SOME ACCOUNT OF THE WOUK Ol' STEPHEN J. FIELD LEGISLATOR, STATE JUDCiE, AND JUSTICE OF THE SUPREME COURT OF THE UNITED STATES. ^ ^ ' ( U WITH AN INTRODrCTOKY SKETCH BY J. MORI ON POX^IEROY, I.I.. D. 1881. AND AN APPENDIX CONTAINING His remarks on the Life aud Character of Chief Justice Chase ; his address at the Centeunial Celebration of the organization of the Federal Judiciary, February 4, 1890 ; the memorial from Senators from California, Nevada, Oregon, and Idaho, and from the judges and members of the bar of California, and from the Federal judges in that State, requesting him not to change his circuit : and the story of his attempted assassination by a former associate on the Supreme Bench of California. By Hon. GEORGE C. GORHAM. 1895. Copyright, 1882, by S. B. Smith. 9 INDEX. iNTRonucTORY Sketch by Prof. Pomeuoy : Pagks. 1. Early life of Judge Field 6-i:5 2. His work as a Legislator 13-'22 ;{. His work as a member of the California Supreme Court 22-4;". 4. His work as a member of the U. S. Supreme Court 4o-(il Note by the Editors "-J Judge Field as a Legislator •'> a. Legislation for the protection of miners in their mining claims '^8 h. Legislation for the exemption from forced sale of tools and other personal property of debtors S-ll v. General Legislation secured by him 11-14 Judge Field as a member of the Supreme Court of Cali- fornia : 1. His election l-'i 2. Estimate of his judicial career on that bench by Judge Baldwin lf> U' ?,. Unsettled condition of land titles in the State from three causes : a. Extent and indefinite boundaries of Mexican grants.. 20 24 h. Occupation of the public lands by settlers in ad- vance of legislation by Congress 24-2."> c. Claim of the State to own the minerals in the soil.. 26-2!) 4. His opinions on : a. Patents for lands by the United States :><> ft. Municipal corporations •''^' c. Mortgages and other subjects •»•> d. A Sunday law 34-:JT e. The non-receivability of Legal-Tender notes for taxes.. ;?8 JviHilC P'IKM) AS A MKMBIiR ()F Tin: SLJ'RICMt; COUKT OF THE U N IT E I ) St A T ES : Packs. 1. His appointment 39 2. His opinions on — 1. The Milligan case 4il-42 2. The Cummings case 42-45 3. The Garland case 45-40 4. TheMcArdle case 46-50 5. The Confiscation eases 50-59 6. Cases on Pardon and Amnesty 59 ()5 7. Legal-Tender cases and Confederate notes (i5 s(j 8. The legislative power of the Insurgent States duiing the civil war, and the extent to which the Confed- erate Governlixent could be regarded as a de facto government 87-96 9. Protection from military arrest and imprisonment, (hiring the war, of citizens not in the military ser- vice of tlie United States, where the Civil Courts were open 90-105 10. Protection to officers and soldiers of the United States army in the enemy's country daring the war 105 . (1. Coleman vs. Tennessee lOC-112 h. Dow vs. Johnson 112-119 11. Protection of sealed matters in the mails from in- spection of officials of the Post Office 119-124 12. The Fourteenth Amendment and the Slanghter- House cases 124-156 13. The power of the State to control the compensation receivable for the use of private property and ser- vices in connection with it. The Chicago Ware- house cases 156-173 14. The relation between the General Government and the State Governments : a. The Virginia Jury cases 173-201 b. The Election cases from Ohio and Maryland... 201-216 15. Corporations — cases relating to their powers and liabilities : a. Paul vs. Virginia 216-219 h. Marsh vs. Fulton County 219-221 e. Tomlinson vs. Jessup 220 d. The Delaware Railroad Tax Case... 221-222 e. Board of Commissioners of Tippecanoe County vs. Lucas, Treasurer 222 /. Iiruii.ulitoii va. IViisiicula 222 22:5 (J. U. S. vs. New Orleans 223-224 • h. Pensacola Tel. Co. vs. Western Union Tel. Co... 225-2:« /. Union racific K. Co. vs. Ignited Stales 2:3:5-255 1(). Other cases in the Supreme Conrt 25(5-258 17. Inter-state eoninieree 259 a. Welton vs. ]\[issouri 2(50-264 /;. Sherlock vs. Ailing 2(54-268 c County of .Mobile vs. Kimball 268-27:5 18. Tiie ])Ower of taxation by the Oeneral and State Governments: State ta.NL on Ibreigu-'held bonds 27:5-283 19. The trust character of directors of corporations : Warden vs. Union Pacific R. Co 283-288 20. The use of running waters on the public lands 288 n. Atchison vs. Peterson 289-294 h. Basey vs. Gallagher 294-295 Casks in the Circuit Court of thi: UNiTcn States: 1. U. S. vs. Greathouse 296-305 2. U.S. vs. Knovvles 305-:509 3. U. S. vs. Smiley :509-313 4. ^A'-partc Cavanaug'h on habeas corpus 314 5. Hardy vs. Harbin 315 6. Hall vs. Unger 321-:528 7. Montgomery vs. Beavans.. , 328-335 8. United States vs. Flint, Throckmorton, and Carpeutier... 335-349 9. The Eureka case 350-360 10. The municipal lands of San Francisco. The Pueblo case... 360-:}76 11. The legislation of California, State and municipal, against tl»e Chinese ;57G-;584 a. The case of Ah Fong on habeas corpus 384-:594 h. Ah Kow vs. Nunan 398-405 12. Other cases in the Circuit Court 409-410 The Ei.ectoral Commission of 1877: 1. The Florida case 415-430 2. The Louisiana case 430-4:52 :5. The Oregon case 432-439 4. The South Carolina case. 439-440 5. General disappointment of the country at the action of the Commission, from the Public Ledf/er of Philadel- phia 440-442 APPEiMDIX. Opinions ol" the Supreme Court in the Test-Oath cases, de- livered by Judge Field : rA(;Es. 1. In the Cummings case 445 '2. In the Garland case 4.")? Remarks of Judge Field ou the life and character of Chief Justice Chase , 465 Introductory address of Chief Justice Fuller at the Cen- tennial Celebration of the organization of the Federal Judiciary 475 Address of Justice Field on the same occasion 477 The speech of Justice Harlan made at the banquet in the evening 501 Memorial from Senators from California, Oregon, Nevada, iind Idaho, and from the judges and members of the bar of California and the Federal judges in that State, requesting Justice Field not to change his circuit 509 The story of his attempted assassination by a former asso- ciate on the Supreme Bench of California A. CONOLUSION B INTRODUCTORY SKETCH. I purpose to analyze and descrilje the work and it^ re- sults of one wlio, to an extraordinaiy degree, has Impressed his own conceptions upon the jurisprudence of the coun- try — as much so, perhaps, as any living jurist of America. To those who are informed as to the extent and variety of his official labors, this will not appear an extravagant opinion; and its correctness will l)e demonstrated l)y the facts which I shall produce. Tlie subject of this memoir belongs to a remarkable family — a family which well illustrates the effects of American civ'lization and institutions working upon the best J^ew England character. Commencing their careers with no advantages except the earl}- training of God- fearing parents, and the education afforded by the coun- try academy and college, the living members of the family, consisting of the brothers David Dudlej^ Field, Cyrus West Field, Stephen Johnson Field, and Henry Martyn Field, have all risen to distinction. Of the first two named brothers the reputation is world-wide; in fact, David Dudley Field and Cyrus W. Field are even Ijetter known and more honored throughout Europe than in their own country. If the fourth brother has attained to a less extensive fame, it is because as a clergyman he has confined his activities to an American church, within wiiich be has a high position and has long wielded a powerful influence as the editor of one of the leading religious papei's of the country. Of David Dudley Field and Cyrus W. Field it is unnecessary to speak. The former, hy his reforniing measures in the systems of procedure in the courts, has rev- okitionized the modes of administering justice, and placed them upon a foundation of simplicity and truth in all those nations and regions of the world where the English common law has been adopted. The latter, by his far-seeing sagacity, untiring energy, and deep enthusiasm, has been the leader in accomplishing that triumph of science and conmierce combined by which all parts of the world are united, time and space are annihilated, nations are made one, and the vast world-wide movements and transactions of business, trade, and commerce are controlled. The work of tlie third brother, who is tlie subject of this sketch, lias been restricted to the legislation and jurisprudence of his own country, but in some respects it is equal in importance and variety to that accomplished by either of his brothei-s. Stephen Johnson Field was born in Haddam, Connecti- cut, on the 4th of November, 1816. His grandfathers on both his paternal and maternal sides served as officers in the Revolutionary War, and were descended from a I'uri- tan stock, their ancestors being among the earliest settlers of New England. In 1819, when he was about three years old, his father, who was a Congregational clergyman, removed to Stockbridge, Massachusetts, and Stephen's childhood and early youth were there passed in what has l)ecome one of the most famous and classic spots of New England. At the age of thirteen, a step was taken by him which undoubtedly produced a deep and lasting im- pression upon his intellectual and moral character, al- though its effects upon his external life were temporary and trifling. In 1829 an -elder sister married the Rev. Jo- siah Brewer. Mr. and Mrs. Brewer, acting under the auspices of The Ladies' Greek Association in New Haven, 80011 afterwards sailed for the Levant, with the intention of establishing schools in Greece lor the ciliicMllon of fr- niales. They invited Ste]>hen to accoin[)any them. His l)rother, David Dudlcv, who as (lie eldest of the family took a deep and active interest in promoting the wcllarc of the younger members, advised his going for the [lur- pose of stnd^'ing the Orit'iital languages, thinking that he coidd thereby (piality himself for a professorship of Oriental languages and literature in an American Uni- versity. With this design he accompanied his sister and brother-in-law. They sailed ])ecend:»er lOtii, 1829, and arrived at Smyrna, February 5, 1830. Mr. Brewer there changed his original plan and established a school at vSmyrna. Stephen remained in the Levant two and a half years. In addition to the time spent in Smyrna he visited many of the islands of the Grecian Archipelago, and fa- mous cities of Asia Minor, and passed one winter in Athens in the family of the Rev. John Hill, the well- known American missionary of the Episcopal Ghurch. Mr. and Mrs. Hill had been on a visit to Smyrna, and Mr. Hill being detained by some matters of business, Mrs. Hill I'eturned to Athens without him. Stephen acconipained her as her escort and remained at Athens until Mr. Hill's return. During this residence in the East, Stephen learned the modern Greek so that he was al)le to write and to speak it with ease, and acquired some knowledge of the Erench, Italian, and Turkish. But the most important and lasting result of the time thus spent in the East during the plastic period of his youth, was a moral one; and the lesson which he there learned was that of religious tol- eration. He had been 1)rought up as a boy in the strict- est tenets of Calvinism. As he says of himself, '"he had been taught to believe that the Xew England Puritans possessed about all the good there was in the religious world," and to look with distrust upon all the great his- torical churches wdiich they, with one sweeping condem- nation, called Nominal Christians. During his Eastern life he was thrown into close contact with lioman Catholics. B 10 members of the Greek Church, and Armenians, as well as with Mahometans ; he saw examples of faith, devotion, piety, and virtue among them all, and was profoundly impressed by them. Indeed, his views undei'went an en- tire revolution; and thei-e was laid the foundation of that broad tolerance which has ever since been a distinguish- ing element of his character.* He returned to the United States during the winter of 1832-3; entered Wilhams College in the fall of 1833, and was graduated in 1837, having obtained the highest honors of his class — the Greek oration at the Junior Exhibition, and the valedictory oration at the Commencement. He entered upon the study of the law during the Spring of 1838, in the office of his brother, David Dudley, in Xew York City, and was admitted to the Bar in 1841. A portion of this interval he spent in Albany, giving instruction to classes of the Albany Female Academy, and pursuing his * Stephen was in Smyrna when the clreaded plague visited the city in the spring of 1831. Every one tlien avoided his neighbor as if contagion would follow the slight- est touch. Says a writer describing the scenes : " If two men met in the street, each drew away from the other, as if contact were death. Sometimes they hugged the walls of the liouses, with eanes in their hands ready to strike down any one who should approach. All papers and letters coming through the mails were smoked and dipped in vinegar before they were delivered, lest they might commu- nicate infection. Even vegetables were passed through water before they were taken from the hands of the seller. Terrible tales were told of scenes when guests were carried away dead from the table, and servants dropped down while waiting upon it. On every countenance was depicted an expression of terror." Mr. Brewer remained in the city for two or three weeks, and then left with his family in a In the Fall of the same year Smyrna was vi-sited with the Asiatic cholera. Hun- dreds died every day from its attacks, and thousands left the city and camped in the fields. Mr. Brewer gave his time to administering to the sick and dying. With his pockets filled with medicines he went through the lanes and alleys of the city on his errand of mercy. Stephen, with his pockets filled in the same way, accompa- nied him in all his rounds. Commodore J. E. DeKay, in a work entitled " Turkey in '31 and '32," thus speaks of the heroic devotion of :Mr. Brewer in those terrible scenes, as follows: " The efforts of the physicians at Smyrna during the fearful season of cholera, were nobly seconded by many of the foreign missionaries. Among these I heard the labors of Mr. Brewer everywhere spoken of in terms of admiration. Furnished with all the requisite remedies, he scoured every lane and alley, proclaiming his benevolent intentions, and distributing even food to the needy. Let history, when it repeats the story of the good Bishop of Marseilles — who, after all, was merely a soldier at his post — also record the benevolence and the proud contempt of danger and of death eyliiced by an A'TiBrioan stranger within the pestilential walls of Smyrna." 11 St in lies ill tlio olWvc olMolui \':iii IJiirciK tlu-ii llic Attonicv - (Jeiicral of tlic State, and at tlu' suiiimit of his l.riHiaiil Imt (lisap[ii'intiiii;- earee.i-. On Iieinu- admitltMl to tiu' Bar, lie was taken into [)artnei's|iii) \)\ his hrotlier in Xew York City, whieh eoiitinued tintil the yeai- 184.S. On the breaking out of the Mexiean war, and aii-ain at its close, his brothel' advised him to reiiio\c to Caliiornia, making generous oti'ers of pecimiarv means for iii\-est- ment in the purchase of land, hut Ste[theii had a strong desire to visit Europe, and declined the proposal, lie sailed for Europe in June, 1848, with the design of making an extensive tour. Wliile in Paris, the following winter, lie read the annual message of President Polk to Coiigress, which officially announced the discovery of gold in Cali- fornia. He then felt some regrets that lie had not acted upon tlie advice of his brother, but nevertheless concluded to visit the most interesting parts of Europe before return- ing. He did so, and returned to Xew York in the P^dl of 1849, arriving on the 1st of October. Soon afterwards he left for California. As I do not intend to write a life t)f Judge P'ield,! shall not attempt to describe the incidents and adventures of liis Cahfornia career. It will be sufficient to mention the most important events, so as to exhibit the more clearly his public and official labors, and to fix the date of the successive steps which he took until he reached his present high position as a memlier of the Supreme Court of the United States. He arrived in San Francisco on the 28th of Decem- ber, 1849, with hardly any funds, and with no resources except untiring energy and capacity for work, great in- tellectual ability, natural and cultivated, the well-laid foundation of legal learning, and the high hopes of open- ing manhood. In Jannary, 1850, he removed to a settle- ment just commenced which became the important inland city of Marysville. Here he established himself, and the place continued to be his home during the whole of his 12 professional life in California, until 1857. He was at once elected the first alcalde of the new town, and held the office until the organization of the State government, and the introduction of American institutions. In the Fall of 1850, he was elected a memher of the Assembly, the pop- ular branch of the State Legislature, from the county in which Marysville was situated. This Legislature com- menced its session on the first Monday of January, 1851, and he was confessedly the leading and most efficient mem- ber of the body; many of its most important and perma- nent acts were planned, proposed, and adopted through his agency. At the expiration of the session he returned to Marysville, resumed the practice of his profession, and soon attained the recognized position of one of the fore- most lawyers in the State, and so continued until, in the Fall of 1857, he was elected a Justice of the State Supreme Court for the term of six years, commencing on the first of January, 1858. At this election 93,228 votes in all were cast; of these he had 55,216, one of his competi- tors, 18,944, and the other, 19,068, so that he received a majority of more than 36,000 over each of the other candidates, and of 17,204 over both combined. A va- cancy occurring on the Bench through the death of one of the justices, he was appointed by the Governor for the unexpired term, and took his seat on the 13th of Octo- ber, 1857. On the resignation of Chief Justice Terry, in September, 1859, he became Chief pjustice. He remained HI this high office until, in 1863, he was removed to the still higher position— a seat in the Supreme Court of the United States. On March 3d, 1863, a statute of Congress was approved by the President providing for an additional justice of the Supreme Court, and making the States on the Pacific Coast a new circuit. On the recommendation of the entire delegation in Congress from those States, con-biVjIaNg of four Senators and four Representatives,^of whont/nve were Democrats and three Republicans, and all Union men, — Judge Field was nominated by President 18 Lincoln, iiinl his iiominatiou was iinaiiiuioiislv . Miiliinicd l.v tlie Senate. He resiu-iu>(l the State Ju(l^-eslii|., and tenk ihr oatli of office as ju«li>;e of tlie United States SnprcMir C.piiit on the20tljof Mjiy,1863. Jlisconunission was issued Mar. h 10th, but lie gave the following explanation ol' his sch'r- tion of May 20th, for entering upon tlic (hitics nf t)i,. ,,|"- tice. it was necessary that he should postiMuic his ictii-c- nient from the State Bench for a while, in order that the ('ourt might decide the causes which had ahva.ly heen argued and submitted for decision, so that the parties ne.'d not be put to the delay and expense of re-arguments. He chose the 20th of May because he believed the causes argued would be by that time decided, and because it was the birthday of his father; he thought that his father would be gratified to learn that on the 82d anniversary of his own birth, liis son had become a Justice of the Suj)renie Court of the United States. Having thus mentioned the most important events of Judge Field's life, I shall analyze and describe his work (1) as a Legislator in the early days of California; (2) as a Judge of the California Supreme Court; and (o) as a Justice of the Supreme Court <»f the United States. l.^Jndf/r FirbPs irorl: >is a Ln/ish/tnr. In order to appreciate the extent and ini[)ortance of dudge Field's legislative work during his single term of otlice,and the lasting effect which it has produced not only upon California, but upon otiierand especially the mining States, the anomalous condition of the State at that early day must be fully understood. 1 siiall make no attempt to describe the mere social features of California during the years succeeding the discovery of gold; they have been often portrayed by masters in the art of word-painting. F shall refer to the condition of tlie State so far t ' as relates to the law, and the special property interests v. hicli then existed, 14 The discovery of gold, as is well known, bi-ouglit a I'usli of emigrants from all parts of the United States, from European counti'ies, from Australia, and even from the Pacific Islands and China. In addition to this heteroge- neous mixture of all nationalities was the element of native Mexican or Californian population. Among these earl\' comers, some were men of high character, intelli- gence, and culture, well fitted to 'oe leaders in the com- munity. A larger number were of less education and culture, hut still were full of energy, and, coming from the United States, were inclined to be law-abiding, possessing at least some of the American feeling of respect for the law and love of justice. A third, and it must be confessed, a large class, consisted of the worst characters of the older communities, rogues, knaves, gamblers, and professional criminals, acknowledging no law, and defying all law. The law itself of the country was unsettled. The civil law, as formulated in Spaidsh codes and applied to Spanish colonies, modified in few particulars by Mexican legislation, prevailed prior to the cession of California to the United States. Large tracts of land were held by grantees under concessions from Spain or Mexico; and the law in force contained provisions unlike any doctrines of the common law, concerning the organization of " pueblos" or towns, which were the basis of proprietary and munici- pal rights of enormous value; and it prescribed regulations for mining, and for the occupation of mineral land different froin the common-law rules applicable to the same sub- jects. The stream of immigrants which poured into the State brought along witli them their own customs, opinions, and preferences. At home they had been familiar with a great variety of laws, and they naturally preferred to follow those legal rules to which they had been accustomed. The East- ern States had mostly been settled by a homogeneous pop- ulation, all familiar with the common law, and they adopted it without a question, The same was true with respect to 1.