, the story

374 of law in California and Queensland (and indeed, the United States and Australia) is often told within particular boundaries. A good example is the seminal study by E. Merrick Dodd of limited liability in

Massachusetts where he notes that “[s]ince the development was one of legislative rather than judicial lawmaking and since the legislature of each state was influenced only to a limited extent by what its neighbours were doing, the development can best be studied on a state-by-state basis.4

In this legal and historiographical context, it is unsurprising that legal historians who have searched for a paradigm to explain the development of law in each of Australia and the United States tell a story that implicitly entrenches the distinctive nature of each national regime. Morton Horwitz in his seminal work, The Transformation of American Law, argues that judges in the United States framed

“general doctrines based on a self-conscious consideration of social and economic policies”.5 By confining his discussion to the impact on American legal institutions of the nation’s social and economic policies, Horwitz implicitly confirms the distinctive nature of American law. Even William

J. Novak, who notes the dangers of exceptionalism and credits transatlantic customs and traditions for important aspects of American society and government nevertheless begins his excellent exposition on nineteenth-century government regulation with the observation that “[a] distinctive and powerful government tradition devoted in theory and practice to the vision of a well-regulated society dominated United States social and economic policymaking from 1787 to 1877”.6

It is unquestionable that the work done by historians to unravel and explain the legal history of particular nations and regions is invaluable. However, these national or regional legal histories tend to obscure the connections, transfers and exchanges of law between nations, and the similarities in the development of law in different geographic settings. Bruce Kercher, in calling for a more international legal history, suggests that “it is time to look at cross-Pacific influences”7 and “the circulation of legal ideas” including the “multi-directional influences on official and popular

4 Dodd, “The Evolution of Limited Liability in American Industry: Massachusetts”, p. 1352. 5 Horwitz, The Transformation of American Law, p. 2. 6 Novak, The People’s Welfare, p. 1. 7 Kercher, An Unruly Child, p. 204.

375 thought”.8 This thesis, through a comparison of the law that operated in Nevada County and the

Gympie region is an attempt to show the possibilities of this more international legal history. The comparison reveals that the same pattern of tensions gave the legal regime in each region a substantially similar shape. While there were certainly differences between each region, these differences should not obscure the substantial similarities, and the fact that an analysis of the similarities can illuminate the shared influences between the regions.

A more international legal history can be written by considering each legal regime as a system of

‘inputs’ and ‘outputs’. The ‘output’ is the actual content of the law (including both the text of the law and its practical operation). The ‘inputs’ of the law are those forces (the pattern of tensions) that determine the ‘outputs’. By investigating the nature of the ‘inputs’ and the extent to which they transcend national boundaries it is possible to discuss the development of national legal systems in an international context.9 This thesis has considered four main ‘inputs’: the influence of a shared English legal heritage; the exchange of laws between nations; the influence of social norms on the law; and the influence shared geographical and geological settings. These ‘inputs’ can be used as convenient starting points for accessing a transnational history of law.

The comparison in this thesis has taken the legal systems of two regions as a starting point, demonstrated the similarities between them, and identified briefly some of the transnational influences that contributed to these similarities. Comparison, however, is not the only method of writing a more international legal history. Future studies may focus on one, or more, of the transnational ‘inputs’ and document the global circulation of these ideas and philosophies and their corresponding impact on national legal systems. Alternatively, historians may focus on national legal systems, but consider more broadly the international forces that gave that legal system its shape. These future approaches build on the work that historians have done (and continue to do) in examining and analysing the nature of national legal systems, but they also recognise that, just as historians of law have incorporated into their stories the connections between law and society, it is now time to recognise

8 Kercher, An Unruly Child, p. 205. 9 Scheiber, “At the Borderland of Law and Economic History: The Contributions of Willard Hurst”, pp. 746-747.

376 that national legal histories are connected by shared influences that cut across national boundaries.

By conceiving of legal regimes as being shaped by shifting patterns of tensions, defining the pattern of those tensions, and then connecting those patterns across national borders it is possible to write a more complex, interesting, and transnational version of legal history.

377 BIBLIOGRAPHY

Archival Collections

United States

Bancroft Library, University of California, Berkeley, California

California State Archives, Sacramento, California

California State Library, Sacramento, California

Doris Foley Library, Nevada City, California

Searls Historical Library, Nevada City, California

Australia

Gympie Historical Library, Gympie, Queensland

Mitchell Library, Sydney, New South Wales

Oxley Library, Brisbane, Queensland

Queensland State Archives, Brisbane, Queensland

Newspapers

California

Grass Valley Telegraph

Nevada Democrat

Nevada Journal

Sacramento Transcript

Queensland

Brisbane Courier

Gympie Times

Maryborough Chronicle

Nashville Times

Legislation

California

An Act adopting the Common Law, Ch. 95, Laws of the State of California, 1st session (1850)

An Act Amendatory to and Supplementary to an Act entitled "An Act concerning Crimes and Punishments", Ch. 110, Laws of the State of California, 7th session (1856)

An Act concerning Corporations, Ch. 128, Laws of the State of California, 1st session (1850)

