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The Call of Gold (1936) by Newell D. Chamberlain


In January 1858, Associate Justice Peter J. Burnett, of the Supreme Court delivered an opinion in favor of the Merced Mining Co. and against Biddle Boggs and John C. Fremont. Chief Justice David S. Terry concurred and Associate Justice Stephen J. Fields dissented.

The opinion expressed, in this decision, is noteworthy, because it was rendered not on an interpretation of existing law but on an assumption of what the law should be. The Court said: “The defendant is occupying the premises simply and solely for mining purposes, under the general license of the Federal Government. It is true that there has been no express Act of Congress creating this license, but such seems to be its will.”

A rehearing was granted and it was not until October, 1859, that the final decision was given and it was a reversal of the foregoing.

Meanwhile, encouraged by this decision in favor of the Merced Mining Company, claim jumpers became bolder. The Merced Mining Company’s men endeavored with armed forces to capture the Pine Tree mine, being worked by Fremont and which he had endeavored to protect by a stone fort, on the side of the mountain, above the mine, with walls three to four feet thick and six feet in height. The seriousness of the situation is evidenced by the following articles appearing in the Mariposa Gazette.

“July 14, 1858. On Friday morning at an early hour, a band of fifty or sixty men attempted the capture of the Pine Tree vein, in Bear Valley, opened and being worked by Colonel Fremont. The men were all armed and led by Shaw, Boling, Crenshaw and others. Having been successful in ‘jumping’, as the act is technically called, one or two other veins before, that were worked by Fremont, by night surprises, it was thought it would be successful, in this instance, but a sufficient number of men were on guard in the drift and the capture was not effected. The Merced Co.’s men, however, were in sufficient force to prevent all ingress to the drift and Fremont’s men arrived in sufficient force to prevent any attack. Thus matters stood during Friday, both parties prepared for instant slaughter. Fremont’s men, though outnumbered more than two to one, were prepared to die, sooner than yield a hair.

“The Sheriff arrived on the ground during the day and read the riot act and commanded them to disperse, which they refused to do. Warrants were obtained for their arrest. Boling, Anderson and Powell yielded themselves prisoners and were taken to Mariposa but the mass of men under Crenshaw refused to yield and still kept up their attitude of determination to get possession of the vein.

“Sober and considerate men view this movement as unjustifiable and desperate in the last degree. The Merced Company have been in undisputed possession of the Josephine and Black Drift, since they surprised and took them, while Fremont’s men have as quietly and peaceably been working the Pine Tree Vein.

“It is the duty of every good citizen to join in putting down any such high-handed outrage upon the rights of property and the majesty of the law. That the Merced Company’s men are not in arms to defend their own rights is evident from the fact no obstacles have been put in the way of their own mining, but they seem determined to wring by force of arms those terms the law refuses them.

“How Captain Boling reconciles his present position with his former attitude and efforts to raise a force to put down vigilance committees in San Francisco, I am at a loss to know. It would be advisable for all those men, now in arms against the authority of the law, to go home. In any event, they gain nothing. They are brave men, no one doubts. Their country may soon need their services in a more glorious cause. Perhaps, at this moment, while they stand with guns presented to each other’s breast, their

The pioneer Schlageter Hotel. Trimming its famous flagpole in 1859
[click to enlarge]
The pioneer Schlageter Hotel. Trimming its famous
flagpole in 1859.

countrymen in the East are bearing theirs to resist British agression.”

L. A. Holmes, editor, speaking in the same issue, “The difficulties and belligerent attitude for a long time existing between the Merced Mining Company and Colonel Fremont and his Bear Valley agents, relative to certain quartz interests, seems about to terminate. Without entering into a history of these difficulties at present, we would say that since the disturbances and hostile demonstration of last year, peace and quiet has in a great measure reigned, each party working such portions of the Pine Tree and Josephine veins as they are in possession of. This condition of affairs continued until last Friday, when commenced the preliminaries to a most bloody, fratricidal and inhuman encounter ever known in this State, if peradventure, common respect for law and common sense do not soon gain the ascendent and interpose a barrier between the embittered parties.

“The principal facts are corroborated by the officers, who in the performance of their duty have been resisted. On Monday, matters remained as before, each party receiving reinforcements. Warrants for thirty-nine persons attached to the Merced Mining Company were issued by Justice Washburn, four of whom only appeared to answer to the charges preferred. The endeavors of the officers were ineffectual. Sheriff Crippen returned to Mariposa and yesterday was, with deputies, engaged in summoning a posse with which he will today endeavor to maintain the law in this law and order County. The law is ample to adjudicate and settle all differences between the contending parties and it should have its sway.

“We have scrupulously avoided defending or advocating one party or the other. But we do say that the present condition of affairs in Bear Valley is disgraceful. The lives of some of the best men in the County are imminently endangered. On whose skirts will be found the blood of the victims, should an encounter occur? The public cannot be too soon in placing the seal of condemnation upon all such proceedings.”

“July 13th, 1858. A committee claiming to exist to effect an amicable settlement has asked Colonel Fremont to withdraw his armed force from the Pine Tree mine and close it up until a decision shall be rendered in the Biddle Boggs case.

“Colonel Fremont replies as follows: ‘I have not heard of any public meeting as set forth in your letter and am satisfied that it does not express the feelings or wishes of the community, which has not made itself a party to the legal contest between the Merced Mining Company and myself.

“ ‘I am therefore constrained to say that I cannot recognize you as a committee to represent the citizens of Mariposa County.

“ ‘In regard to your proposition that I shall close up the mines and abandon the property, I have to say in reply that the land in question is within a grant held by me under patent of the United States. I am not aware that it now is, or ever was, claimed by the Merced Mining Company. I came peaceably into possession of it and have for a long time been peaceably engaged in working the mines upon it.

“ ‘I was so peaceably occupied in carrying on the works at the place on Friday morning last, when we were set upon by a force, which you acknowledge to have been employed by the Merced Mining Company in utter violation and contempt of law and the peace of this County, and I am still in possession of it, notwithstanding that it is besieged by their armed force.

“ ‘I hold the property by law, by long occupation and even by mining regulation. The demand you make upon me is contrary to all my sense of justice and what is due my own honor. You say you wish to avert bloodshed. If it comes, the citizens of this County need no assurance from me that it will not be of my provoking.

“ ‘Outrageous and beyond precedent as the attack is, I will confine myself to the right of self-defense, which the law gives to citizens who have their lives and property attacked’.”

Next: 20. Bear ValleyContentsPrevious: 18. Judge Burke’s Decision

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