-) the States of the Ohio and Mississippi Valleys. But sueli was not the case with Caliiornia; no such lioniogeneity ex- isted among its poojilo. And it was perceived hy intelli- gent and thoughtful men, that the common hiw of Enghuid, adopted by the tirst Legislature as a I'ule of decision in the courts, when not repugnant to the constitution and laws of the State, did not meet the exigencies and conditions of the country. Many of its most characteristic and funda- mental principles and doctrines were unfitted for the new commonwealth, partly tVom the anomalous condition of society, partly- from the etfect of the pre-existing system of Spanish-Mexico, and partly from a great variety of most important proprietary interests, which had not existed in countries wliere tlie common hiw prevailed, or had ex- isted under conditions essentially ditl'ei'ent from those pre- sented by California. The proprietary rights to which I refer, and w hich at that time surpassed in value all others within the State, were those growing out of the mining industries, the claims of miners to occupy portions of the public mineral land, and to extract the mineral, the works constructed by them to aid in opening and developing the mines, and the ap- propriation of water in the mining region for that and other lieneticial purposes. Xo legislation, either State or national, had yet been enacted concerning these subjects. And the intricate and restrictive system of the Spanish- Mexican codes was as inapplicable as the doctrines of the common law. The seekers for gold, who had been drawn from all parts of the earth, were thus left to adjust their respective rights and claims as best they might. The mineral lands, as a whole, belonged to the United States, as a part of the public domain ; but dilferent opin- ions prevailed with respect to the ownership of the min- erals themselves while still remaining in the soil. Some persons maintained that they belonged to the United States, others that thev were owned by the State, but the conviction was anivorsal that neither tlie national nor the State government should assert any right of ownership, and that its assertion would greatly impair the develop- ment ot" the mineral wealth of the country. The immi- grants had poured over the mineral regions, settled down in every direction, appropriated parcels of the territory to their own use, and were prospecting and mining in every mode rendered possihle by their own resources, under no municipal law, and with no restraint except the danger of conflict with other and more powerful parties who could wield a gi'eater physical force. As justly observed b}" one who, at the time, was observant of the conduct of the miners, " the situation was a grave one, and it demanded statesmanlike treatment. To do nothing was to leave the peace of the State at the mercy of those whose fierce thirst for gold might outrun their respect for fair dealing. Honest misunderstandings as to facts were oftenest settled by immediate appeal to brute force. The woi-ld has prob- ably never seen a similar spectacle — that of extensive gold-fields suddenly peopled by masses of men from all States and countries, restrained by no law, and not agreed as to whence the laws ought to emanate by which they would consent to be bound." In this condition of the country the miners had taken some most important steps, which illustrate in the clearest manner the love of order and justice, and respect for law which characterize American-born citizens of all classes, and which prevented the destructive consequences, that otherwise would have resulted from the absence of any municipal law. They were scattered over the territory in larger or smaller groups, located at different places, technically known as " camps," " bars," or " diggings." In each mining district they had held meetings and had enacted rules and regulations by which they agreed to be governed in that district. These rules were simple, but related to the most important questions of property, to 17 priority in claims, and the extent of gronticl wliii'li otic person could appropriate. The rules once adopted wei-e enforced with rii;-(»r uiion all settlers in the parlicuhir cani[). This vohmtary, self-imposed lei^Mslation ()rii;iiiate(l with the American immigrants, and they were ordinarily so su[»orior in numhcrs that they could com[)el oljedience hy the less law-ahiding foreignei's. The rules they ado^jted governed the extent of each individual claim at the partic- ular locality, and prescrihed the acts necessary to constitute such an appropriation of a parcel of mineral land oi- por- tion of a stream as should give the claimant a jirior right against all others,, the amount of work which should entitle him to continued possession and enjoyment, what sliould constitute an ahandonment, and like fundamental condi- tions to the acquisition and use of their respective claims. These rules differed in their details in the various camps, hut there was still a general similarity among them all. In this condition the Legislature of 1851 was called upon to act. Mr, Field, as the result of accurate knowdedge and careful study, determined upon a legislative policy. He understood the material upon which any legislation must work; he was familiar with the miners as a class, and knew their habits and peculiarities, their common sense and gen- eral love for fair play, coupled with strong will and occa- siomil violence. He saw at a glance that the Legislature could not enact any compli(!ated system of mining law that would not interfere with the regulations wdiich they them- selves had estahlished, and under which their claims were protected. The plan which he finally concluded to pro- pose,- and, if possible, procure to be adopted, was simple, and its very simplicity may, at first blush, tend to ob- scure its wisdom ; but all possible doubts in that respect have long since been settled by its complete success. The root idea of this plan was that the rules voluntai'ily im- posed upon themselves by the miners should receive the sanction of the law, and as laws should b^ enforced by the courts in adjudicating upon mining rights and claims. 18 He, therefore, drew up and ottered to the Legislature the foUowhig provision, which, through his advocacy, was adopterl and incorporated into a general statute regulating proceedings in civil cases in the courts of the State : " In actions respecting mining claims, proof shall he admitted of the customs, usages, or regulations estahlished and in force at the bar or diggings embracing said claim-!, and such customs, usages, or regulations, when not in con- flict with the constitution and laws of this State, shall gov- evn the decision of the action." The far-sighted sagacity, expediency, and wisdom of this provision have been cn the social events themselves which I have Iteen deserihing — events nnexani|iled, I think, in the history of any other peoi.le, 'Fhe whole cnn- (hict of the ndners, their voluntary adoi^tion, in the ah- sence of all municipal law, of regulations so Just, wise, and equitahle that neither the State nor the national go.vern- meiit has attem[)ted to improve them, exhihits in the most striking manner those (pialities which lie at the has[s of the American character. ISt) long as these qualities last, so long as American citizens, individually or collected into communities, possess and act upon these conservative tendencies, the liherti'es, safety, and perpetuity of the nation rest upon a certain and immovable foundation. In addition to the provision concerning mining claims, Mr. Field was also the author of many other measures of the greatest importance to the State, which was then just com- mencing its wonderful course of development. As most of these enactments relate to the internal atfairs of California, and have been contined in their operation to that common- wealth, I shall merely enumerate them, with such brief descri[»tion as will serve to indicate their purpose and character. Being a member of the Judiciary Committee, Mr. Field's work naturally related, in the main, to the ad- ministration of justice. Among the most important of these measures, planned and drawn up by him, was a bill concerning the Judiciary of the State. This act was gen- eral, deaUng with the whole judicial system, and requiring great labor in its preparation. It completely reorganized the judiciary, and defined and allotted the jurisdiction, power, and duties of all the grades of courts and judicial oiiicers. An act passed in the subsequent session of 1858, revising and amending in its details the original statute of 1851, was also drawn up by Mr. Field, although he was not then a mend)er of the Legislature. The system then 20 planned and established in 1851, and im[)roved in 1853, and again in 1862, to conform to the constitutional amend- ments of the previous year, was substantially adopted in the codes of 1872, and continued in operation until it was displaced by the revolutionary changes made in the new constitution of 1879-80. In connection with this legisla- tion atfecting the judiciary, Mr. Field also drafted and procured the passage of an act concerning county sherifis, defining all their official functions and duties; an act con- cerniug county recorders, creating the entire sj-stem of registry which has since remained substantially unaltered; and an act concerning attorneys and counsellors at law, by which their duties were declared and their rights were pro- tected against arbitrary proceedings by hostile judges. He also prepared and introduced two separate bills to regulate tlie civil and criminal practice. These acts were based upon the Code of Civil Procedure, and the Code of Criminal Procedure proposed by the New York commis- sionei's,but they contained a great number of changes and additions made necessary by the provisions of the Cali- fornia constitution, and by the peculiar social condition and habits of the people. They were by no means bare copies taken from the New York Codes, since Mr, Field altered and reconstructed more than three hundred sections and added over one hundred new sections. The two measures were gerierally designated as the Civil and the Criminal Practice Acts. They were subsequently adopted by the other States and Territories west of the Rocky Mountains. They continued with occasional amendments in force in California until the present system of more elaborate codes was substituted for them in 1872; and even this change was more in name than in substance, since all tiieir pro- visions substantially reappear in some one of these codes. In the Civil Practice Act he incorporated the provision above mentioned respecting mining claims. He also in- corporated into it another provision, which has become a permanent featm-e of the legislative policy of California, 21 and has proved of inestimable benefit to its population — the provision exemptins: certain articles of property of judgment debtors iVoni seizure and sale u[>()n execution. Some exemption has long been found in the statute- books of every State, but it lias ordinai'ily ix'eii small in amount and value, restricted to householders, and extend- ing only to a few articles of absolute necessity for the ex- istence of a family— such as a little kitchen and bed-room furniture, bedding, clotbing, and a few other similar ar- ticles. Mr. Field justly thought that the scheme qf ex- emption sliould, especially in a new State, be planned after another policy, — a policy of generosity as well as of strict justice, believing that even the strictest justice and the claims of creditors would be better subserved thereby. The fundamental principle of the plan proposed by him was, that every person, in addition to those articles neces- sary for individual preservation, such as clothing, reason- able household furniture and effects, and the like, should be secured in the possession and use of those things by which, as necessary means and instruments, he pursues his profession, trade, business, or calling, whatever it may be, and acquires the ability of paying the demands of his cred- itors. This law, therefore, exempts, not only household fur- niture and the hke, but the implements, wagons, and teams of a farmer, the tools of a mechanic, the instruments of a surveyor, surgeon, and dentist, the professional library of a lawyer and a physician, the articles used by the miner, the laborer, etc. In this connection it should also be stated, that, though not its author, Mr. Field was a most strenuous supporter of the Homestead Bill, which finally passed after a severe struggle. At that time there was no exemption whatever of personal property in California, and none equally extensive to be found in the previous legislation of any State of the Union. It is understood by those who are familiar with Judge Field, that he looks back with greater satisfaction upon the exemption system which he thus (n-eated than upon any other of his legislative work. It lifted a lieavy load iVoiii debtors, ciiaMcd lli-Mii to ]>nr- sue their calliiiu'.s with freedoui, and instead oi' defeating the ends of justice by preventing the collection of debts, it has actually operated in favor of creditors, by securing the means whereby debts can l)e paid. Mr. Field also drew a bill creating the Counties of jSTe- vada and Klamath. As there was nmch complaint at the boundary lines of several counties in the State, various Ijills for their correction had been presented. These being referred to him, he reported a general bill revising and amending the bill of the previous year, dividing the entire State into counties, and establishing the seats of justice in them, in which the provisions for the new counties were incoi-porated; and the bill passed. lie also drew the char- ters of Marysville, Nevada, and Monterey; and the bill regulating divorces and detining the causes for which marriages may be annulled and absolute divorces granted. The foregoing summary shows an enormous and, I ven- ture to say, an altogether unprecedented amount of legis- lative work, conceived, prepared, perfected, and accom- plished by one man in a single session of only a few months in duration. The influence of this legislation upon the people and the material prosperity of California has been simply immeasurable; but it has not been eon- lined to the limits of a single State; it has extended over the entire Pacific Slope, and especially through all tlie mining regions. II. — His work (fs (I Mejnhcr of i/ie Calif orrtia Suprcnir Court. The direct effects of Judge Field's work on the State Bench, various and important as it was, have, of course, been confined to the State of California; and it is little to say that he has contributed more than any othei- of the judges to settle the jurisprudence of that State upon a broad and scientific basis of justice and equity. As a student of the California law, I venture the opinion that wherever the present codes ]iave departed from ihe rules laid down I)_v liiiu in his decisions, or in statntos of Avhicli he was the author, it will be found that the ehan^'e has he'en lor the worse — that it has j.rodueed ineonveni.Miee and sonietinies injustice, The liHllrcit etiects of his work have extended through- out the whole eountrv, in two distinet forms: Flv^^t. Many particular conclusions arrived at by the Court tiirough his influence, and embodied in positive rules for the State of California, and, in some instances, incorporated into its statutory legislation, have been bori'owed by the Courts and Legislatures of other commonwealths ; and thus, while directly constructing the law for one State, he has actually performed the same labor for other States of the Union. Seronilh/. Tlie general doctrines which he as a judge, or the Court under his lead, has discussed, ex- pounded, and declared in judieial o[tinions, have exerted a powerful influence in aiding the decisions of other tribunals and in shaping the development of legal and equitable principles in other parts of the Vnited States. In the examination which I shall now make of his work in the State Supreme Court, I shall not attempt to describe in detail any causes in the decision of which lie took a part, nor to quote from his legal opinions, nor to narrate the legal controversies which he aided in adjusting, nor even to discuss tlie legal principles and doc- trines w-hich he determined. The most important of these causes, opinions, controversies, and doctrines may l)e found, set forth at sufficient length and fully explained, in the printed vohmie to which this sketch is designed as an in- troduction. It would be a useless expenditure of time and lal)or for me to recapitulate in a condensed form the mat- ters of fact which are there more elaborately displayed. For this account in all its completeness of detail I simply refer to that section of the volume which deals with his labors while a judge of the Supreme Court of Cal- ifornia. The single purpose of this second division will be to portray his character as a judge; to describe the gen- 24 eral nature of liis Slate judieial work as a whole, and to enumerate the most important legal principles and branches of the State jurisprudence which were deter- mined and establislied by him, and by the Court through his influence. In order to form any adequate conceptioti of his judi- cial character, the nature and extent of his judicial work, and the vast results w'hich it accomplished, it is neces- sary^ to understand and to appreciate clearly the remark- able and wholly anomalous condition of the law at the time when he took his seat in the court. I have ah-eady spoken of this condition in general terms, Cahfornia was utterly unlike any of the other States at their early settle- ment. From the heterogeneous mass of immigrants, every variety of legal notions, habits, customs, and national sys- tems was represented among the population. The com- mon law was not accepted as a whole, and how far its principles should prevail as the foundation of the State j urisprudence was not determined. The civil law^, moditied and adulterated by passing through the Spanish-Mexican Codes, was acknowledged as furnishing the rules control- ling many of the older land titles. In the absence of positive law, tlie various settlements and collections of miners had adopted local regulations concerning mining and water privileges, which were treated as having the force and effect of law. The great- est amount, however, of embarrassment and difficulty presented arose from the vast number of peculiar inter- ests, industries, and proprietary rights and claims, wholly unlike anything to be found elsewhere in this country, and for which the principles of the common law and of equity, and the statutes of England and of the other States, furnished few, if any, analogies. Among these were the mines and all mining operations, water claims, ditches, irrigating canals, the titles to minerals in the soil, and the Mexican titles to land grants. In fact, the California judge was obliged to perform his work Avith little help from his previous knowledge of the law in the settlement of these and similar questions — questions entirely differ- ent fr*)in those which had been presented to other courts, American or English. He was required to frame a State jui-isprudence de uoro — to create a system out of what was at the time a mere chaos. Three distinct matters fur- nished the material for the nK)st important as well as vio- lent controversies, involving legal questions of the utmost difficulty and magnitude, affecting pecuniary interests to an incalculable amount, and provoking most bitter ani- mosities among the opposing parties — which animosities were often directed against the judges when the unjust and illegal claims of individuals or communities were de- feated. These matters were: 1st. The immense extent and indefinite boundaries of the Mexican land grants. 2d. The occupation by settlers of the public lands belong- ing to the United States, before the government had taken any steps to provide regulations for their use and sale. 3d. The mineral resources, the mining and water rights, and the claim of California to own the gold and silver found in any lands situated within the State. Added to this unprecedented condition of the law was the equally unprecedented condition of all business rela- tions subsisting between individuals, which cannot be bet- ter portrayed than l)y quoting the language of an associate with Judge Field upon the Supreme Court Bench of the State : "When, in addition, it is considered that an unex- ampled number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness; that legislation was accomp- lished in the same way, and presented the crudest and most incongruous materials for judicial construction; and that the whole scheme and organization of the government, and the relation of the departments to each other, had to be adjusted by judicial interpretation, — it may well be con- ceived what task even the ablest jurist woukl take upon himself when he assumed this office." 26 On the whole, the OaHfornia judges were confronted hy a task enormous in its diiticuUy and importance; wholly unprecedented in the leo-al and judicial history of the country; with little aid from the doctrines of jurispru- dence prevailing in other States; and requiring to be grap- pled with, adjusted, and settled without delay, upon a just and sohd basis. Their difficulties were still further en- hanced by the character and dispositions of a large por- tion of the population. As was inevitable, the absence of legal and social restraints had induced great numbers of persons to engage in the most extensive schemes of fraud- ulent acquisition, of grasping and accumulating property through an open disregard of others' rights, of asserting the most unscrupulous and unfounded claims, of over- riding law, order, equity, and justice in every possible manner, having the semblance of legal sanction. These persons were often influential, and could control the new^s- papers and other organs of temporary popular opinion. When their projects were thwarted by judicial deci- sions, they attempted to coerce the Court by public at- tacks of the most bitter nature upon individual judges, attacks such as have never been known, and would never for a moment be tolerated in the Eastern States, but which the Court was powerless either to prevent or to punish. The most able and upright members of the Court were made the objects of virulent abuse, the extent and fierceness of wdiicli we can hardly realize at the present day. It is true, that in the course of time, the truth gradually asserted its power, tlie public mind appreciated the justice and integ- rity of the decisions, perceived their wisdom, and acknowl- edged their beneficial results. Xotwithstanding this com- plete change in the popular opinion, now at the present day the old abuse is occasionally revived; individuals whose schemes were defeated still pursue the court with their hostile criticisms. As Judge Field stood pre-emi- nent among his associates in the fearless discharge of duty, he has been the especial object of tliese persistent libels. 27 Such being the problem presented to the California Su- pi-enie Court, it should be added, in forming a just esti- mate of Judge Field's work, that up to the time when he was placed upon the Bench, much less had been done to- wards its permanent solution than the public had a i-ight to expect. The Court, in its early years, had not always commanded that entire confidence and respect of the public which are essential to any tribunal, if its judgments are to have moral weight in a community in settling dis- puted questions and putting controversies at rest. While some of its members were men of great ability and learn- ing, and would have added to the strength of any Court, some of them had not had much experience at the bar, and were not possessed of the requisite acquirements for their position. And it must be confessed also that some of them, by their hal)its, had subjected themselves to un- pleasant comment, and the Court had thus sutiered in public estimation. It would subserve no useful purpose to enter into any particulars. The distinguished members of the Court of those days now living nve the most ready to ad- mit and deplore the truth of this statement. Their use- fulness was greatly impaired by the circumstances men- tioned, of wliich no one was more forcibly impressed than themselves. The most iuq»ortant work of Judge Field was done after Judges Baldwin and Cope had become his associates on the Bench. They were able and learned judges, and fully bore their share of the labors of the Court. Some of their opinions were admirable specimens of judicial reasoning. Yet it is admitted l)y all who were personally acquainted, as contemporaries and juirticipants, with the judicial history of the State, and it is a truth patent to all who have obtained their oidy knowledge from the reports of decisi(Mis during his term of olhce, that he assumed and maintained the position of leadership. In the fundamental principles adopted 1)v the Court, in the 28 doctrines which it announced, in the whole system which it constructed for the adjustment of the great questions hereinhefore described, his controUing influence was ap- parent; his creative force impressed itself upon his asso- ciates, guided their decisions, shaped and determined their work. The pre-eminence which he thus attained was universally recognized. Many of the decisions of the Court, however, though ex- hibiting great ability and learning, were of local interest alone, dealing with matters confined to California, or, at most, to the Pacific Coast. But in its dealings with mat- ters of general interest, with the principles and doctrines of common law and of equity, with municipal and private corporations, and with constitutional law, it rapidly rose in the estimation of the profession, until it reached a po- sition of authority with the Bench and Bar of the country second to no other State tribunal.