An Act concerning Crimes and Punishments, Ch. 99, Laws of the State of California, 1st session (1850)

An Act concerning Lawful Fences, and Animals trespassing on Premises lawfully enclosed, Ch. 49, Laws of the State of California, 1st session (1850)

378 An Act concerning Licences, Ch. 39, Laws of the State of California, 3rd session (1852)

An Act concerning Licenses, Ch. 39, Laws of the State of California, 3rd Session (1852)

An Act Concerning Offices, Ch. 104, Laws of the State of California, 2nd session (1851)

An Act concerning the Courts of Justice of this State and Judicial Officers, Ch. 180, Laws of the State of California, 4th session (1853)

An Act concerning the Courts of Justice of this State, and Judicial Officers, Ch. 1, Laws of the State of California, 2nd session (1851)

An Act concerning Toll Bridges, Ch. 10, Laws of the State of California, 2nd session (1851)

An Act creating and regulating Public Ferries, Ch. 35, Laws of the State of California, 1st session (1850)

An Act defining the rights of husband and wife, Ch. 103, Laws of the State of California, 1st session (1850)

An Act for the better regulation of the Mines, Ch. 97, Laws of the State of California, 1st session (1850)

An Act for the relief of insolvent debtors and protection of creditors, Ch. 34, Laws of the State of California, 3rd session (1852)

An Act relating to Bills of Exchange and Promissory Notes, Ch. 100, Laws of the State of California, 1st session (1850)

An Act relative to Bonds, Due Bills, and other instruments in writing, and making them Assignable, Chapter 121, Laws of the State of California, 1st session (1850)

An Act repealing the charter of the City of Nevada, and to provide for the disposition of the property and payment of the debts of said city, Ch. 112, Laws of the State of California, 3rd session (1852)

An Act to Authorize Married Women to Transact Business in Their Own Name as Sole Traders, Ch. 42, Laws of the State of California, 3rd session (1852)

An Act to enforce the payment of licenses in this State, Ch. 49, Laws of the State of California, 4th Session (1853)

An Act to exempt the homestead and other property from forced sale in certain cases, Ch. 31, Laws of the State of California, 2nd session (1851)

An Act to fix the Compensation of County Judges and Associate Justices of the Court of Sessions, Ch. 134, Laws of the State of California, 1st session (1850)

An Act to incorporate the City of Nevada, Ch. 82, Laws of the State of California, 2nd session (1851)

An Act to licence gaming, Ch. 8, Laws of the State of California, 2nd session (1851)

An Act to organize the County Courts, Ch. 92, Laws of the State of California, 1st session (1850)

An Act to Organize the Court of Sessions, Ch. 86, Laws of the State of California, 1st session (1850)

An Act to organize the District Courts of the State of California, Ch. 33, Laws of the State of California, 1st session (1850)

An Act to organize the Supreme Court of California, Ch. 14, Laws of the State of California, 1st session (1850)

An Act to prescribe the duties of Sheriffs, Ch. 106, Laws of the State of California, 1st session (1850)

An Act to prescribe the duty of Constables, Ch. 112, Laws of the State of California, 1st session (1850)

An Act to prevent Obstructions in Navigable Streams, Ch. 74, Laws of the State of California, 1st session (1850)

379 An Act to prohibit barbarous and noisy amusements on the Christian Sabbath, Ch. 46, Laws of the State of California, 6th session (1855)

An Act to prohibit lotteries, Ch. 28, Laws of the State of California, 2nd session (1851)

An Act to prohibit lotteries, raffles, gifts, enterprises, and other schemes of a like character, Ch. 75, Laws of the State of California, 6th session (1855)

An Act to provide for the incorporation of Cities, Ch. 30, Laws of the State of California, 1st session (1850)

An Act to provide for the incorporation of Towns, Ch. 48, Laws of the State of California, 2st session (1850)

An Act to provide for the Protection of Foreigners, and to define their liabilities and privileges, Ch. 37, Laws of the State of California, 3rd session (1852)

An Act to provide for the Protection of Foreigners, and to define their liabilities and privileges, Ch. 44, Laws of the State of California, 4th session (1853)

An Act to regulate elections, Ch. 38, Laws of the State of California, 1st session (1850)

An Act to regulate proceedings in Civil Courts, in the Courts of Justice in this State, Ch. 5, Laws of the State of California, 2nd session (1851)

An Act to regulate the coining of money by individuals, Ch. 13, Laws of the State of California, 2nd session (1851)

An Act to Repeal An Act for the better regulation of the Mines, and the government of Foreign Miners, Ch. 108, Laws of the State of California, 2nd session (1851)

An Act to Repeal An Act to provide for the Protection of Foreigners, and to define their liabilities and privileges and to revise the original Act, Ch. 119, Laws of the State of California, 7th session (1856)

An Act to suppress Gaming, Ch. 103, Laws of the State of California, 6th session (1855)

An Act to suppress houses of ill-fame, Ch. 67, Laws of the State of California, 5th session (1855)

Australian colonies

Act for the Management of Gold Fields 1874 (Qld) 38 Vic No. 11

Act to Consolidate the Statute Law of Queensland relating to Offences against the Person 1865 (Qld) 20 Vic No. 11