* It would be a comparatively easy task for one who was personally a stranger to Judge Field, and was only ac- quainted with him through his reported decisions, to form a correct estimate of his judicial character. Its important elements, those which distinguish him from the other judges, and which constitute the special grounds of his success and of his power, stand out in clear-cut Hues upon all the creations of his oflicial laboi's. He has stamped him- self—his intellec.iial and moral features — deeply into all the work which he has done. From my own personal acquaintance with him, but chiefly from a careful study * About four years ago I was told by a gentleman, who for many years had been employed by a leading law publishing house of Boston as its travelling agent throuigh all the States of the Mississippi and Ohio Val- leys, that when he first began his work the New York reports were uni- versally sought for in every State, but that of late years the demand had changed from the New York to the California reports. Everywhere through the Western and NorthAvestern States, he said, the profession generally wished to obtain the California reports as next in authority after those of their own States. This fact alone speaks volumes. 29 of all liis important judgments rendered both wliile a member of the State Court, and after liis transfer to tlie I^J^ational .Indit'iarv, r have arrlvi'd at the followini; con- clusions, which I unhesitatingly submit as the most strik- ing and distinctive elements of his judicial character and work. They are undoubtedly the very qualities which, in our system of jurisprudence, steadily developing through the creative functions of the courts, mark the ideal judge; — the qualities which have been held by, and which admit him to be ranked with, the very foremost class of jurists who have sat upon the English and Amer- ican Bench, — the class which endjraces among others the names of Hardwicke, Manstield, Cottenham, and Cock- burn, in England, and Marshall, Kent, Story, Sliaw, and Denio, in America. In the first and lowest place, he possesses an ample legal learning. It cannot be pretended that he has that exact knowledge of technical common-law dogmas which dis- tinguished such a judge as Lord Kenyon or Baron Farke, or of the intricate minutiae of real estate and conveyancing law which alone gave Lord Eldon his pre-eminence among English chancellors, — a sort of knowledge which with a certain pedantic school has passed for the highest legal learning, but which is worse than useless rubbish for the American judge of to-day. Judge Field's learning, as a distinctive feature of his intellect, is ratlior the capacity in an extraordinary degree to acquire the new knowledge made necessary by the demands of his position; — the ca- pacity to investigate sources and systems of jurisprudence hitherto unknown, to sift truth from error, to extract what- ever there is of living principle, and to appropriate and to assimilate the materials thus obtained with the State or national law which he is administering. He brought to the Bench a mind stored with the doctrines of the com- mon law and of equity, great intellectual vigor, and a most remarkable capacity for rapid and sustained mental labor. The exigencies of his position required him to investigate •30 tlie Spaiiish-Mexieiui Codes, wliicli fui-nislK'd tlio authori- tative rules concerning " pueblos," with all the municipal and proprietary rights flowing therefrom, and concerning the Mexican Govermental grants to private owners, and also to create general principles and doctrines for which the common law and equity of England and the United States aiibrded very few if any analogies. It is enough to say that his learning, his intellectual power, and his thorough and accurate study of foreign systems, were always adequate to meet the requirements of the occa- sion. Still, I regard Judge Field's mere technical legal knowledge — the facts which he has acquired in a concrete form and stored up in his memory — as a very subordinate element in his judicial character. In this mere learning ho is undoubtedly surpassed by many judges who are not only otherwise his inferiors, but who have never even at- tained to any comparative distinction in tlieir own States, iiut in the liigli intellectual power, which I have attenq_>ted to descril)e, the power to analyze, to sift, to select, to ap- propriate truths, pi-inciples,and doctrines, and to assimilate them with the jurisprudence already established, and above all, to create where there was no material from which to l)orrow, he has been equalled by few, and, in my opinion, surpassed by none of the modern American judges. The second and much more inq3ortant element which I shall notice, is his devotion to principle; — that quahty of intellect which leads him, on all judicial occasions, to seek for, apprehend, and appreciate principles, rather than to rest satisfied with mere rules, although sustained by prece- dent, and to apply firmly these principles where found in all their relations and consequences ; — to place his deci- sions upon the sohd basis of fundamental and universal principles, rather than upon arbitrary dogmas. This qual- ity gives a most marked unity, consistency, and universal- ity to his decisions, not only to those connected with some single branch of the law, but to those belonging to any and all departments. llis adju', intevpretinii', and ap^ilyini^ the law, is tlie immediate and efficient cause of that most remarkahle consistency which runs through all liis judicial utterances. I shall have occasion to speak more in detail ol' this special feature of consistency, when descrihing his Judgments upon questions of constitutional law ; ami although it appears, perlia[)s in the most striking manner, in that class of cases, it is still a distinguishing mark of all his work. The power of discovering, apprehending, and ap- plying principles, is the highest mtdlectudl faculty of tiie ideal judge ; it takes the place of, and is universally supe- rior to, any amount of mere leariung ; it is the very essence of the best learning which can be employed in the judicial station. In fact great learning alone, wdth a total absence of the power to comprehend, combine, and enforce the general truths of jurisprudence, would un- doubtedly be more dangerous on the Bench, more liable to produce injustice, than comparative ignorance. This intellectual quality of appreciating and applying princi- ples, of discovering their mutual relations, of following them to tlieir legitimate consequences, and of applying them in the deduction of particular rules, which Judge Field possesses in sucli a high degree, has rendered his opinions exceedingly' useful to text-writers, who have fre- quently spoken of them in the highest terms of praise. As has already been said, many of his judgments, pro- nounced while in the State Court, relate to matters of purely local interest, such as the pecuhar land titles of California, the Mexican pueblos, the ownership of gold and silver in situ, mining and water rights, etc.; and this class of cases undoubtedly re(|uired for tlieir decision the greatest amount of original investigation, tracing of ob- scure analogies, and creative power, — an expenditure of intellectual force which can liardly be appreciated by tlie 32 profession in other piirts of the country who are unfaniihar with the intricate questions involved. On the other hand, many of his opinions deal with subjects of universal in- terest, as for example, the powers and liabilities of munic- ipal and of private corporations, the nature of mortgages, tlie validity of Sunday laws, etc. These judgments have uniforndy been regarded by the profession and courts of other States, and by text writers, as having the highest authority. They have been quoted with the strongest lan- guage of approval l)y such authors as "Washburn and Dillon ; and their clear and accurate statement of princi- ples renders them peculiarly instructive to students of the law in all parts of the Union. The third distinctive element requiring special notice is what may appropriately be called his creative power. By this designation I mean his ability in developing, enlarg- ing, and improving the law, by additions of new material, whether this material be l)orrowed from foreign sources or ci-eated by means of the legislative function belonging to all Superior Courts. The intellectual attributes referred to in this and in the preceding head are entirely distinct; they may co-exist in the same individual, or the first may be possessed in a high degree without the other. The tirst deals with the jurisprudence as it has already l)een estab- lished, investigating, examining, and expounding or ap- plying its settled principles and doctrines; the other is creative and legislative, employed in constructing new law, or reforming and expanding that which already ex- ists. Many judges of great and well-deserved reputation have possessed the first quality to a remarkable extent, without any of the second — of which class, I think. Judge Story was an example. Judge Field's peculiar talent as a legal reformer was shown in his purely legislative work done while a member of the State Assembly, and de- scribed in a previous division of this essay. He exhibited the same power and tendency upon the Bench. They were shown in his constant rejection of ancient common- 33 law (loi2:inas, no iiiattei- how liniily settled upon authority, which had become outi2;rown, obsolete, and unfitted for the present condition of society, and in the substitution of more just, consistent, and practical doctrines adapti-d to the needs of our own country and people, I merely men- tion, as sutHcient examples of this class, his decisions upon the nature and effect of mortgao:es, and those concerning the ownership of gold and silver while in the soil, by which he boldly swept away the common-law rules on the subject, with all the absurd reasoning upon which they had been founded. The same power and tendency were shown in his accurate perception of those principles and rules contained in foreign systems of juiisprudence which should he borrowed and incorporated into the judicial leg- islation of the State, both for the purpose of protecting many peculiar rights of property and special interests, and of regulating social relations, existing in California but unknown in nearly all the other States. Illustrations of the first kind may l)e found in his series of most important decisions concerning ''pueblos" and the municipal and proprietary rights belonging to tliem; and concerning Mexican land-grants, in which the rules were borrowed from the Spanisli-Mexican codes; and in those concern- ing the occupation of public lands and mining and water rights. A most illustrative example of the other kind is seen in his decisions relating to the community property of husband and wife,— an incident of the marriage rela- tion derived from the Spanish-Mexican jurisprudence, — which placed the rights of the two spouses in that unique species of property upon a firm and equitable foundation. The same power and tendency are shown in his decisions concerning procedure, in which he more ably and con- sistently, perhaps, than any other judge, has carried into operation the true spirit and intent of the reformed Amer- ican procedure. The fourth element of his judicial character is his fear- lessness. As the power to appreliend and apply princi- 84 pies is the hii^hest iMc/J edaul qnaWty, so is a true fearless- ness the highest moral attribute of the ideal judge. Ko other American judge has so often been called upon to face popular opposition in the decision of controversies involving important legal questions, in which large masses of the population were interested, and on one side (^f which all their passions, prejudices, and seliisii motives were fully aroused, and often were raging in the tierccst manner; and no othei- judge has more fre- quently and faithfully dischai-ged his sacred duty of de- ciding according to his own enlightened convictions of law aiul justice, in complete oblivion of all external forces, and in absolute fearlessness of the consequences. lie lias neitber courted personal popularity nor shrunk from uiipo[)iilarit3'- by means of his decisions. He could well apply to himself the memorable and noble lan- guage which Lord Mansfield used from the Dench when made the object of a violent clamor on account of his de- cisions: " I will do my duty unawed. What am T to fear ? The lies of calumny carry no terror to me. I trust that my temper of mind, and the color and conduct of my life, have given me a suit of armor against these arrows. . . . I wish popularity, but it is that popularity which follows, not that which is run after; it is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right, though it should draw on me the whole ar- tillery of libels, — all that falsehood and mahce can invent, or the credulity of a deluded populace can swallow. I can say, with a great magistrate, upon an occasion and under circumstances not unlike, ' Ego hoc animo semper fui, ut invidiam virtute partam,gloriara,non invidiam, putarem.' " IsTo friend of Judge Field can estimate his intellectual and moral fearlessness too highly; no enemy can denj^, or ever has denied that he possessed it. He has repeatedly 35 ciu'omitoi'od, and been conipollcdto endure, the bitter lios- tility of extreme partisans belonging to the most opposite schools of opinion; of i-xtrome Repnbhcans and extreme Demot'i-ats; of those wlio maintain the dogma of State sov- ereignty, and of those \vl)0 assei't the al)sohite legislative power of the national government; of ignorant and [irej- udieed masses, and of scheming s[)^H'nlators who would dis- regard all law and right in order to accom[>lish their pnr- poses. All these outbursts of opposition have, however, died away; the justice and wisdom, as well as the law, of his decisions are vindicated. 'fliat trne po[.ularity has succeeded among all intelligent persons, which, in the words of Lord .\hinstield, " never fails to do justice to the pursuit of noble ends by noble means." From the very commencement of his career on the State Bench, and through all the following years, opportunities have fre- (piently been presented to him, in the regular discharge of his official functions, by wdiicli, without any plain surren- der of right, any obvious transgression of duty, by the mere adoption of a ditfcrent line of argument leading to a, diti'erent conclusion, — and even sometimes when that line of argument and that conclusion were, upon a surface view, correct, and were ap[)roved by a majority of the legal pro- fession,— opportunities, I say, by which, in this manner, he might have obtained an immediate and even an enthusias- tic popularity; but in which, by following the voice of con- science and duty, and the dictates of his own matured judgment, he was certain to encounter a storm of hostile criticism, and even malignant hatred. On no occasion was he evei- intiuenced by either of these considerations; on no occasion did ho ever swerve from his duty and sur- render his own conscience and enlightened judgment. My space will not permit me to review these events in his life. Any correct account .of the decisions made in the State Supreme Court concerning the pueblo of San Francisco and the titles derived from the muni- cipality, concerning the occupation of public lands, con- 36 cerning the State ownership of gold and Bilvei', and the claims of miners to enter npon all lands, pi-ivate as well as public, in search for the precious metals, concerning the rights of Mexican grantees and the intruders upon their lands, and concerning the validity of certain acts done by the municipal government of San Francisco, wMl exhibit in the clearest manner the quality of recti- tude and fearlessness which is such a distinctive element of his character.* In many of tlie decisions rendered in the United States Supi-eme Court, indirectly growing out of the civil war, and directly out of congressional legisla- tion enacted in consequence of the w^ar, including those dealing with the validity of test-oaths, the extent and limi- tations of martial law, the trial of civilians by military tribunals, the suspension of the writ of habeas corpus, and similar questions atiecting the ver}^ foundations of our po- litical institutions and of our civil liberties, — the same quality was exhibited from a higher station and in the presence of the whole nation. In addition to otlier in- stances, there is one of later occurrence which is still more illustrative. It may l)e aihrmed, I thiidc, without any real doubt as to its correctness, that during the past year, by his deliberate and fearless discharge of duty, by following his own convictions as to the law, and by rendering a decision in the now memorable Chinese Queue Case, which, however righteous and in accordance with the fundamental principles of constitutional law, awoke a storm of fierce opposition and hatred among all the lowest and most ignorant classes of tlie political party with which he is connected. Judge Field lost— nay, sacri- ficed — his chances, otherwise good, of a nomination by his party for the Presidency. It can be certainly shown that scheming politicians, anxious only for their own personal advancement, working upon this temporary unpopularity among the Democratic masses of California, prevented him * See " Persoual Reminiscences of Early Days iu California," pages 137 to 171, inclusive. 87 from obtainino- the sui>port of liis own Stale, and thus ren- dered his nonuiiatioii bj tlie N'ational Convention ini[.()ssi- ble. As a moderate Republican, knowing the opinions of that large division of the parly commonly called "Liberal Republicans," I do not hesitate to express the strong con- viction that if Judge Field had received the nomination from the Democratic party, he would certainly have been elected. The decision as to the validity of a nnserable city ordinance requiring the queues of C'hinese prisoners to be cut olf, lost him the Democratic support of California. lie has, instead, the approval of his own judgment, and of all intelligent, thoughtful men throughout the country. There are other traits of his intellectual character and of his work, in themselves worthy of mention, such as his diligence, his capacity for continued labor, his rapidity of execution, and particularly his clear and accu- rate style of hterary composition, which renders some of his more carefully prepared opinions models of judicial argumentation; but I pass them by without further no- tice as not being distinctive, since they are shared with him in an equal and sometimes in a superior degree, by others judges both of the State and the national courts. I pass to a consideration of the work which he did while a member of the Supreme Court of California. This must be merely a brief reference. Any full account would necessarily be a reproduction of the matters contained in pages 16 to 38 of the printed volume. I shall, therefore, simply enumerate the leading decisions, arranged in groups according to their subject-matter, which best exhibit his distinctive qualities as a judge, and embody his most im- portant judicial work. They naturally fall into two main divisions: (1) Those which deal with common law and equitable doctrines of general interest to the profession of all the States; and (2) Those whicli deal with mere local matters, of which the interest is chiefly contined to the profession and people of California and the other Pacific States. 1. Mati 'IS of /I f/r/iciy// infrirsf. — Amons^ tlio most import- ant of these to[)ic.s were the followitiL!;. The poiocrs and liabilities of Marddpal Corporf/tioiis. Certain transactions entered into and acts done l\y the governint!,- hody of San Francisco gave rise to a bitter judicial controversy extend- ing tlirough several litigations, in whicli the Supreme Court was called upon to examine, from their very founda- tions, the doctrines of the American common law con- cerning the powers and liabilities of Municipal Corpora- tions, in the absence of express chartey or other statutory provisions defining and limiting the same.* The opinions of Judge Field in these cases are universally regarded as of the highest authority. They are able, thorough, and ex- haustive decisions of the law, and reach conclusions based both upon principle and precedent which have been ac- cepted by the ablest text-writers, and especially by Judge Dillon, as final. Mortgages. — The Supreme Court, while he was a mem- ber of it, freed the jurisprudence of California from the last vestige of the old common-law notions concerning tlie nature and effect of the mortgage, and adopted the I'ational and c »nsistent erpiitable theory as the single system which should (letermine all private relations and should prevail in all tribunals, both of law and of equity. His opinions explaining, advocating, and enforcing this single equita- ble conception of the mortgage as purely a hypothecation, as creating no estate in the land, as a mere lien, and not a jits ad rem nov a jus in re, have not been excelled in their clearness of statement and cogency of argument by those of any other Court whicli has maintained the same view, and they have undoubtedly done nmch to promote its ac- ceptance in other States.t ISTo opinions upon the sul)ject * McCrakcn vs. Saa Francisco, 16 Cal., 591 ; Grogan vs. The Same, 18 Cal., 608 ; Pimental vs. The Same, 21 Cal., 359 ; Argeuti vs. The Same, 16 Cal., 282 ; Zottman vs. The Same, 20 Cal., 9;).— See the printeil volume, pp. 30-32. t McMillan vs. Richards, 9 Cal., 365; Nagle vs. Macy, 9 Cal., 426 ; .Tohnsou vs. Sherman, 15 Cal., 287 ; Goodenow vs. Ewer, 16 Cal., 401. — See printed vol., pp. 32, 33. 89 are more iusti-iu'tivc (nv t\\v stiulcnt in all parts of the conuti'v. Sini'if)/ Litvs.—Vndcv ii eoiistitiitioiial provision sub- staiitially the same as that in most other States, a ma- jority of the Supreme C.)urt pronounced rmconstitutional and void a statute wliieh simply prohibited the kei'i»in<;- open of business places (with certain specified exceptions) an-r!80; Fremont vs. Fowler, and Moore vs. Smaw, 17 Cal., 200. See the printed vol., pp. 26-29; " Early Days in California," pp. 14.^- 153. 44 exist either under or in opposition to them, and a nnndier of other incidents.* 5. The Piiehlo of San Francisco, and the proprietai-y rights derived therefrom. The decision of the Supreme Court that a " pueblo " existed at the site of San Fran- cisco, and that the city had succeeded to its proprietary rights under the Mexican laws, settled a dispute which had existed since the very beginning of the American settlement. The opinion in the first and leading case was written by Judge Baldwin and concurred in by Judge Field. t The latter's most important work in connection with this matter was done Ijy him as United States judge, presiding in the IT. S. Circuit Court. He there rendered a final decree establishing the proprietar}^ rights of San Francisco, which was afterwards confirmed by Congress, and now constitutes the foundation of all the titles within a large part of the city limits. J 6. The communit)/ property/ of husband and wife, its na- ture, and the rules regulating its management, disposition, and dissolution, and determining the rights in it of the two spouses. 1 1 7. Other subjects.— A number of other subjects of great importance, which were considered by the State Court, are mentioned in the printed volume; such as the claim of the State to five hundred thousand acres of land granted by the 8th section of the act of Congress of September 4th, 1841, for purposes of internal improvement, and its right to dispose of the lands in advance of the public surveys ; * Moore vs. Wilkinson, 13 Cal., 478 ; Biddle-Boggs vs. Merced Mining Co., 14 Cal., 361-366 ; Stark vs. Barrett, 15 Cal., 362 ; Mott vs. Smith, 16 Cal., 534 ; Teschemacker vs. Thompson, 18 Cal., 20 ; Leese vs. Clark, 18 Cal., 565 ; 20 Cal., 411 ; Estrada vs. Murphy, 18 Cal., 268 ; Beard vs. Fed- ery, 3 Wall., 478.— See printed vol., p. 30. t Hart vs. Burnett, 15 Cal., 530. X The Pueblo Case, 4 Sawyer, 553. See " Early Days in California," pp. 153-163 ; pp. 241-243. II Myer vs. Kinzer, 12 Cal., 247 ; Smith vs. Smith, 12 Cal., 216-225 ; Pix- ley vs. Huggins, 15 Cal., 128 ; Van Maren vs, Joliuson, Id,, 308 : Scott vs. Ward, 13 Id., 458, 45 contracts of the State for the support and labor of its con- victs; the power of the Courts to compel by mandamus officers of the State to do their duty; conflicting rights of miners to the use of the water of streams in the moun- tains for the purpose of mining; the construction of wills; the distinction between mortgages and deeds of trust, and many other matters.* III. — His irork as -e Field and otliei's wlio cM)iii[)os(.'d tlu' majority iviiderini;- tiie decision. It is undoubtedly true, as a general rule, that eoncurring judges are not necessarily required to agree witli all of llie views expressed in tlie prevailing opinion of tlie Court. Wliile tliey must agree with its eou- clusions, there may be modes of reasoning, lV)rms of argu- ment, personal notions of the one writing tlie opinion, to wliich the concurring judges do not wholly assent. There are, however, special reasons why this ordinary rule can- not be applied to these two cases. They were test cases, most carefully considered by the Court, and intended by the majority to put the questions involved, forever at rest. This was especially true of Texas vs. AVhite. Again, the conclusions reached, and concurred in by the majority, are such as necessarily required an assent to the whole course of reasoning contained in the opinions. It would be im- possible to reject any substantial position taken l)y the Chief Justice, or any particular argument in his chain of reasoning, without at the same time rejecting the conclu- sions which he finally reaches, and wdiich form the basis of the judgment. To this I may add the testimony of Chief Justice Chase himself. In a letter written to me shortly after the decision of Texas vs. White was an- nounced, he says, concerning the opinion in that case : "■ That opinion was very much discussed, especially by the judges who concurred in it, and may, I thiidv, be re- garded as a tolerably correct expression of the views of the Court as to the nature of the National Union, of its re- lations to the States, and of the principles of re-organiza- tion of States disorganized by rebelhon, and of the restor- ation of national relations interrupted by civil war." It niay, therefore, be considered as certain that these two cases express the dehberate convictions and opinions held by Judge Field; and in no subsequent case has he expressed any sentiment, or adopted any course of reason- ing, or announced any doctrine, in opposition to these most important and protound judgments. 54 The same high view eoiiceniiiiii' tlie t^upi'onuicy of the United States Goveninient, within the field of its dele- gated powers, and concerning tlie hmitations placed upon State action, is exhibited in his interpretation of the XlVth Amendment — that crowning and consummate provision of the organic hiw. So far from tlie absurd charge that he is hostile to this amendment being true, it was Judge Field himself who first, in a dissenting opinion, gave to the amendment that broad, liberal, and universal construction which renders it, as was intended, the most perfect safe- guard against the encroachments of State governmental action upon the private civil rights of all persons. The first cases involving the amendment which came before the Court were the Slaughter-House Cases. — (16 Wall., 36.) The majority of the Court, in an opinion by Mr. Jus- tire Miller,* jjut upon the amendment a most narrow in- terpretation, which would utterly destroy its value as a protection of private civil rights. The}^ adopted as their fundamental proposition the strange notion that the amend- ment was confined in its operations to negroes. They held that tl)e Xlllth, XlVth, and XVth Amendments wei-e steps in the accomplishment of one final object — the abo- lition of slavery and the perfect . freedom and protection of the negro race. They declared that, although ex- pressed in general terms, the primary design and main purport of the XlVth Amendment was to confirm the status of negroes as citizens, and to prevent the encroach- ments of State laws which would discrimituxte against them. This was all the mearung which the majority could find in provisions designed to protect all persons against * This opinion is the more strange and inconsistent since Judge Miller has always advocated views which tend to break down almost all limi- tations upon the general government, and to make the legislative powers of Congress almost universal. While maintaining a general theory con- cerning the nationality of the U. S., which I believe to be on the whole correct, he is inclined to ignore or weaken the restrictions which the Constitution has everywhere placed upon the exercise of full national powers by Congress. unjvist jictioii of the local government. Mr. Justice Mil- ler went so far, while commenting upon tlie last and most sweeping provision— " nor shall any State deny to anv person within its jarisdiction the e(iual protection of tlie laws " — as to say of it: " We douht very rnnch whethei- any action of a State, not directed hy way of disci'imina- tion against the negroes as a class, or on account of their race, will ever he held to come within the province of this provision." Four judges dissented from this narrow con- struction, in a most powerful opinion written hy Judge Field. He asserted in the strongest terms the universality of the amendment, its application to all classes of persons. He denied that its operation was confined to the negroes. It afforded the same protection to aU persons against local oppressive laws; it secured to all persons the equal pro- tection of the laws. In a word, the XlVth Amendment was enacted to supply a great want, which had existed since the foundation of the government. "While the States wei-e from the outset forbidden to pass ex post facto laws, or bills of attainder, or laws impairing the obligation of contracts, the}^ might in many other ways invade the rights of citizens, and the national courts could grant no relief. This beneficial amendment throws the protection of the national courts around ihe lives, liberty, and proj)erty of all persons, and enables tlie supreme tribunal to annul all oppressive laws which the partisanship of local courts might perhaps sustain. To limit the meaning of the amendment, to confine its effect to one portion of the in- liabitants, and that a comparatively small part, was to de- feat its most important design, and to destro}^ its highest usefulness. The construction then put upon it by the ma- jority simply emasculated the amendment, Tlie broad, lil)eral, and national interpretation of Judge Field and the minority, is clearly correct; and to it he has steadily adhered in every subsequent case coming before the Sup)reme Court, or before himself in the Circuit Court, down to and including the somewhat famous " Chinese Queue Case," in which he directly held that certain local legislation was annulled by the amendment. Judge Field's position in this matter should not be misunder- stood. In the recent cases which have attracted so much attention, involving the validity of certain legis- lation of Congress purporting to be based upon the XIV th Amendment, he does not deny the validity nor the efficacy of that amendment; on the contrary, he re- iterates all the views which he had before expressed. He dissents from the Court solely with respect to the legisla- tion which Congress may properly enact for the purpose of carrying it into eflect. He declares that no affirmative leg- islation is either necessary or appropriate. Like the clauses forbidding States to pass ex post f ado laws, or bills of at- tainder, or laws impairing the obligation of contracts, the prohil>itions of the amendment execute themselves. They are addressed to the States in their corporate capacity, and not to individuals, and they annul all State legislation which conflicts with their provisions. He regards the sacred principles of local self-government as lying at the very foundation of our institutions. The theory of the Con- stitution is, that all affirmative control over and legisla- tion concerning private rights and relations, are coniided exclusively to the individual States, and are not delegated to Congress. The XlVth Amendment has enabled the national courts to exercise a judicial scrutiny over this State legislation, to determine its validity, and to pronounce it null and void when discriminating or oppressive or vio- lative of private civil rights; but the amendment cannot be regarded as revolutionizing the entire theory of our political organization, and as transferring Xa Congress the power of legislating with respect to private and personal rights. This is, in outline, the position maintained by Judge Field. It is entirely consistent with his doctrines concerning the supremacy of the General Government; it is, in fact, a part of one rounded, complete, and consistent system. The supremacy of the General Government within tlie scope of those powers delegated to it by the (\)nstitution, 1 is also niaiiitniiuMl in the most positive maiiiicr l>y n lono- scries of decisions, in nianv of which lie (lelix'ci'cd the opinion of the Court, and in the ollu-rs conciiri'ed, dealing with foi-eign cinnnierce, inter-state commerce, the ohjects of State taxation, and other analogous suhjects of eon- gi-essional legislation. In numerous decisions covering every aspeet of tlie question, and in language as pointed and emphatic as any that was ever used by Marshall or Story, he has affirmed the supreme and exclusive power of Congress over all branches and kinds of foreign or in- ter-state commerce which are national in their character, or requiring a uniform rule, the invalidity of State statutes which either directly or indirectly interfere with the free- dom of inter-state traffic, or with the equality of civil rights belonging to citizens of other States. T)\(\ my time and space permit, it would be both interesting and instruc- tive to quote some passages from the opinions of this class; but I must be content with collecting and arranging the most important cases in the foot-note.* Here, also, it should l)e noticed that Judge Field has been uniformly consistent, even when the Court has departed from its estabhshed principles, as it did in some of the so-called Granger Cases involving the validity of State statutes which interfered with and prescribed regulations atfecting tlie inter-state transportation of goods and |>ersons, and the inter-state traffic in goods. t *See the following cases in which he delivered the opinion of the Court : Welton vs. Missouri, 1 Otto, 275 ; Sherlock vs. Ailing, 3 Otto, 99 ; The Daniel Ball, 10 Wall., 357, 365; State Tax on Foreign Bondholders, 15 Wall., 300 ; County of Mobile vs. Kimball, 12 Otto. 691 ; Tiernau vs. Rinker, Ibid., 123 ; In re Ah Fong, 3 Sawyer, 144, 151 ; and also the follow- ing, among numerous others, in which he concurred : Case of State Freight Tax, 15 AVall., 232; Chy Lung vs. Freeman, 2 Otto, 275; Eailroad vs. Husen, 5 Otto, 465 ; Henderson vs. Mayor of X. Y., 2 Otto, 259. fMunn vs. Illinois, 4 Otto, 113, 1.35; Chicago, &c., K. E. vs. Iowa, 4 Otto, 155, 163 ; Peik vs. Chicago, &c., R. R., 4 Otto, 164, 177. Judge Field's dissent in this group of cases is a noble protest against State legislation invading the rights of private property, and as a course of reasoning is. as it seems to me, unanswerable. K 58 One of the most distinguishing features of Judge Field's character as an interpreter of the Constitution, and of his work as a member of the iSTational Judiciary, appears in the steady, uniform, and energetic manner in which he lias enforced all the safeguards which the Constitution and its amendments have thrown around the pei'sonal rights of life, liberty, and property, by inhibiting all legislative or executive action, either of the federal or of the State governments, which would encroach upon those rights. He has clearly perceived that the primary object of all constitutional government is the protection of those sacred rights and immunities which constitute " civil liberty," and that a government which can only be maintained by ignoring or violating those rights is not worth preserving and maintaining. On the other hand, he has perceived, with an equally clear vision, that our own national organi- zation, our political institutions, the integrity of our Union, and the autonomy of the States, could be upheld, pre- served, and maintained by means of a strict and faithful adherence to the restrictions and limitations embodied in the Bill of Rights; that the preservation of the Union, the suppression of insurrection, and the ultimate triumph of the principles of freedom and equality, did not require any abandonment of, or interference with, local self-gov- ernment, or the civil liberties of the private citizen. This element of his character and work is fully displayed in the ac(;ompanying volume and needs no further description. At the outbreak of tlie civil war a species of political insanity seems to have seized upon large numbers of other- wise thoughtful and intelligent men. The power of the President to disregard all the legal securities of life, lib- erty, and property, to enforce martial law against civilians, to establish military courts in States removed from the scene of war, and subject persons there to military trials and punishments, was asserted in the most positive man- ner ; any denial or even doubt of the authority was treated as disloyalty. Tt is simply amazing to look back 59 to that period and to recall the opinions which were tlieu pnhhcly maintained.* The whole subject, in fact, pre- sented two aspects, namely: the eifect of suspending; the writ of habeas corpus, and the power to enforce martial law. It was asserted that the authority given to suspend the writ of habeas corpus during insurrection or invasion included the authority to disregard all the safeguards which the Bill of Rights has tlirown around life, liberty, and property, and drew after it, as a necessary conse- quence, the power to make military arrests of citizens, and subject them to military trials and punishments. Even at the veiy outset a warning voice was raised against these monstrous conclusions. The venerable Horace Binney, the acknowledged leader of the American Bar, the asso- ciate and friend of all the greatest statesmen and judges of our earlier period, who, as a scholar in the Philadelphia High School, walked in pubhc procession at the adoption of the United States Constitution, and then first felt, as he Vv^rote to me, that he belonged to a nation, to something he could call his country, — Horace Binney wrote and pub- lished three essays in which he examined the subject of suspending the w-rit of habeas corpus in a most exhaustive manner, and showed, by a course of reasoning which amounts to absolute demonstration, that suspending the writ does not in the least aflect the authority over arrests ; that it does not enable Congress to allow, nor the Ex- ecutive to make, arrests without legal cause or in an arbi- trary manner; that it does not legalize seizures otherwise arbitrary, nor give any greater authority than that of de- taining suspected persons in custody whom the govern- ment would else be obliged to bring to a speedy trial or to release on bail. *A large volume was written and published called "The War Powers under the Constitution," a book maintaining sentiments suited, perhaps, to the autocratic despotism of Russia in its struggle with the Nihilists, but which are simply the negation of every fundamental principle of civil liberty and of private rights contained in our own political institu- tions. 60 Tliese conclusions thus reached by Horace Binney were adopted by the Supreme Court in the Milhgan Case (4 Wall., 2, 115), in the decision of which Judge Field concurred. The claim to exercise martial law against civilians was still more terrible. A most elaborate and exhaustive examination of tlie power to enforce martial law under or Ijy virtue of the common law was made a few years ago by Lord Chief Justice Cockburn, one of the ablest chiefs who ever sat on the English Bench, and whose recent death is a great loss to the English ad- ministration of justice,* After a review of the prece- dents, ancient and modern, set forth in the wonderfully clear manner for which he was so pre-eminently dis- tinguished, the Chief Justice reached the conclusion that under the common law there is no authority to enforce the martial law in any part of the British Empire where the common law prevails; in other words, the common law knows no such attribute of executive power. This conclusion the Supreme Court also adopted in the Milh- gan case. There can be no martial law in the United States except as an instrument and means of cai'rying on actual warfare, of conducting actual hostilities in re- gions occupied by the opposing armies. This doctrine received the hearty approval of Judge Field, and has l)een on every occasion maintained by him. See es- pecially his dissenting opinion in Beckvvith vs. Bean, (8 Otto, 285-306. ) I must not pursue this analysis into any further detail. I have shown that his system of constitutional construc- tion is consistent and complete; that it recognizes and maintains alike the lawful supremacy and exclusive au- thority of the General Government within the scope of powers delegated to it, and the just rights of individual * Charge of the Lord Chief Justice of England in the ease of tlie Queen vs. Nelson and Brand, London, 1867, a case growing out of the negro insurrection, or rather tumult, in Jamaica, and the conduct of the Gov- ernor. 61 States; tlifit it preserves unimpaired all the restrictions and limitations imposed upon the governmental action both of the States and of the nation; that it jealously guards the private and civil rights and immunities of per- sons; and tiiat it respects and keeps in force the sacred principles (-•f local self-government, and of civil and con- stitutional liberty, which underlie all our political institu- tions. From his opiinons alone, a complete and consistent system of constitutional law might be composed, in whicli the American citizen would find a perfect text-book of political science, an exhaustive treatise upon the institu- tions of his country. In conclusion, the proposition is, in my opinion, estab- lished by the foregoing sketch, that by his creative force as a state legislator, as a state judge, and, above all, as a meml)er of the Supreme ISTational Tribunal, Judge Fiekl has, as much as any jurist of the present generation, im- pressed himself upon the jurisprudence of his country. Note. The articles in this volume are a compilation made by political and personal friends of Judge Field. The greater part of them were prepared in 1880. Those added since have been furnished principally by members of the Bar of California. The whole are now published at the request of gentlemen of that State, where it is believed they will be favorably received from the number of important pub- lic questions considered in them, and the ability with which the questions are treated. No reference is made to the action of the associates of Judge Field on the Bench or in the Electoral Commission further than is necessary to illustrate and explain his con- duct and positions. It is only with his career that the volume is concerned, and its limits would not allow any extended statement of their views and acts. Chauncey F. Black. Samuel B. Smith. New Yokk, July, 1881. STEPHEN J. FIELD LEGISLATOR, STATE JUDGE, AND JUDGE OF THE SUPREME COURT OF THE UNFTED STATES. JUDGE FIELD AS A LEGISLATOR. TIk' Legi-ilation. secured by him for tlir Protection of 3Iitier.'< in fJieir Mining Claims. From tlir Sun Jose D.VII.Y Hkrai.D [(Mifoniia \ of Xnrrmlirr 18,1879. "The long judicial service of our distinguished fellow- citizen, embracing nearly six years in the Suj^reme Court of the State, and more than sixteen in the Supreme Court of the United States, has been marked by most al)le opin- ions on many great leading questions. This fact has very naturally connected his name in the public mind mainly with those questions, and few are aware of other, and even more important services, rendered our State l)y him, as a legislator, in tlie early days of the State's history. He was a member of the second legislature which was chosen in the Fall of 1850, and represented the then county of Yuba, which at that time included also what are now Sierra and Xevada counties. " The first legislature had eiiacted a general system of laws, sm-li as are indispensable to the government .of any community. It had done uuthing, however, toward the pro- tection or regulation of that great interest whicli had gath- ered together from every State in tlie Union, and from every nation of the world, the restless and sometimes tur- bulent ])<)[)u]atio]i of the CaHfornia of tliirty years ago. The gold seekers were left to jostle each otliei-, and to settle their disputes as best they might. The ownership of the mines was held by some to be in the United States, and by others to be in the State, while all were alike extremely jealous of any assertion of power over them by the government of either. It was evident that the miners could not long be left to fight among themselves over questions of priority or extent of claims, while it was equally evident that legis- lation on the sul)ject must be in accord with generally ac- cepted opinion or it would be a dead letter. The situation was a grave one, and it demanded statesmanlike treatment. To do nothing was to leave the peace of the State at the mercy of those whose fierce thirst for gold might outrun their respect for fair dealing. Honest misunderstandings as to facts were oftenest settled by immediate appeal to brute force. The world has probably never seen a sim- ilar spectacle — that of extensive gold-fields suddenly peo- pled by masses of men from all States and countries, re- strained by no law, and not agreed as to whence the laws ought to emanate by which they would consent to be bound. As in all other emergencies, the one man was there to bring forward the saving measure. Stephen J. Field solved the ditficult problem. He saw that the rude society around him would shatter to fragments any system in which its own strong will and native common sense were not taken into account. The miners had, in each camp, held meetings, and enacted rules and regulations by which they agreed to be governed in that place. These had reference to the ex- tent of each claim in the given locahty , the acts necessary to constitute location or appropriation of the same, and the amount of work which should entitle the claimant to con- tinued possession. The State could not safely attempt to substitute for these various rules any of a more general and uniform character. This fact was the basis of the measure brought forward by Judge Field in the Legislature of 1851, and by him urged to final success. He did not leave the miners to be a law unto themselves, but held tlu'in to tlio laws tlicy had inade ior tlioiiisclvcs. His plan was siiii[>l(' and at tlu" same tinic tliorouii-Ji and sound. It was that the rules made hy the miiu'i-s sliould he eii- foreed l)y the Statt'. What tliey had (h'cjared to l»e fair [.lay should hetlie law of the land, and should LCoveni the eourts in tlieir deeisions in niininii' dis[»utes. Here is the lan- guaii'e : '■ In actions respecting ' Mining CUaims ' proof shall be admitted of the customs, usages, or regulations established and in force at the bar, or diggings, embracing such claims, and such customs, usages, or regulations, when not in con- Hi et with the constitution and laws of this State, shall govern the decision of the action." " The principle contained in the fifty-two words above C|Uoted was adopted in other mining regions of the coun- try, and finally by the Congress of the United States. The author of it has seen its wisdom vindicated l)y more than twenty-eight years of experience, and for it the people of the State and of Kevada should ever hold him in grateful remembrance. When they think of him only as a judge deciding upon the administration of laws framed by others, let them be reminded that in a single sentence he laid the foundation of our mining system so firmly that it has not been, and cannot be, disturbed." At the time the above legislation was had actions for mining claims, the mines being in the lands of the United States, were usually brought upon an alleged forci- ble or unlawful detainer. The rule adopted by the enact- ment in question, originally applicable only in actions be- fore local magistrates, was soon extended to actions for mining claims in all courts, and, as stated above, now pre- vails in all the mining regions of the country. Many years afterwards Mr. Field, in giving the opinion of the Supreme Court of the United States in an import- ant case before it, spoke of the usages and regulations of miners, to which this legislation gave the force of law, as follows : "The discovery of gold in California was followed, as is well known, by an immense immigration into the State, which increased its popula- tion within three or I'onr years from a few thousand to several hundred thousand. The lands in which the precious metals were found belonged to tile United States, and were unsurveyed, and not open, by law, to occnpatiou and settlement. Little was known of them fiirtlier than that they were situated in the Sierra Nevada Mountains. Into these moun- tains the emigrants in vast numbers jienetrated, occupying the ravines, gulches, and canons, and probing the earth in all directions for the precious metals. Wherever they went they carried with them that love of order and system and of fair dealing which are the prominent charac- teristics of our people. In every district which they occupied they framed certain rules for their government, by which the extent of ground they coukl severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and char- acter of the mines, distinct provisions being made for different kinds of mining, such as placer mining, (quartz mining, and mining in drifts or tunnels. They all recognized discovery followed by appropriation as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privi- lege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as re- spects mining, upon the public lands in the State. The tirst appropriator was everywhere held to have, within certain well-detined limits, a better riglit than others to the claims taken up ; and in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines coirld not be worked with- out water. Without water the gold would remain forever buried in the earth or rock. To carry water to mining localities, when they were not on the banks of a stream or lake, became, therefore, an important and necessary business in carrying on raining. Here, also, the first appro- priator of water to be conveyed to such localities for mining or other beneficial purposes, Avas recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the condition of miners in the mountains. The waters of rivers and lakes were consequently carried great distances in ditches and flumes, constructed with vast labor and enormous expendi- tures of money, along the sides of mountains and through canons and raviiK-s to supplv ((.mnuuiitics cii-iMjicd in milling-, as well as I'or a-rriful- turisls and ordinary consunii.tion. Xunurous n <;iilations were adopted, or assunud to exist iVoui llirir ol.vious Justness, lor tlu^ seenrity of these ditclics and liuines, and the protect ion of li-lits to water, not only l)c- Iwccn difr.Tent approjniatois, but l)ct\vren tiicni and the liohiers of mining ehiiins. These ri'iiuhilions and eustoius wvw appeah'd to in eon- ti-oversies in tlie State courts, and received their sanction ; and properties to the vahie of many millions rested ni»(m them. For eighteen years, from 1S48 to 1866, the regulations ami 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 pnl)lic mineral lands. Until 1866 no legislation was had looking to a sale of the mineral lands. The policy of the country had previously been, as shown by the legislation of Congress, to exempt such lands from sale. In that year tlie act, the ninth section of which we have quoted, was passed.