An Act for the incorporation regulation and winding up of trading companies and other associations 1863 (Qld) 27 Vic No. 4

An Act for the prevention of certain contagious diseases within the Colony 1868 (Qld) 31 Vic No. 40

An Act to Amend the Law relating to the Incorporation and Winding up of Gold Mining Companies and to amend “The Companies Act 1863” so far as it relates to such Companies 1875 (Qld) 30 Vic No. 9

An Act to Amend the laws relating to the Gold Fields 1855 (Vic) 18 Vic No. 37

An Act to amend the laws relating to the Gold Fields 1857 (NSW) 20 Vic No. 29

An Act to Consolidate and Amend the laws relating to Bills of Exchange, Promissory Notes and Cheques 1867 (Qld) 31 Vic No. 15

An Act to consolidate and amend the laws relating to Licensed Publicans 1863 (Qld) 27 Vic No. 16

An Act to Consolidate and Amend the Laws relating to Small Debts Courts 1867 (Qld) 31 Vic No. 29

An Act to Consolidate and Amend the Laws relating to the Police Force 1863 (Qld) 27 Vic No. 11

380 An Act to Consolidate and Amend the Laws relating to the Supreme Court 1867 (Qld) 31 Vic No. 23

An Act to consolidate and amend the Statute Law of Queensland relating to Larceny and other similar offences 1865 (Qld) 20 Vic No. 6

Goldfields Amendment Act 1877 (Qld) 41 Vic No. 12

Goldfields Amendment Act 1878 (Qld) 42 Vic No. 2

Justices Act 1850 (NSW) 14 Vic. No. 43

Supreme Court Act 1867 (Qld) 31 Vic No. 23

United Kingdom

Act for the Registration, Incorporation and Regulation of Joint Stock Companies 1844 (UK) 7 & 8 Vic c. 110

An Act to prevent Disputes and Controversies concerning Royal Mines 1688 1 Will & Mar. c. 30

Australian Courts Act 1828 (UK) 9 Geo. IV c. 83

Companies Act 1862 (UK) 25 & 26 Vic c. 89

Limited Liability Act 1855 (UK) 18 & 19 Vic c. 133

New South Wales Act 1787 (UK) 27 Geo. III c. 2

New South Wales Act 1823 (UK) 4 Geo. IV c. 96

Royal Exchange and London Assurance Corporation Act 1719 (UK) 6 Geo. I c. 18

Reported cases

Van Ness v Pacard 27 US (2 pet.) 137, 143-44 (1829)

Beaumont v. Barrett (1836) 1 Moo PC 59

Blankard v Galdy (1693) Holt KB 341

Brown v Mannix (1828), Decisions of the Superior Courts of New South Wales, 1788-1899, [accessed 2 November 2009]

Campbell v. Hall (1774) Lofft 655

Case of Mines (1567) 1 Plowd 310

Clarkson and Vanderslice v Julian Hanks 4 Cal 47

Cohas v Raisin and Legris 3 Cal 443

Commonwealth v Chapman 54 Mass, (13 Met.) 69 (1847)

De Grasse B, Fowler v Peter Smith and Mary A. Smith 2 Cal. 39 (1852)

De Grasse B, Fowler v Peter Smith and Mary A. Smith 2 Cal. 568 (1852)

Eddy v Simpson 3 Cal. 249 (1853)

Harman v Harman 1 Cal 215 (1851)

Hoen v Simmons 1 Cal 119 (1851)

In re Southern Rhodesia (1919) AC 211

381 Irwin v Phillips 4 Cal. 140 (1855)

James Lick v Hugh O’Donnell 3 Cal 59 (1853)

Jennison v Kirk 98 US (8 Otto) 453, 458 (1878)

Mabo v Queensland (No 2) [1992] HCA 23

Macondray v Simmons et al 1 Cal 393 (1851)

Murchie v The Big Kart Track Pty Ltd [2002] QSC 52

Panand v Jones 1 Cal 488 (1851)

Pascal Surocco et al. v John W. Geary 3 Cal 69 (1853)

People v Hall 4 Cal. 399 (1854)

Pring v Marina 5 NSW (L.) 390 (1866)

R v McDonnell ex parte Attorney General; R v Armonstrong ex parte Attorney General [1988] 2 Qd R 189

Re Feez Ruthning’s Bill of Costs [1991] 1 Qd R 558

Shoemaker v United States 147 US 282 at 306 (1892)

Stowell v Simmons et al 1 Cal 452 (1851)

Suñol et al v Hepburn et al 1 Cal 254 (1851)

The People ex rel. Isaac N. Thorne et al. v John C. Hayes, the City of San Francisco and P A Morse, D J Tallant, William Hooper, B C Saunders 4 Cal 127 (1854)

Tohler v Folsom et al 1 Cal 207 (1851)

United States v Gear 44 U.S. 120 (1845)

United States v Gratiot 39 U.S. 526 (1840)

United States v Sweet 245 U.S. 563 (1918)

Walsh v Kent Queensland Supreme Court Reports 1 (1862) 44

Woodworth v Fulton 1 Cal 295 (1851)

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