* In the tirst section it declared that the mineral lands of the United States were free and open to exploration and occupation by citizens of the United States, and those who had declared their intention to become citizens, subject to such regulations as might be prescribed by law and the local customs or rules of miners in the several mining dis- tricts, so far as the same were not in conflict with the laws of the United States. In other sections it provided for acquiring the title of the United States to claims in veins or lodes of quartz bearing gold, silver, cinnabar, or copper, the possessory right to which had been previously acquired under the customs and rules of miners. In no provision of the act was any intention manifested to interfere with the possessory rights pre- viously acquired, or which might be afterwards acquired ; the intention expressed was to secure them by a patent from the government. The Senator of Nevada,t the author of the act, in advocating its passage in the Senate, spoke in high praise of the regulations and customs of miners, and portrayed in glowing language the wonderful results that had fol- lowed tlie system of free mining which had prevailed with the tacit consent of the government. The Legislature of California, he said, had wisely declared that the rules and regulations of miners should be re- ceived in evidence in all controversies respecting mining claims, and when not in conflict with the constitution or laws of the State or of the United States, should govern their determination ; and a series of wise judicial decisions had moulded these regulations and customs into 'a comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining pur- poses.' The miner's law, he added, was a part of the miner's nature. He had made it, and he trusted it and obeyed it. He had given the honest * The act of July 26, 1866, " granting the right of way to ditch and canal owners over the public lands, and for other purposes." — (14 U. ,S. Statutes, 251.) t Hon. Wm. M. Stewart. toil of his life to discover wealth, which, when found, was protected by- no higher law than that enacted by himself under the implied sanction of a just and generous government. And the act proposed continued the system of free mining, holding the mineral lands open to exjiloration and occupation subject to legislation by Congress and to local rules. It merely recognized the obligation of the government to respect private rights which had grown up under its tacit consent and aijproval. It pro- posed no new system, but sanctioned, regulated, and confirmed a system already established, to which the people were attached." — ( Jennison vs. Kirk, 98 U. S. Eep., 457.) JUDGE FIELD AS A LEGLSLATOR. The Legislation secured by him for the Exeiufption from Forced Sale for Debts of the Tools ami other Personal Property of the Debtor. From the Sail Jnsp DAILY Herald of November 21, 1879. " 'L-cifit Wednesday we gave a portion of Judge Field's record as a legislator in this State, showing that his ser- vices have heen of great value and that he is one of the most thorough statesmen claimed by this coast. We re- ferred particularly to the mining law, and we now call attention to another most beneficial law of which Judge Field was the author. We refer to the law exempting from sale for debt (other than the purchase money, or to satisfy a mortgage thereon) certain property. The law reads as follows : " The following property shall be exempt from execu- tion, except as herein otherwise specially provided : " 1. Chairs, tables, desks, and books, to the value of one hundred dollars, belonging to the judgment debtor ; " 2. Necessary household, table, and kitchen furniture, belonging to the judgment debtor, including stove, stove- 9 pipe, and stove furniture, \vearin<>: apparel, beds, beddino:, and bedsteads, and })rovisi()ns actually provided for indi- vidual or family use suifieient for one month ; •• -■'). The farming utensils, or implements of husbandry, o\' the judgment debtor ; also two oxen, or two horses, or two mules, and their harness, and one cart or wagon, and food for such oxen, horses, or nudes for one month ; '• 4, The tools and implements of a mechanic necessary to carry on his trade, the instruments and chests of a sur- geon, physician, surveyor, and dentist necessary to the ex- ercise of their professions, witli their profes.sional librar}^, and the law libraries of an attorney or counsellor ; '' •'). The tent and i'urniture, including a talde, camp stools, bed and bedding, of a miner ; also his i-ocker, sliovels, spades, wheelbarrows, pumps, and other instru- ments used in mining, with provisions necessary for his support for one month ; " 6. Two oxen, or two horses, or two mules, and their harness, and one cart or ^vagon, by the use of which a cartman, teamster, or other laborer habitually earns his living ; and food for such oxen, horses, or mules for one month ; and a horse, harness, and vehicle used by a phy- sician or surgeon in making his professional visits ; " 7. All arms and accoutrements required by law to be kept by any person. But no article mentioned in this section shall be exempt from an execution issued on a judgment recovered for its price, or upon a mortgage there(»n/' * " This was far in advance of any similar provision in other States, and was a bold and novel proposition. Thou- sands have enjoyed its benefits without being aware that its author was Stephen J. Field, The wisdom of it is manifest when we consider that it merely preserves to the unfortunate debtor the instrumentalities for future etibrt. A rapacious creditor might feel entitled to "the uttermost fartliing'' in the possession of the num indebted to him, * These provisions are contained in section 219 of the act of 1851, regulating proceedings in civil cases, which is one of the many original sections in that act drawn by .Judge Field. Until this legislation there was no exemption at all of personal property in California ; and no exemp- tion equally extensive is found in the previous legislation of any State of the Union. 10 But this law interposes and says to the debtor : " You shall have the right to reserve a hundred dollars' worth of property, your necessary houseliold furniture, wearhig a[)- parel, and a month's provisions ; and then besides this, if you are a fanner, you shall he allowed to retain all your farniing implements, and als(j a wagon and a pair of ani- mals, with one month's food for them. This will enahk; you to go to work and repair your fortunes. The law will not see you disabled." To tlie mechanic and miner this humane law says : " J3e of good cheer. You shall keep the tools with which you ply your calling. These shall l)e regarded as a part of }'our own physical system ; as well might your hands be cut oh" as your tools taken from them." To the workingman using a cart and horse, as so many laborers do, this law, which has stood for twenty- eight years on our statute b()ok, says : "Yon nmst pay your debts, but need not sell the good horse and cart by which you are aided to feed your children. Kay,, you may keep a wagon and two horses, if you are so fortunate as to have them. These make you independent, and the sheritf shall not take them." Others were also protected. The instruments of the surgeon and surveyor, the library of the physician and the lawyer, an; statesmen aslii_a;h as that he ()ecu[)ies anioni;' jurists. His conservatisn\ has never made him the enemy of wholesome ehani!,-es, and his proii'ressiven ess has never ma;]e him the supporter of any of the isms of the times. He has hi'cn as great a student of men and of attairs as of hooks,'' JUDGE FIELD AS A LEGISLATOR. General Legislation secured by him. From the San Jose Daily Herald of Deconber 26, 1879, " We have already referred to legislation concerning mining customs and regulations, and exemptions of cer- tain pei-sona.l property from forced sale, of which Judge Field was the author. We desire to make some further reference to his brief but most lionoral)le, and we might truly say brilliant legislative career, " His service was only for a single session — -that of 1851 — and yet whilst there he left his mark permanently upon the laws of the State, He was appointed on the Judiciary Conmdttee ; and as a member of that Committee he pre- pared and reported a l)ill concerning the Courts of Justice and Judicial Officers of the State, wdiich was passed. The immense labor, difficulty, and responsibility attending the preparation of this bill will be seen, when it is stated that 12 by it the whole Judiciary System of the State was reorgan- ized, and the jurisdiction, powers, and duties of the several courts, and of all Judicial officers, were designated and de- lined. And it may be here added that the act of 1853 with the same title— which was the original act carefully revised, and introduced into the Legislature by Mr. Sam- uel B. Smith of Sutter County — was also prepared by him. " He also prepared and introduced bills to regulate pro- ceedings in civil and criminal cases. These bills were taken from the proposed codes of New York as reported by the Commissioners of that State ; but the great labor in- volved nevertheless in their preparation may be estimated from the fact, that in order to adapt them to the peculiar condition of the new State and the requirements of its constitution, as well as to his own views of what would constitute the best practice, he redrafted over three hun- dred sections, and added over one hundred new ones. Among the new sections are those to which we have al- ready referred relating to actions respecting mining claims and the admission in evidence of the customs and regula- tions of miners, and respecting exemptions from forced sale of personal property. These bills became laws and with some amendments — found necessary during a period of nearly twenty -two years, and particularly from the con- stitutional amendments of 1862 — remained on the statute book until the adoption of the recent codes, in which they are substantially embodied. " He also drew bills creating the counties of Nevada and Klamath and gave those counties their names. Many counties also sought legislation correcting or changing their boundary lines, and several bills on the subject being referred to him he reported a general l)ill, dividing the State into counties and establishing the Seats of Justice therein, which was passed. Judge Field drew the char- ters of the cities of Marysville, Nevada, and Monterey — the latter being reported as a substitute for the bill intro- duced by the member of Monterey County. The prin- 13 cipal provisions of these ehartcrs have been adopted in subsequent acts ci'cating municipal incorporations. " lie also (h'al'ted llie :u-i coiiccniing divorces Avhich was reported iVoui the Judic-iarv Coumiittee as a substitute for a bill on the same subji'ctintro(Uice(l by Mr. desse D. Can-. '' Et luis ahvays been a source of great satislaction to bini tbat he gave most earnest support to the Homestead Ex- emption Bill That bill was introduced by Mr. Gavin I). Hall, then of El Dorado, now of San Francisco, and was assailed violently as tending to obstruct the collection of debts. An effort to reduce the amount of the Homestead Exemption from $5,000 to |8,000 was stoutly and success- fully resisted by Judge Field, Judge McCorkle, and the author of the bill. " The session of 1851 was the most important in the his- tory of the State. It was the tirst one held after the ad- mission of California into the Union ; and some of the best tind)ers of the new governmental structure are of the handiwork of Judge Field. His labors there, as in every other station to which he has been called, exhibit great devotion to the public service, untiring industry, and a high sense of the responsibility of a public officer. Many bad bills were defeated through his influence and many de- fective ones amended by his suggestions. He was seldom absent from his seat ; he carefully watched all measures ; and there were few debates in which he did not participate. Such is the universal testimony of all the survivors of the legislative body of 1851, and its truth is estabhshed by the dournals of the Assembly and the papers of the time. " We are specially indebted for the materials of this ar- ticle to information derived from Judge McCorkle, Hon. Samuel A. Merritt, and Hon. Jesse I). Carr, who were members of tlie Legislature with Judge Field." In addition to the above, Judge Field Avas the author of the act concerning attorneys and counsellors-at-law, in u which he hieorporatiMl provisions reiidcrini:' it iinjiossihlc tor any judge to disbar an attorney in an arbitrary man- ner without notice of the charges against him, and giving him an opportunity to he heard upon them ; of tlie act concerning county recorders, in wliich the present system of keeping the records of conveyances was adopted ; and of the act concerning county sherifiis, in which their duties in the execution of process and in keeping prisoners were declared and defined. STEPHEN J. FIELD JUDGE OF THE SUPREME COURT OF CALIFORNIA. In 1S,')7 \h\ Field was fleeted Judii'e of the Supreme (\)urt of C^uliforuia for six years, eoiiiineiK'ing January 1st, 1858, There were two eandidates besides himself before the people for the position, and 93,000 votes were polled. Tie received a majority of 80,000 over each of his op- ponents, and 17,000 over them both together.* In September, 1857, the Chief Justice of tlie Court, Hugh L. Murray, died, and one of the associate judges was appointed to till the vacancy. This left the balance of the associate judge's term of service, which extended to the following January, unoccupied, and Mr. Field was appointed by the governor of the State — a political oppo- nent — to fill it. He accepted the appointment, and took his seat on the bench October l:Uh, 1857. He held the office of associate judge until the resignation of Chief Justice Terry in Septendier, 1859, when he l)ecanie Chief Justice. * The exact vote Avns as follows : For S.J. Field 55,216 For Nathaniel Bennett 1*^,944 For J. P. Ralston 19,068 Total vote 93,228 Majority of Field over Bennett 36,272 Majority of Field over Ealston 36,148 Majority of Field over both 17.204 16 In 1808 Mr. Field wns appointed b}' President Lincoln an Associate Justice of the Supreme Court of the United States. The appointn:ient was made upon the unanimous recommendation of the congressional delegation of the Pacific C'Oast, tlien consisting of four Senators and four Members of the House, of whom five were Democrats and three Republicans ; all of them were Union men. His commission was dated Marcli 10th, 1863, but as he desired, prior to leaving the State bench, to dispose of the cases which had been argued before him, he did not take the oath of office until the 20th of Ma}^ following. He sent in his resignation to the governor to take elieet on tliat day. Judge Joseph Gr. Baldwin, who had l)een his associate on the bench for three years, hearing of the resignation, gave expression to his estimate of Mr. Field's judicial career in the following communication to the Sacramento Union, which appeared in that paper May 6th, 1863. Judge Baldwin was himself distinguished alike for his legal and literary attainments, and was warndy attaclied to his friend. JUDGE FIELD. " The resignation by Judge Field of the oifice of Chief Justice of the Supreme Court of California, to take efi'ect on the 20th instant, has been announced. By this event the State has been deprived of the ablest jurist who ever presided over her courts. Judge Field came to California from Xew York in 1849, and settled in Marysville. He immediately commenced the practice of law, and rose at once to a high position at the local bar, and upon the or- ganization of the Supreme Court soon commanded a place in the first class of the counsel practicing in t])at forum. For many years, and until his promotion to the bench, liis practice was as extensive, and probably as renumerative, as that of any lawyer in the State. He served one or two sessions in the JjCgislature, and the State is indebted to 17 liini lor very niaiiy oi" the laws whicli constitute the body of her leg-islatioii.* In 1857 he was nominated for Judg-e of the Sui)renie Court for a full term, and in October of the same year was appointed by Govenor Johnson to fill the unexpired term of Justice Heydenfeldt, resigned. He immediately entered upon the office, and has continued ever since to discharge its duties. Recently, as the reader knows, he was appointed by the unanimous request of our delegation in Congress, to a seat upon the Bench of the Supreme Court of the United States, and was confirmed, without opposition, by the Senate. "Like most men who have risen to distinction' in the United States, Judge Field commenced his career without the advantages of wealth, aiid he prosecuted it without the factitious aids of family influence or patronage. lie had the advantage, however— which served him Ijetter than wealth or family influence — of an accomplished education, and careful study and mental discipHne. He brought to the practice of his profession a mind stored with profes- sional learning, and embeUished wdth rare scholarly attain- ments. He was distinguished at the bar for his fidelity to his clients, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary solidity of judgment. As an adviser, no man had more the confidence of his clients,for he trus- ted nothing to chance or accident when certainty could be attained, and felt his way cautiously to his conclusions, wdiich, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacity. Judges soon learned to repose confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions. '' When he came to the bench, from various unavoidable causes the calendar was crowded with cases involving im- inense interests, the most important questions, and various and pecular litigation. Cahfornia was then, as now, in the * He was in the Legislature only one session. 18 development of her multiform physical resources. The judges were as much pioneers of law as the people of settle- ment. To be sure something had been done, but much had yet to be accomplished ; and something, too, had to be undone of that which had been done in the feverish and an- omalous period that had preceded. It is safe to say that, even in the experience of new countries hastily settled by hetero- geneous crowds of strangers from all countries, no such ex- ample of legal or judicial difhculties was ever before pre- sented as has been illustrated in the history of California. There was no general or common source of jurisprudence. Law was to l)e administered almost without a standard. There was the civil law, as adulterated or moditied by Mex- ican provincialisms, usages, and habitudes, for a great part of the litigation ; and tliere was the common law for another part, but lohit tJi((t iraft was to be decided from the con- flicting decisions of any number of courts in America and England, and the various and diverse considerations of policy arising from local and other facts. And then, con- tracts made elsewhere, and some of them in semi-civilized countries, had to be interpreted here. Besides all which may be added that large and important interests peculiar to this State existed — mines, ditches, etc. — for which the courts were compelled to frame the law, and make a system out of what was little better than chaos. " When, in addition, it is considered that an unprece- dented number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness ; that legislation was accom- plished in the same way, and presented the crudest and most incongruous materials for construction ; that the whole scheme and organization of the government, and the relation of the departments to each other, had to l:>e adjusted by judicial construction — it may well be con- ceived what task even the ablest jurist would take upon himself when he assumed this office. It is no small com- pliment to say that Judge Field entei'ed upon the duties 11) of this i;Te;it trust wilh his usiuil /ciil and ciicru-v, and that he kMives the olHce not only with ^-I'catly inciH'ascd repu- tation, l)nt tliat lie has raised the character of the jurispru- dence of the State, lie has more than any otlu'r man n-iven tone, consistency, and system to our Judicatui'e, and laid hroad and deep the foandation ol'our civil and criminal law. The land titles of the State — the most important and per- manent of the interests of a great commonwealth — have received from his hand their permanent protection, and this alone should entitle him to the lasting gratitude of tlie har and the people. " His opinions, whether, for tlieir learning, logic, or dic- tion, will compare favorahly, in the judgment of some of our hest lawyers, with those of any judge upon the Su- preme Bench of the Union. It is true what he has accom- ])lished has been done with lal)or ; ])ut this is so much more to his praise, for such work was not to be hastily done, and it was proper that the time spent in perfecting the work should bear some little proportion to the time it should last. We know it has been said of Judge Field that he is too much of a' case lawyer,' and not suthciently Ijroad and comprehensive in liis views. This criticism is not just. It is true he is reverent of authority, and likes to be sustained by precedent ; lait an examination of his opinions will show that, so far from being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong common sense. " He retires from office without a stain opon his ermine. Millions might have been amassed by venality. He retires as poor as when he entered — owing nothing and owning little, except the title to the respect of good men, which ma- lignant mendacity can not wrest fi'om a public officer who has deserved, by a long and useful career, the grateful ap- preciation of his fellow-citizens. We think that we may safely predict that, in his new place, Justice Field will fulfill the sanguine expectations of his friends." San Francisco, May 1, 18(18. '^- ^^- ^- 20 It will be observed that in his conimunicatioTi Judge Baldwin })laces great stress upon the action of Judge Field in the settlement of land titles. Their unsettled condition when he went on the bench was the occasion of much litigation as well as animosity between persons who other- wise would have been on amicable terms. This condi- tion arose principally from three causes: 1st, the immense extent and indefinite boundaries of grants from the former Mexican government ; 2d, the occupation by settlers of lands of the United States in advance of measures by the government for their sale; and 3d, the claim of California to own the gold and silver found in all lands in the State. The following is a brief statement as to these causes of disturbance and their disposition : 1st. As to the Mexican f/nnits : " Wlien Cahfornia was acquired, the population was small and widely scattered. To encourage colonization, grants of land in large quantities, varying from one to eleven leagues, had been made to settlers by the Mexican government. Only small tracts were subjected to cultiva- tion. The greater part of the land was used for grazing cattle, which were kept in immense herds. The grants were sometimes of tracts with defined boundaries, and sometimes of places by name, but more frequently of specified quantities lying within boundaries embracing a greater amount. By the Mexican law, it was incumbent upon the magistrates of the vicinage to put the grantees in possession of the land granted* to them ; and for that purpose to measure off and segregate the quantity desig- nated. Owing to the sparseness of the population there was little danger of disputes as to boundaries, and this seg- regation in the majority of cases had been neglected be- fore our acquisition of the country. From the size of the grants and the want of definite boundaries, arose nearly all the difficulties and complaints of the early settlers. Upon the discovery of gold, immigrants from all parts of 21 the \V(irl(l i-usIumI into tlie country, increasing the popula- tion in one or two years from a few thousand to several liundivd thousand. A lai'i^-e iiuiid)er crossed the plains froni thi' Western States, and many of them sought for farming lands upon whirh to settle. To them a grant of land leagues in extent seemed a monstrous wi'ong to which they could not he reconciled. The vagui-ness, also, in manv instances, of the houndaries of the land claimed ga\e force and a[)i)arent reason to their ohjet-tions. They accordingly settled upon what they found unenclosed or uncultivated, without much regard to the claims of the Mexican grantees. If the land upon which they thus set- tled was within the tracts foi-merly occupied hy the grant- ees with their herds, they denied the validity of grants so large in extent. Tf the houndaries designated enclosed a greater amount than that specitied in the grants, they un- dertook to locate the supposed surplus. Thus, if a grant were of three leagues within boundaries endjracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus ; forgetting that other immigrants miglit do the same thing, each claiming that wdiat he had taken was a portion of such surplus, until the grantee was deprived of his entire property. " AVhen the Supreuie Court of California was brought to consider the questions to wdiich this condition of things gave rise, it assumed at the outset that the obligations of the treaty with Mexico were to be respected and enforced. This treaty had stipulated for the protection of all rights of property of the citizens of the ceded country; and that stipulation endiraced inchoate and equitable rights, as well as those wdiich w^ere perfect. It was not for that Court to question the wisdom or policy of Mexico in mak- ing grants of such large portions of lier domain, or of the Uiiited States in stipulating for their protection. As Judge Grier said in his opinion in the case of The United States vs. Sutherland, in the llHh of Howard, the rhetoric whicli denounced the grants as enormous monopolies and priiicedouis luiii-lit liave a jii.st influence when urged to those who had a right to give or refuse; but as the United States had bound themselves bj a treaty to acknowledge and protect all hmia-Jide titles granted by the previous gov- ernment, the court had no discretion to enlarge or contract such grants to suit its own sense of propriety or to defeat just claims, however extensive, by stringent technical rules of construction to whicli tliey were not originally subjected." * ■'■" In the Fossatt case this obligation of oui" government to protect the rights of Mexican grantees in California is stated in brilliant and power- ful language by Judge Black. Referring to the land claimed by one Justo Larios, a Mexican grantee, he said : " The land we are claiming never belonged to this government. It was private property under a grant made long before our war with Mexico. When the treaty of Gua- dalupe Hidalgo came to be ratified — at the very moment when Mexico was feeling the sorest pressure that could be applied to her by the force of our armies and the diplomacy of our statesmen — she utterly refused to cede her public property in California unless upon the express condition that all private titles should be faithfully protected. We made the prom- ise. The gentleman sits on this bench (Judge Cliftbrd) who was then our Minister there. With his own right hand he pledged the sacred honor of this nation that the United States would stand over the grant- ees of Mexico and keep them safe in the enjoyment of their property. The pledge was not only that the government itself would abstain from all disturbance of them, but that every blow aimed at their rights, come from what quarter it might, should be caught upon the broad shield of our blessed Constitution and our equal laws. It was by this assurance thus solemnly given that we won the reluctant consent of Mexico to part with California. It gave us a domain of more than imperial grandeur. Besides the vast extent of that country, it has natural advantages such as no other can boast. Its valleys teem with unbounded fertility, and its mountains are filled with inexhaustible treasures of mineral wealth. The navigable rivers run hundreds of miles into the interior, and the coast is indented with the most capacious harbors in the world. The climate is more healthful than any other on the globe : men can labor longer with less thtigue. The vegetation is more vigorous and the products more abundant ; the face of the earth is more varied, and the sky bends over it with a lovelier blue. That was what we gained by the promise to protect men in the situation of Justo Larios, their children, their alienees, and others claiming through them. It is impossible that in this nation i\\ey will ever be plundered in the face of such a pledge."— (2 Wallace, 703.) 2^1 '• Actiiiii- oil tlic [•i-iiiciplc (li:it fidi'Iity to a natioirs pIcMlu-o is a sacred diilv, and tliat Justice is tlic lii^licst in- terest of tiie country, J udge 1^'ii'ld eiuleaxored, \\lieiu'\el' the occasion [.i-esented itself, and his associates co-operated with him, to protect the Mexican <;-i'anlees. Their li'rants contained a stipulation lor the possession of tlie lands ii-ranted, inasmuch as they were suhjeet to the condi- tions of cultivation and oeeupaiicy, and a faihire to com- ply witli the conditions was considered hy the trihiinals of the United States as a most material circumstance in tlie determination of tlie riii'ht of the grantees to a (u)nfiriua- tion of tlieii- claims. He held, therefore, with the concur- rence of his associates, that the grantees, wliether they were to he considered as liaving a legal or an equitahle right to the lands, were entitled to their possession until the action of the government ujxni their claims, and, there- fore, that the}' c()uld recover in ejectment."' If the grant w^as a mere float, or of a quantity to l»e selected within vague undefinahle boundaries like mountains, as in the case of the Mariposa grant, no line on such mountains, from their base to their summit, being designated, he held that the grantee was to be confined in his recovery to the tract actually used and occupied hy him, until the government intervened and determined that the quantity granted to him should l)e elsewdiere located. But if the grant was not a mere float, but was of land within clearly defined boundaries, wdiich embraced a greater quantity tlian that specified in it, with a provision that the surplus should be measured of by the government, he held that until such measurement the grantee was a tenant in common with the government and could hold the wdiole as against mere intruders and trespassers. As he said in one of his opinions, speaking for the court, until such measure- ment no individual could complain, much less could he be permitted to determine in advance, that any particu- lar locality would tall w-ithin the supposed surplus, and thereby justify its forcible seizure and detention by him- 24 self. " If one person could in this way appropriate a par- ticular parcel to himself, all persons could do so ; and thus the grantee, who is the donee of the government, would l»e stripped of its bounty for the benetit of those who were not in its contemplation and were never in- tended to be the recipients of its favors." * These views have since met with general assent in California and have been approved by the Supreme Court of the United States.! But at that time they gave otience to a large class, and the judges were accused of acting in the interest of monopolists and land-grabbers, when in fact they wei-e only extending to the grantees the protec- tion which our treaty with Mexico stipulated. 2^/. As to the occap/itioi}. bij settlers of l/imls of tJir United St /tcs' In adcance of measures by the f/ocern merit fir t/ieir sale. '' The position of a large portion of the people of Cali- fornia, previous to 1860, with respect to the public lands, was unprecedented. The discovery of gold had brought, as stated, an immense immigration to the country. The slopes of the Sierra Xevada were traversed by many of the immigrants in search of the [irecious metals, and by others the tillable land was occupied for agricultural pur- poses. The title was in the United States, and until 1853 there had been no legislation authorizing a settlement upon any of the public lands, and for some years after- wards the public surveys were extended over only a por- tion of them. Conflicting possessory claims naturally arose, and the question was presented as to the law ap- plicable to them. The Legislature in 1851 had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, wdien not in conflict * Cornwall vs. Culver, 16 Cal., 429, and Mahoney vs. Van Winkle, 21 Id., 576-580. + Van Reynegau vs. Bolton, 95 U. S.. 33. 25 with tilt' coiistitiitioii :iu(l laws of tlio stato, slionlrl o;ov- rrii tlu'ir (Iccisioiu and tlir ]»riiici|>lc thus apin'oved was soon aiiiiTuMl ill ac'tioiis for iiiiniiiii: claiiiis in all courts, 111 those cases it was considered that the first possessor or aiipropnator of the claim had tlu' hetter riii'ht as a<;'aiiist all parties exce[>t tlu' u-o\'c'niiiient , and that he, and per- sons claiiiiiiiL!,- under him, were eiitilled to protection. This principle received the entire concurrence of the court, and was a[)[)lie(l, in its fullest extent, for the protection of all possessory rights on tlie puldic lands. Thus, in Coryell vs, Cain, Judge Fiehl said, sp.'aking for the court : "It is umlontitedl}' true, as a general rule, tliat the clainiant in eject- ment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sulticient answer to his action to show title out of him and in a third i)arty. But this general rule has, in this State, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been to a certain extent qualified and limited. The larger portion of the mining lands within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. Actions for the posses- sion of mining claims, water privileges, and the like, situated upon the public lauds, are matters of daily occurrence, and if the proof of the para- mount title of the government would operate to defeat them, confusion and ruin would be the result. In determining controversies between parties thus situated, this court proceeds upon the presumption of a grant from the government to the first appropriator of mines, water privileges, and the like. This presumption, which would have no place for consideration as against the assertion of the rights of the superior pro- prietor, is held absolute in all those controversies. And with the public lands which are not mineral lands, the title, as l)etween citizens of the State, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him, " — (16 Cal., p. 572.) The doctrine thus laid down was of incalculahle heneiit to all occupants of the puhlic lands of the United States in advance of measures by the government for their sale. It preserved peace among them, and gave them assurance that they would he protected in their possessions until the general government should interfere and assert its superior title. 26 od. As to fJic chdiK of CdJifondit to otini the f/old rld. In fact, the land would be to him poor and valueless just in proportion to the actual richness and abundance of its products. " The Court was, therefore, eompeUed to put some hmi- tation upon the enjoyment by the citizen of this asserted risrht of the State, Accordingly, within two years after- wards, it held that although the State was the owner of the gold and silver found in the lands o^ private indi- viduals as well as in the public lands, " yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to," — (Stoakes vs. Barrett, 5 Cah. oO.) " The spirit to invade other people's lands, to which the original decision gave increased force, could not, however, be as easily repressed as it was raised in the crowd of ad- venturers who filled the mining regions. And when Judge 28 Field went on the l)onch, in 1857, the right to dig for the precious metals on the hinds of private individuals, under an assumed license of the State, was still asserted." But after- wards, in the case of Biddle Boggs vs. The Merced Mining Company* the whole suhject was ehihorately examined, and the doctrine repudiated. Judge Field wrote the ojiin- ion of the Court, which attracted much attention. The fallaciousness of the reasoning upon which the doctrine rested was so clearly shown, that the doctrine has never been reasserted since. " At a later day the court took up the doctrine, that the precious metals belonged to the State by virtue of her sovereignty, and exploded it. The question arose in Moore vs. Smaw, and Fremont vs. Flower, which were heard together.f In disposing of it, -Judge Field, speak- ing for the court, used the following language respecting the sovereignty of the State : " It is undoubtedly true that the Uuited States held certain rights of sovereignty over the territory which is now embraced within the limits of California, only in trust for the future State, and that such rights at once vested in the new State upon her admission into the Union. But the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than tliat of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent State or Nation. What- ever rights are essential to the existence of this authority are rights of sovereignty. Thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights es- sential to the existence of supreme political authority. In this country, this authority is vested in the people, and is exercised through the joint action of their federal and State governments. To the federal govern- ment is delegated the exercise of certain rights or powers of sovereignty ; and with respect to sovereignty, rights and powers are synonymous terms ; and the exercise of all other rights of sovereignty, except as ex- pressly prohibited, is reserved to the people of the respective States, or vested by them in their local governments. When we say, therefore, that a State of the Union is sovereign, we only mean that she possesses su- preme political authority, except as to those matters over which such au- * 14 Cal. Rep., 373-380. 1 17 Cal. Rep , 200. 29 tlioriiv isdclc.uatctl (o tlie leiler.xl goviTniiicnt, or prohihifcd to tlio States; in otlu r words, tliat she possesses all tlic rij^hts and powers essential to the (>xistenee of an inih'penrtent political orj^anization, except as they are witlulrawn by the provisions of the Constitution of the United States. To the existence of this political authority of the State— this qualified sovereignty, or any i)art of it— the ownership of the minerals of <:;old and silver found within her limits is in no way essential. The minerals do not differ from the f^reat mass of iiroperty, the ownership of which maybe in the United States, or in individuals, without aflCecting in any respect the political jurisdiction of the State. They may be aniuired by the State, as any other property may be, but when thus aecjuired she will liold tliem in the same manner that individual i)roi)rietors hold their proi)erty, and by the same right : by the right of ownership, and not l)y any right of sovereignty." " The court also held that, although under the Mexican law the gold find silver found in land did not pass with a grant of the land, a diflerent result followed, under the common law, when a conveyance of land was made by an individual or by the government. By such a conveyance, without a special reservation, everything passed in any way con- nected with the land, forming a portion of its soil or fixed to its surface, " The doctrine of the right of the State by virtue of her sovereignty to the mines of gold and silver within her limits perished with this decision. It was never afterwards seriously asserted." * * The opinions of the court in the cases cited above— that of Biddle- vs. Merced Mining Company, and that of Fremont vs. Flower — were the subject of an article in the American Law Register of June, 1862, by Mr. Emory Washburn, Professor of Law in Harvard University. As the two cases grew out of the Mariposa grant, the Professor treated them as substantially one case, and concluded his article in the following language : " It would be pleasant, if this article had not l)ecome so extended, to dwell for a moment upon the reflections that are at once awakened, as one contemplates the various phases of this celebrated case, upon the silent yet resistless majesty of the law, so long as its robes of office are worn by men of learning, uprightness, and unsuspected moral courage, acting within their sphere. Here has been a controversy involving, it is said, millions in value, as well as many considerations of great hardship, exciting not a little local as well as personal feeling and animosity. It has been passed upon by three men, personally without power, the organs and officers of the law, and there the contest ends, for the law has spoken, and we are. after all, a law-abiding people." 80 Patents for Land by the United States. Patents for land by the United States, particnlarly those issued upon a contirmation of grants in Cahfornia of the former Mexican government, were the suhjeet of repeated consideration by the Supreme Court of the State while Judge Field w^as on its Ijench. In many opinions written by him, the operation of such patents was elaborately and exhaustively treated, and the law l)y which they were to be construed, their efl'ect in giving quiet and security to the patentees in the possession of their lands, tlie extent to which they are conclusive against attacks at law, and the circumstances under which they can be assailed in equity, were stated with a clearness and precision, which left noth- ing in doubt and closed the door to much vexatious and harassing litigation touching the ownership of tlie lands covered by them. The doctrines advanced by him have never been successfully controverted, and they have been approved by the Supreme Court of the United States.* Municipal Corporations. Municipal corporations, their powers, rights, and o])liga- tions,w^ere also the subject of consideration in numerous opinions of the Supreme Court of California written by Judge Field. Judge Dillon, in his recent work on Muni- cipal Corporations, speaks of these opinions in terms of the highest praise, makes frequent citations from them, and recognizes the fact that the views contained in them have been concurred in very generally by the courts of other States. In a series of adjudications in \^■hat are known in CnV}- fornia as tlie " City Slip Cases," wliere property of the city of * Moore vs. Wilkinson, 13 Cal., 478; Biddle Boggs vs. Merced Mining Co., 14 Id., 361-366 ; Stark vs. Barrett, 15 Id., 362 ; Mott vs. Sniitli, 16 Id., 534 ; Teschemacker vs. Thompson, 18 Id., 20 ; Leese vs. Clark, Id., 565 ; Same case a second time before the court in 20 Cal., 411 ; Estrada vs. Murphy, 19 Id., 268. See also Beard vs. Federy, 3d Wallace, 478. 81 San Fi-ancisco was sold uiHlcra void ordinanco and tlio pro- ceeds a{)i»r<)i»riatcd loi- nuinicipal purposes, it was held, that no title pa-^sed.and liiai under the rliai'ter of tlireity (which recpiircd sales oi' its pro[)erty to l»e made, by an ordinance adopted for that purpose, atter advertisement of the time and place and terms of sale) the appropriation of tlie pro- ceeds did not operate to ratify the sales, while at the same time it imposed U}»on the city the hability to pay hack the. money to the purchasers. It woukl seem plain that if the mere appropriation of the proceeds obtained under a void ordinance could li'ive vahdity to a sale of the city's prop- erty, the restraints imposed by the legislature upon the action of the city would he easily defeated. Referring to the principles stated in these decisions, Judge Dillon says that they " are vindicated with characteristic clearness and striking logical force, in able and interesting opinions of Mr. Chief Justice Field." * Among other ol)jections against a recovery of the money paid by the purchasers upon the void sale, it was urged, that the common council of the city w^as forbidden hy its charter to create or permit to he created any debt or liabilities, which in the aggregate, with all former debts or liabilities, should exceed $50,000 over and above its annual revenue, unless specially authorized 1)y an ordi- nance providing the ways and means for the payment of the annual interest and of the principal, and such ordinance were approved b}' a vote of the peo|)le. To this objection Judge Field, in speaking for tlie court, thus replied : " We are clear that the provision refers only to the acts or contracts of the city, and not to liabilities Avhich the law may cast upon her. It was intended to restrain extravagant expenditures of the public moneys ; not to justify the detention of the property of her citizens which she may have unlawfully obtained. The plaintiff claims that the city has got his money without any consideration — by mistake — and has appro- * McCracken vs. The City of San Francisco, 16 Cal., 591 ; Grogan vs. San Francisco, 18 Id., 607 ; Pimental vs. San Francisco, 21 Id., .359. See also Argenti vs. City of San Francisco, 16 Cal., 282, and Zottman vs. San Francisco. 20 Cal.. 96. 82 priated it to municipal purposes, and he insists that she is responsible to hiiu for it, because the law — not her contract or permission — renders her liable. Her liability, in this respect, is independent of the restraining clauses of the charter; it arises from the obligation to do justice — to re- store what belongs to others — which rests upon all persons, whether nat- ural or artificial. And it ma}* well be doubted whether it would be com- petent for the legislature to exempt the city, any more than private indi- viduals, from liability under circumstances of this character. Suppose, for example, that the city should recover judgment against an individual for $100,000, and collect the money upon execution, and upon appeal the judgment should be reversed; would it be pretended that the money could not afterwards be recovered? Could the city defend against the claim for restitution upon the pretence that she was already indebted over $50,000? Could she, to use the language of counsel, owe herself out of liabiliiy ? Suppose, again, an individual should pay the taxes upon his property, in ignorance that they had already been paid by his agent, could the city retain the aniount thus paid by mistake ? Could she plead her previous indebtedness as an excuse for the detention of the money to which she had no legal or equitable right? Suppose, again, the city should neglect to keep the streets in repair, and an individual should be injured in consequence — should break his leg or be otherwise crippled — could she allege her insolvency against his claim for damages? Would her pecuniary condition be an answer for the neglect of every duty, legal and moral? If this were so, she would be the most irresponsible corpo- ration on earth, and her treasury would be, in nu^ny instances, but a receptacle for others' property without possibility of restitution. The truth is, there is no such exemption from liability on her part. The same obligations to do justice rest upon her as rest upon individuals. She cannot appropriate to her own use the property of others, and screen herself from responsibility upon any pretence of excessive indebtedness. The law casts upon her the legal liability from the moral duty to make restitution. Admitting that the charter restricts her power to incur lia- bilities by her own acts, it still leaves her liable according to the general law. The restriction can, in any event, only apply to liabilities dependent for their creation upon the volition of the common council, and hence does not include liabilities arising from torts, or trespasses, or mistakes." — (McCracken vs. The City of San Francisco, 16 Cal., 631-t2.) MoRTUAdES. While Judge Field was on the bench the law of mort- gages in California was settled in conformity with the common understanding of men. Opinions of the court, written by him, made that the rule of law which was be- fore the rule of equity, namely : that a mortgage is not a conveyance, but a pledge only, redeemable by compliance with the condition on which it was given. Herman, the author oi' a recent and most learned work on mortgages, expresses the opinion that '• Xo maii in this country has done as nnich in developing souinl [)rinc![)l('s in regard to mortgages — that tliey are mere hy[);)thccatii)ns — as Judge Fiekl. To his labors on the Supreme Ben"h of CaHlbrnia, and in the United States Supreme Court, have been in- debted the courts of every State where tiie doctrine is maintained ; and his California opinions are cited as lead- ing and decisive of the true principle."* Other Cases. Xumerous other cases besides those to which reference has been made, presenting a great variety of questions, some of general and public interest, and others of local concern, were before the court whilst Judge Field was on the bench, in which he gave the opinion of the court. It would extend this sketch beyond the design of the writer to give even a syllabus of the cases. They related to the claim of the State to iive hundred thousand acres of land donated by the 8th section of the Act of Congress of Sept. 4tli, 1841, for purposes of internal improvement, and to its right to dispose of the lands in advance of the pubhc surveys ; — to contracts of the State for the support and labor of its convicts ; — to the power of the courts to compel by mandamus otlicers of the State to do their duty ; — to the coniiicting rights of miners to the use of the water of streams in the mountains for the purpose of mining ; — to the right of the wife to a share of the com- munity property under the law of Mexico and the law of Cahfornia ;— to the title of the City of San Francisco to lands within her limits as successor of a former Mexican Pueblo and under the grant of beach and water lots bv the * McMillau vs. Richards, 9 Cal., 365 ; Xagle vs. :sraoy, 9 Id., i26 : John- son vs. Sherman, lo Id., :i87 ; (Toodenow vs. Ewer. 16 Id., 461. :i4 State ill 1851 ; — to tlie construction of wills ; — to the dis- tinction between mortgages and deeds of trust ; and to a great number of other subjects. A citation is given in the note of several of these cases.* Two cases not included among these deserve special notice; — in one of which — Ex-pa rte Newman, (9 Cal.,502,) relating to a law making Sunday a clay of rest — Judge Field wrote a dissenting opinion; and in the other^Prrriy vs. Washburn, (20 Gal., 318,) asserting the non-receiva- bility of legal-tender notes for State taxes — he wrote the opinion of the court. A Sunday Law, or a Law for a Day of Rest. In Ex-parte Xewinan the question arose as to the validity of a law of California, which provided that no person should keep open on Sunday " any store, warehouse, me- clianic shop, workshop, l)anking-li()use, manufacturing estabhshment, or otlier business house, for business pur- poses ;" or " sell or expose for sale any goods, wares, or merchandise" on that day ; and that a violation of these provisions should be deemed a misdemeanor for which a penalty was prescribed. The law excepted from its opera- tion the keepers of hotels, inns, taverns, restaurants, board- ing liouses, and livery stables, and the retailers of drugs and medicines, and certain articles of fresh food and ar- ticles required in cases of necessity or charity. Xor did the law apply to such manufacturing or other business establishments as were necessarily required to be kept in continual operation to accomplish their Inisiness. * Butte Canal and Ditch Co. vs. Vaughan, 11 Cal., 153 ; Baker vs. Baker, 13 Id., 87 ; Pierce vs. Robinson, 13 Id., 116 ; Blanding vs. Burr, 13 Id., 343 ; Scott vs. Ward, 13 Id., 458 ; Koch vs. Briggs, 14 Id., 256; Noe vs. Card, 14 Id., 577 ; Pixley vs. Huggins, 15 Id., 128; Norris vs. Harris, 15 Id., 226 ; State of California vs.McCauley, 15 Id., 429; Holliday vs. Frisbie, 15 Id., 630; McCauley vs. Brooks, 16 Id., 12; Koppikus vs. State Capital Com- missioners, 16 Id., 249 ; Brumagim vs. Tillinghast, 16 Id., 267; Doll vs. Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. 85 This law the iiiajoritv of the court decided to ])e in con- flict witli the chiuse of tlie eoiistiliitioii which ih'clared that •• the free exercise and enjoynient o!' rcH^ious [>ro- fession and worship, without disiTimination or profefence," shoukl forever l)e allowed in the State, holding- that in enforcinij: cessation from Lihoi- on a day held sacred hy a religious sect was a disi-riniination in favoi- of that sect. The court also decided that the Legislature hatl no right to forl)id the pursuit of a lawful occupation on one day of a week, any more than it liad a right to forbid it altogether, under the clause of the constitution declaring that all men have the inalienahle right of " ac(|uiring, possessing, and protecting property." From this decision Judge Field dissented, holding that the law only prescribed a day of rest from certain occu- pations as a rule of civil conduct, and had nothing to do with religious profession or worship, to which it did not allude in any of its provisions. And he thus vindicated its wisdom : "la its enactment the Legislature lias given the sanction of hiw to a rule of conduct wliich the entire civilized world recognizes as essential to the physical and. moral well-being of society. Upon no subject is there such a concurrence of opinion among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience and sus- tained by science. There is no nation, possessing any degree of civiliza- tion, where the rule is not observed, either from the sanctions of the law or the sanctions of religion. This fact has not escaped the observation of men of science, and distinguished philosophers have not hesitated to pronounce the rule founded upon a law of our race. " The Legislature possesses the undoubted right to pass laws fen- the preservation of health and the promotion of good morals, and if it is of opinion that periodical cessation from labor will tend to both, and thinks proper to carry its opinion into a statutory enactment on the subject, there is no power, outside of its constituents, which can sit in judgment upon its action. It is not for the judiciary to assume a wisdom which it denies to the Legislature, and exercise a supervision over the discretion of the latter. It is not the province of the judiciary to jiass upon the wisdom and policy of legislation ; and when it does so, it usurps a p(nver never conferred by the constitution. " It is no answer to the requirements of the statute to say that mankind will seek cessation from labor by the natural influences of self-preserva- '3(> tion. The position ussimies that all men are independent, and at liberty to work wlienever they choose. Wliether this be true or not in theory, it is false in fact ; it is contradicted by every day's experience. The rela- tions of superior and subordinate, master and servant, principal and clerk, always have and always will exist. Labor is in a great degree depend- ent upon capital, and unless the exercise of the power which capital affords is restrained, those who are oldiged to labor will not possess the freedom for rest which they would otherwise exercise. The law steps in to restrain the power of capital. Its object is not to protect those who can rest at their pleasure, but to afford rest to those who need it. and who, from the conditions of society, could not otherwise obtain it. Its aim is to prevent the physical and moral debility which springs from nniji- terrupted labor ; and in this aspect it is a beneficent and merciful law. It gives one day to the poor and dependent ; from the enjoyment of which no capital or povVer is permitted to deprive them. It is theirs for repose, for social intercourse, for moral culture, and, if they choose, for divine worship. Authority for the enactment I find in the great object of all government, Avhicli is protection. Labor is a necessity imposed by the condition of our race, and to protect labor is the highest office of our laws." Indeed, every one c;in see that the only cliance for rest to the over-worked laboring chisses in (nir factories and worksliops, and in the heated rooms of our cities, is in a htvv compelling cessation from secular pursuits at regular intervals. AVithout it there would be for tliem only cease- less toil. To them, therefore, such a law is a great bless- ing. It enables them, one day in a week, to be with their families ; to seek with them the pure air of the country; to visit gardens, and places for quiet enjoyment ; to ex- change courtesies with friends and relatives, and to be free from the perpetual din of the shop, and the ever-pressing thought that only by the sweat of their l)row they can earn their daily bread. To the objection that vSunday is a day of religious observance by certain sects, Judge Field answered as follows : " The power of selection being in the Legislature, there is no valid rea- son why Sunday should not be designated as well as any other day. Prob- ably no day in the week could be taken which would not be subject to some objection. That the law operates with inconvenience to some is no argument against its constitutionality. Such inconvenience is an incident to all general laws. A civil regulation cannot be converted into a relig- ious institrution because it is enforced on a day that a particular religious 37 sect reji'anlsns sMcicd. 'PIic fact tliaf t lie civil rc.iiulat ion linds sn))])ort in the rcliiiidus oiiiiiion nl'a vast majority of llic jtcoph' of Caliloniia is no arunmcnt ajiainst its establishment. It wnnld ))c Ibrtnnate for so<'icty if all Avise civil rules obtained a ready obedience from the citizen, not merely from the recinirements of the law, bnt from conscientious or relin them, and that the mode and manner ol' acquiring, possessing, and [ii-otccting property were matters npon which laws wei'e passed ;it eveiy every session of the Legislature. " All sorts of restrictions and regulations," he added, " are placed upon the acquisition and di.sposition of property. What contracts are valid, and what are invalid, when they must be in writing, and when they can be made by parol, what is essential to transfer chattels, and what to convey realty, are matters of constant legislation. Some modes of acquisition are subject to licenses, and some are prohibited. The right to acquire property, with the nse of it, must be considered in relation to other rights. It may be regulated lor the public good, though thereby the facility of acquisition is lessened, as in the sale of gunpowder and drugs, and in the practice of different professions. To say that a prohibition of work on Sunday prevents the acquisition of property, is to beg the question. With more truth it may be said, that rest upon one day in seven better enables men to accjuire on the other six." — (9 Cal., 527.) The decision of the com't was rendered at the April term in 1858. In 1861 the Legislature passed another Sunday law sinnlar in its provisions to the one declared to be un- constitutional, and af the July term of that year the court held it to be constitutional, tlms overruling the decision in E.v-p'irfr Nciniuin. and adopting the views expressed In' Judge Field in his dissenting opinion in that case. — (18 Cal.'", 680.) The XoN-RECEivABiLiTY OF Le(;al-Teni)Er Xotes for State Taxes. Ill Perry V8. Waslil)iirn the question arose 'wliether Treasury notes of the United States were receivable for state and county taxes. The act of Congress made such notes " a legal tender in payment of all debts, private and public." The court held that Congress only intended by debts such obligations for the payment of money as are founded upon contract. Judge Field gave the opinion of the court, and in s[)caking on this point he said : " The act does not, in our judgment, have any reference to taxes levied under the laws of the State. It only speaks of taxes due to the United States, and distinguishes between them and debts. Its language is, ' for all taxes, internal duties, excises, debts, and demands of every kind due to the United States, the notes shall be receivable." When it refers to obligations other than those to the United States it only uses the term 'debts' ; the notes it declares shall be 'a legal tender in payment of all debts public and private.' Taxes are not debts within the meaning of this provision. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purjjoses. It is not founded upon contract ; it does not establish the relation of debtor and creditor between the taxpayer and State ; it does not draw interest ; it is not the subject of attachment ; and it is not liable to set-off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the in- dividual assent of the taxpayer. It operates in invifiim.^^ Independent of tlie consideration mentioned, it is evi- dent that the States can collect their taxes in such way as they may see fit — in goods as well as money, as was for- merly done in some of the States; and that this right has never been surrendered to the general government. This case is important as l)eing the first one in which the re- ceival)ility of legal -tender notes for State taxes was brought before the courts for adjudication. The Supreme Court of the United States cited the de- cision with approval and followed it in Lane County vs. Oreo-on (7 Wall, 71). STEPHEN J. FIELD JUDGE OF THE SUPREME COURT OF THE UNTIED STATES. Mr. Field was eoinniissioned as a Justice of the Supreme Court of tlie United States on the 10th of March, 1863, but he did not take the oath of ofHce until the 20th of May afterwards. In June following he was assigned by the President to the Tenth Circuit, then consisting of the States of CaUfornia and Oregon.* When T^evada became a State she was included in the circuit. As a member of the Supreme Court he was required to attend the sessions of the court at Washington m the winter, and hold the Circuit Court in his circuit in the summer. He was thus compelled, until the overland railroad was completed, to travel, going by the way of the Isthmus, over twelve thou- sand miles a year, and now since the completion of the road he is obliged to travel over eight thousand miles a year. When his office was created he was allowed one thousand dollars a year for his travelling expenses, but in 1871 Con- gress repealed the law allowing this sum ; and now, notwith- standins: the immense distance he has to travel, and the * Under the 5th section of the "Act to amend the judicial system of the United States" of April 29th, 1802, (2 Stats, at Large, p. 156,) the President is authorized to allot the Justices of the Supreme Court to the circuits when a new justice is appointed in the recess of the court; such allotment to remain until a new allotment is made by the justices among themselves.— (See 2d Black's Rep., p. 7.) 40 great expenses to which he is thus subjected beyond those imposed upon his associates, he is forced to meet them out of his reguhir salai'v. He has never failed to visit his circuit any year since liis appointment, aUhough since the passage of the act of ISfJM, providing for the appoint- ment of circuit judges, lie has not been recpiired to attend a term in his circuit Init once in two years. Of the many important cases tried and disposed of l>y him there, men- tion will be made hereafter. When he went on the Supreme Bench, Taney was Chief Justice, and Wayne, Catron , Nelson ,Grier,Cliti:brd, vSwayne, Miller, and Davis were associate justices. Chief .lustice Taney died in the follov^aug year, and ]\Ir. Chase was a[)- pointed his successor. The business of the court is always greater tlian can he disposed of l)y the judges, and at every session cases involving im[)()rtant principles are de- cided. But those which have attracted the greatest atten- tion, and excited the deepest interest since 1863, have grown out of the civil war and the legislation to which it gave rise. The Milli(4an Case, " One of the earliest and most impoi'lant cases of this kind was the Milliga-)i case. In October, 18(J4, Milligan, a citizen of the United States and a resident of Indiana, was arrested by order of tlie military commander of the district and confined in a military prison near the capital of the State. He was subsequently, on the 21st of the same month, put on trial, before a military commission convened at Indianapolis, in that State, upon charges of: 1st, Conspiring against the Government of the United States ; 2d, Atibrding aid and comfort to the rebels against the authority of the Urnted States ; 3d, Inciting insur- I'ection ; 4th, Disloyal practices ; and 5th, Violation of the laws of war ; and was found guilty and sentenced to death by hanging. He was never in the military ser- vice ; there was no rebellion in Indiana ; and the civil 41 courts wvvc opoii in tluit State and in the iindislnrltod cx- c'rcis(> o1' tlu'ir jni'iscru-tioii. Hu' sentence of the military commission was aflinncd l)_y tlu; l^'esidcnt, who directed that it shonld he carried into immediate exccntion. The con- demned thi'renpon prestMited a petition to the Circnit (\)nrt of the I nited States in Imhana lor a ^vrit o'( linhniM cDi-pti.^, prayino- to he discliarii-ed from cnstody, adeuMnLi- the ille- gahty of his arrest and of the |)roceedinL':s of the mihtary commission. The jndiics of the Circnit Conrt were di- vided in opinion npon the question whether the ^vrit slioidd he issned and the petitioner diseharii-cd, whieh, of coiirse, in\'(>lved the Jurisdiction of the military commission to try him, rpon a certificate of (hvision the case was l)rought to the Supreme Court at the I)ecend)er term of IHil-'). The case was elaborately aro-ued l»y aide and (hstino-uislied counsel, consistino; of Mr, Joseph E. \[c])onald, now U, S. Senator from Indiana, Mr, James A, Garfield, a dis- tinguished mendjer of Congress, Mr, Jeremiah S, Black, the eminent jurist of Pennsjdvania, and Mr. David Dudley Field, of Xew York, for the petitioner ; and by Mr. Henry Stanbery, tlie Attorney-CTeneral, and Gen, B, F, Butler, for the goverimient, Tlieir arguments were remarkable for learning, research, abiHty, and. eloquence, and will re[tay the careful perusal not only of the student of law, l)ut of all lovers of constitutional liberty. The judgment of tlie c(HU't was for the liberty of the citizen. All the judges agreed to his discharge, but tlie opinion, which has given so much celebrity to the case, and placed the protec- tion of the citizen, in States wliere the civil courts are open, on solid grounds, obtained the approval of only five of the j udges against four of them, Jmh/e Field was one of the five ; his rote irns esuciifidi fo iiira('tiee as an attorney or eounsellor-at-law,'' nor,- after that period i-ouhl '' any person V)e eom|.)etent as a hishop, pi'iest, deaeon, minister, elder, or other clergyman, of any refigious per- suasion, sect, or denominafion, to teach, or preach, or sol- emnize marriages,'" Fine and imprisonment were prescrihed as a punishment for holding or exercising any of "the otiices, positions, trusts, professions, or functions " specified, without having taken the oath ; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary. Mr, Cummingsof Missouri, a priest of the Roman Cath- olic Church, was indicted and convicted, in one of the cir- cuit courts of that State, of the crime of teaching and preaching as a priest and minister of that religions denom- ination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be committed to jail mitil the same was paid. On appeal to the Supreme Court of the State the judgment w^as aiiirmed, and the case w^as brought on a writ of error to the Supreme Court of the United States, It was there argued with great learning and ability by distinguished counsel, consisting of Mr. ^Montgomery Blair, of Washington, Mr, David Dudley Field, of Xew York, and Mr, Heverdy Johnson, of Maryland, for Mr. Cummings ; and by Mr. G. P, Strong and Mr, John B, Henderson, of Missouri, the latter then Fnited States Senator, for the State. 44 " It was evident that the power asserted by the State of Missouri to exact this oath for past conduct from pai-ties, as a condition <»f their continuing to pursue certain pro- fessions, or to hokt certain trusts, might, if sustained, he often exercised in timi's of excitement to tlie oppression., if not ruin, of the citizen. For, if the State couhl require the oath for the acts mentioned, it might rerpiire it for any a(tts of one's past hfe, the nundjer an!' an ex post fi -In law. '\\w decision o!" the cM)ui-r, thiTt'lorc". was for tlie discliari>;e of the Cath- olic priest. The jndu-iuent against liini was reversed, and the Supreme Court o!' Missouri was directed to onUu- the inferior coui't hy wliich he was tried to set liini at hherty."' This judu-nient ohtained the concurrence of only tive judges against four of them. .JmJ-i,- F!rhl u:/.^ one of the tire : Jm rote irfia e.sifienihil to th'it /iiit'/niciit ; (t)ttl he irrote the opinion of the conii. TiiK Garlaxi) Cask. Immediately follt)wing the case of Cummings that of E.r-p:irte Garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law l>y the act of Congress of January :i4tli, IcSi!."). Mr. A. H. Garland, now Tnited States Sena- tor from Arkansas, had been a member of the bar of the Supreme Court of the United States before the civil war. When Arkansas passed her ordinance of secession and joined the (V)nfederate States, he went with her, and was one of her representatives in the Congress of the Confed- eracy. En July, 1865, he received from the President a full pardon for all otfences committed by his participation, director implied, in the rebeUion. At the following term of the court he produced his pardon, and asked permission to continue to practice as an attorney and counsellor with- out taking the oath required by the act of Congress, and the rule of the court made in conformity witli it, which he was unable to take by reason of the oiiices he had held under the Confederate Government. The application was argued by eminent counsel, con- sisting of Mr. Matthew II. Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the petitioner, Mr. Garland, and Mr. Marr, another apphcant for admis- sion, who had participated in the rebellion, tiling written aro-uments ; and by Mr. Speed, (^f Kentucky, and Mr. 4(J Henry Stanbery, tlie Attortiey-Geiieral, on tlie other side. The whole subject of expurgatory oaths was discussed, and :dl tliat could be said on either side was fully and elaborately presented. ^' Tlie court in its decision followed the reasoning of the Cumniings case and held that the law was invalid, as applied to the exercise of the petitioner's right to practice his pro- fession; that such right was not a mere indulgence, a matter of grace and favor, revocable at the pleasure of the court, or at the command of the legislature ; l)ut was a right of which the petitioner could be deprived only by the judg- ment of the court for moral or professional delinquency. The court also held that the pardon of the petitioner re- leased him from all penalties and disabilities attached to tlie otience of treason committed by his participation in the re- Ijellion, and that, so far as that otfence was concerned, he was placed beyond tlie reach of punishment of any kind. But to exclude him by reason of that ofLence — that is, by requiring him to take an oath that he had never com- mitted it — was to enforce a punishment for it notwith- standing the pardon ; and that it was not within tlie con- stitutional power of Congress thus to inflict punishment beyond the reach of executive clemency." The judgment in this case also was pronounced by live of the judges against four of them. Jialf/e Field here nefiiln WHS one of the fie e. His rote ir>/s esserttial to the judt/inent ; and. he wrote the opinion of the court * The McArdle Case. " The Reconstruction Acts, so-called — that is, '^ An act to provide for the more ethcient government of the rebel "111 the decision of the two test-oath cases — the Cumniings case and the Garland case — Justices Wayne, Nelson, Grier, Clififord, and Field con- curred. Chief Justice Chase and Justices Swayne, Miller, and Davis dis- sented. Afterwards Chief Justice Chase expressed his concurrence in the opinion of the majority ; and the decision was followed hy the whole court, with the exception of Mr. Justice Bradley, in the case of Pierce vs. Carskadon, decided at Hie December term, 1872. — (16 Wallace, 234.) 47 States; of March -Id, 18G7, and :m net of tlic :^:5(l of the same month, snp[)leinentary !•• llu' fornicr- wcri' violctitly attacked in C'onu'i'oss when hclorc it for consideration, as in\aHd jniconstitnlidnal, and arbiti'ary measures of the_i2:ov- ernmcnt ; and as soon as tlicy were [)asso(l Narions steps were taken to hrini;- tliem to tlie test ol'Jadieial examina- tion and arrest their enfoi'eement. Those actsdivideenalties for treason was passed in the exercise of the municipal power of Congress to legislate for the punishment of oliences against the sovereignty of the United States, all that portion which provided for the con- fiscation of property of rebels was passed in the exercise of the war powers of the government. The opinion of the court was delivered by Judge Strong, and received the concurrence, on this point, of all the judges present at the argument, except Judges Cliftbrd and Field. Chief Jus- tice Chase was absent from the court the whole term on account of ill-health. Judge Xelson was engaged on the 54 Joint High Coniiuissioii for the settlement, by treaty, of questions in dispute between the United States and Great Britain. Judges Chfibrd and Field dissented, Judge Field giving a dissenting opinion. They did not deny the strict legal right of the government to confiscate the private property of enemies, that is, of permanent inhabitants of the enemies' country, although by the humane policy of modern times sucli property, unless taken in the field or besieged towns, or as a military contribution, is usually exempt from confiscation; but they conteufU'd tliat tlie act in question was not directed against enemies as such, but against persons who were guilty of certain alleged often ces. After stating tlie several provisions of the act, Judge Field said as follows : " It would seem clear, theretbre. that the provisions of the act were not passed in the exercise of the war powers of the oovernnient, but in the exercise of the municipal power of the government to legislate for the punishment of offences against the United States. It is the property of persons guilty of certain acts, wherever they may reside, in loyal or dis- loyal States, which the statute directs to be seized and confiscated. It is also for acts committed after the passage of the statute, except in one particular, corrected by the joint resolution of the two houses, that the forfeiture is to be declared. If it had been the intention of the statute to confiscate the property of enemies, its prospective character would have been entirely unnecessary, for whenever jjublic war exists the right to order the confiscation of enemies' property, according to Mr. Chief Justice Marshall, exists with Congress. " That the legislation in question was directed, not against 'enemies, hut against persons who might be guilty of certain designated public offences, and that the forfeiture ordered was intended as a punishment for the offences, is made further evident by what followed the passage of the act of Congress. After the bill was sent to the President it was as- certained that he was of opinion that it was unconstitutional in some of its featui-es, and that he intended to veto it. His objections were that the restriction of the Constitution concerning forfeitures not extending beyond the life of the offender had been disregarded. To meet this objec- tion, which had been communicated to members of the House of Kepre- sentatives, where the bill originated, a joint resolution explanatory of the act Avas passed by the House and sent to the Senate. That body, being informed of the objections of the President, concurred in the joint reso- lution. It was then sent to the President and was received by him be- 55 fore the expiration of the ten clays allowed him for the consideration of the oris^iiial 1)111. lie nliirncd the bill and resolntion to;j;et.her to the House, wliere ihcy originated, with a message, in which he stated that, considerin apply to any act or acts done prior to its i)a.s.sage, ' nor .shall any i)unislimenl or proceedings under said act be so construed as to work a forfeiture oi' the real estate of the oftender beyond his natural life.' "The terms here used, ' forfeiture ' of the estate of the ' offender,' have no application to the confiscation of enemies' property uiuler the law of nations. They are, as justly observed by counsel, strictly and exclusively applicable to punishment for crime. It was to meet the constitutional re- quirement that the punishment by forfeiture should not extend beyond the life of the offender that the joint resolution was passed. The Presi- dent said to Congress, the act is penal, and does not conform to the require- ment of the Constitution in the extent of punishment which it author- izes, and I cannot, therefore, sign it. Congress accepts his interi)retation, and by its joint resolution directs a construction of the act in accordance with his views. And this construction, thus directed, is decisive, as it appears to me, of the character of the act. Indeed it is dififlcult to con- ceive of any rea.son for the limitation of the forfeiture of an estate to the life of the owner, if such forfeiture was intended to apply only to the property of public enemies.'" " The inquiry, then, arises whether proceedings in rem for the confis- cation of the property of parties charged to be guilty of certain overt acts of treason, can be maintained without their previous conviction for the alleged offences. Such proceedings, according to Mr. Chief Justice Mar- shall, may be had tor the coujected to the risk of losing the property if it be again sold or hypothecated by his vendor to an innocent third ])arty ; or if it be seized and sold by a cred- itor of his vendor for the latter's debts. The second purchaser from the vendor and the bidder at the judicial sale would in that case hold the proi)erty. The United States never stood in the position of a second pur- chaser of the property sold by the elder Conrad. They were not pur- chasers at any sale of his property. They had caused his estate in the land, whatever that was, to be seized and condemned. By the decree of condemnation that estate vested in them for the period of his life. His estate for that period was then their property. The statute declares that the property condemned ' shall become the property of the United States, and may be disposed of as the court shall decree.' It was the property of the United States, therefore, which was sold and conveyed at the mar- shal's sale. The United States acquired by the decree, for the life of the offender, only the estate which at the ^time of the seizure he actually possessed ; not what he may have appeared from the public records to possess, bj^ reason of the omission of his vendees to record the act of sale to them ; and that estate, whatever it was, for that period passed by the marshal's sale and deed ; nothing more and nothing less. The registry act was not intended to protect the United States in the exercise of their power of confiscation from the consequences of previous unrecorded sales of the alleged offender. It was in the power of Congress to provide for the confiscation of the entire property, as being within the enemy's coun- try, without limiting it to the estate remaining in the offender ; but not having done so, the court cannot enlarge the operation of the stringent provisions of the statute. The plaintiff had notice of the character and legal effect of the decree of condemnation when he purcha.sed, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure, nothing passed to the United States by the decree, or to him by his purcha.se." Cases on Pardon and Amnesty. In his great speecli on coneiHation witli America, Burke observed, what all nmst admit to be true, " that there is a 60 wide dift'erenee in reason and policy between the mode of proceeding' on the irregular conduct of scattered indi- viduals, or even of bands of men who disturb order within the State, and the civil dissensions which may, from time to time, on great questions, agitate the several connnunities which compose a great empire;" and said that it looked to him to be narrow and pedantic to apply the ordinary ideas of criminal justice to the great public contest then going on in America ; and that he did not know the method of drawing up an indictment against a whole people. This language must hove occurred to the belligerents in the late civil war. And yet the Constitution declares that " treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The people of the Con- federate States, in making war against the United States, came within the terms of this definition, however unwise and monstrous the proposition, that under it they were all exposed to criminal prosecution. The attempt to pass sentence upon them as a people w^ould, as Burke said, be a proceeding " for wise men, not judicious; for sober men, not decent; for minds tinctured with humanity, not mild and merciful." But under the legislation of Congress and of several of the States, it was of the highest moment to many of these people, that they should be relieved from the disabilities to which their participation in the rebellion subjected them ; and that could only be accomplished, whilst that legislation remained in force, by pardon or amnesty. The term amnesty is not found in the Constitu- tion, but is generally used to denote the clemency ex- tended to a whole community or to a class of persons. Pardon is the generic term and includes every species of executive clemency, individual or general, conditional or absolute. The first case after the war, in which the Supreme Court had occasion to speak of the effect and operation of a pardon, was that of Garland, who was precluded, as stated Icssioii ns [ Ill e c Olll ;-i,l )y net of Co 11- vvhv lli( )li oi- iiiLi' in (1. at HI ahove, from contimiini;" ilio in'actiee of his piv atloTiu'V and rounscllor-at-law in the Siiprci his inabiHty to hike the .)ath rcMiiiiivd l»_v \\\( UTOss, tliat he hail novel- [)aiii('i[iat(Ml in the given it aid and comfort, .lud^'e Field, spea case for the court, said : "The Constitution provides that the President ' shall have power to <;nint reprieves and xxirdons lor oftences against the United States, except in eases of impeachment.' "The power thus conlerred is unlimited, with the exception stated. It extends to every oft'ence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can nei- ther limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him (;annot be fettered by any legislative restrictions. "Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities conciir. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted be- fore conviction, it prevents any of the penalties and disabilities conse- (luent upon conviction from attaching ; if granted after conviction, it re- moves the penalties and disabilities, and restores him to all his civil rights ; it makes him, as it were, a new man, and gives him a new credit and capacity. " There is only this limitation to its operation : it does not restore of- lices forfeited, or property or interests vested in others in consequence of the conviction and judgment. "The pardon produced by the petitioner is a full pardon "for all of- fences by him committed, arising from participation, direct or implied, in the rebellion,' and is subject to certain conditions which have been complied with. The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached t6 the offence of treason, committed by his participation in the rebellion. So tar as that offence is concerned, he is thus placed beyond the reach of punishment of any kind." —(4 Wall., 380-381.) In several cases subsequently before the court, on ap- peal from the Court of Claims, which were brouc:ht for tlie recovery of the proceeds of cotton seized by officers of the United States under the captured and abandoned 62 property act of March 12tli; 1863, tlie doctrine of the Garland case was followed and applied, so as to relieve the petitioners from the necessity of showing that they had never given any aid or comfort to the rebellion, which otherwise would have been required under the act. In Paddleford's case, (9 Wall., 531,) the petitioner hav- ing taken the oath of allegiance prescribed by tlie procla- mation of President Lincohi, of December 8th, 1863, and kept it inviohite, it was held, that he was entitled to claim the proceeds of cotton subsequently seized and sold under that act. The court cited the language in the Garland case as to the effect of a pardon, that by it " in the eye of the law the otfender is as innocent as if he had never com- mitted the offence." The pardon had purged him of tlie offence when the seizure was made. In the words of the Chief Justice, who gave the opinion of the court, " tlie law made the grant of pardon a comjilete substitute for proof that he gave no aid or cc^mfort to tlie rebellion." In Klein's case, (13 Wall., 129,) subsequently before the court, an act of Congress, which undertook to do away with this efiect and operation of a pardon, was brought to its notice. That act declared that a pardon should not su- persede the necessity of proof of loyalty by its recipient, but that its acceptance, without an express disclaimer and protestation, should be conclusive evidence of his guilt of the acts pardoned, and be inoperative as evidence of the rights whicli the court had adjudged were conferred by it. The C(Hirt, to its great honor, held the act to be uncon- stitutional — an attempt t() prescribe to the judiciary the effect to be given to the previous pardon of the President. The Chief Justice, in giving its opinion, said: "It is clear that the legislature cannot change the effect of such a jiardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evi- dence of guilt and U) treat them as null and void. It is required to disregard pardons granted by proclamation on en condition, though tlu' condition has l.ccn rulllllcd, niid io deny tlicni tlicir leu-al ctlcct. This ccrtaiidv inijiairs tlic oxcrutivc anthoritv, and directs tlic conrt to hi' instru- mental t.) that end." Tn Mrs. .\rnistn.n,u-"s case, (1:5 Walh, l.')4,) wiiich was heard alter the (k'cision in Klein's case, tlie coiul declined to consider whether tlie evidence was sullicient to pi-ove tliat tlie claimant had ii-iven aid and comfort to the rid»el- lion, and held that the ])roc]amation of i»ai'don and am- nesty issued hy the President entitled her to the proi-eeds of her captured and abandoned property in tlie Treasury, without proof that slie never ai wlietlier tlic pardon and aniiK'sty i^'raiitod liy Ihe I'rt'sidi'nt's procla- niation entitled one, who had reeeived its henetits, to the proceeds of liis property prt'\ionsl_v ('on(hMnned and sold tnider the contiscation act, alter sncli proceeds had heen paid into the Treasurj-. Ami n[»on this suhjei-t. .ludij^e Field, speaking' for the court, said : " Moneys once in the Treasury can only be withdrawn by an appropri- ation by law. However large, therefore, may l)e the power of pardon l)ossessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers : it cannot touch moneys iu the Treasury of the United States, except expressly authorized J)y act of Congress. The Constitution places this restriction upon the pardoning power. " ^yhere. however, property condemned, or its proceeds, have not thus vested, but remain under control of the executive or of otHcers subject to his orders, or are in the custody of the j udicial tribunals, the property will be restored or its proceeds delivered to the original owner upon his full pardon. The property and the proceeds are not considered as so absolutely vesting in third parties or in the United States as to be unaffected by the pardon until they have passed out of the jurisdiction of the officer or tribunal. The proceeds have thus passed when paid over to the indi- vidual entitled to them, in the one case, or are covered into the Treasury, in the other."' LE(iAL-TENDER (A\SES AND CoXFEDER.VrE XOTES. Next to the questions relating to reconstruction, test-oaths, pardon, and amnesty, those relating to the notes issued hy the government to be used as a circulating medium, excited, after the war, the greatest interest. On the 25th of Feb- ruary, 1862, the President approved of an act of Congress entitled "An act to authorize the issue of United States notes, and for the redemption or funding thereof, and for fimding the floating debt of the United States," commonly known as the legal-tender act.- -(12 Stats., 345.) 5 It authorized the Secretary of the Treasniy to issue notes on the credit of the United States to the amount of one hundred and fiftj' millions, not drawing interest, payable to bearer, of such denominations as he might deem expe- dient, not less than five dollars each. And it declared that such notes should be " receivable in payment of all taxes, internal duties, excises, debts, and demands of every kind due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes," which was to be paid in coin, and be " lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on im- ports and interest as aforesaid." IS'o serious question was ever raised as to the power of the government to issue the notes as a means of borrow- ing money, or to make them payal^le to bearer, and of such denominations as would suit the convenience of the lender, or to make them receivable for dues to tlie United States. The only objection to the act was the provision making them "a legal tender in payment of all debts pub- lic and private," so far as it applied to private debts and debts owing by the United States. As Congress could only exercise such powers as were expressly delegated to it, or were necessary and proper to the execution of those powers, and as it was not expressly invested with control over the subject of legal tender, and the States were prohibited in terms from making anything but gold and silver such tender, the validity of the pro- vision, so far as it applied to private debts, was at once raised. The question was one of immediate and pressing importance, not only from the fact that the amount authorized by the act mentioned was issued, but by sub- sequent acts, containing a similar provision, the issue of a much larger amount was authorized, and in denominations as low as one dollar. These notes, not being convertible on demand into coin, soon depreciated in value in the iu iiiai'kc't, so at times diiriui;- tin- wai' llicv were til'lv cents below par, and loni;- after the war their [uireliasaljle jiower was greatly less tliau their noiiiiual amount. ITnserupu- lous debtors at once seized the occasion to discliarii-e their previous ol)liii'ations by these notes, tlius [>ayinu- tiieir (•reditors nominally the whole, hut in fact oidy a ]K)rtion, of their dues. The great corporations of the eountry, whieli had contracted a large indebtedness prior to the war, did not hesitate to offer to their creditors, these notes, Itoth for the interest and principal of their bonds. They measured their sense of justice, not by the rules of com- mon honesty, but by what the law permitted. In the case of Lane (''ounty vs. Oregon (7 Wall., 72) an attempt was made to compel the otRcials of that State to receive these notes for taxes in the face of legislation re- quiring such taxes to be paid in gold aud silver. But the Supreme Court held that taxes were not debts within the meaning of the legal-tender act, and that by the term debts were meant only such obligations for the payment of money as were founded upon contract, citing and following in this respect the opinion of Judge Field, given by him when on the bench of the Supreme Court of C^alifornia, in l^erry vs Washburn (20 Cal., 818). The Chief Justice, who spoke for the court in the case, referred to the power of taxation in the general govern- ment conferred b}' the Constitution, and to its limitations. He also mentioned the restrictions upon the States to tax exports or imports except for a single purpose, or to lay any duty on tonnage, and then added : "lu respect, however, to property, Ijusiness, uiid persons. Avittiin tlieir respective limits, their power of taxation remained and remains entire. It is, indeed, a concurrent power, and in the case of a tax on tlie same subject by both governments, the claim of the United States, as the su- preme authority, must be preferred ; but, with this qualification, it is absolute. The extent to which it shall be exercised, the subjects upon which it shall be exercised, and the mode in which it shall be exercised, are all equally within the discretion of the Legislatures, to which the States commit the exercise of the power. That discretion is restrained 68 only by the will of the people expressed in the State constitutions or through elections, and by the condition that it must not be so used as to burden or embarrass the operations of the national government.* There is nothing in the Constitution which contemplates or authorizes any di- rect abridgment of this power by national legislation. To the extent just indicated, it is as complete in the States as the like power, within the limits of the Constitution, is complete in Congress. If, therefore, the condition of any State, in the judgment of its Legislature, requires the collection of taxes in kind — that is to say, by the delivery to the proper officers of a certain i^roportion of products, or in gold and silver bullion, or in gold and silver coin — it is not easy to see upon what principle the'^ National Legislature can interfere with the exercise, to that end, of this power, original in the States, and never as yet surrendered." In Bronson vs. Rodes (7 AVall., 229) the question was raised whether a previous contract for the payment of a certain sum in gold and silver coin could be specifically en- forced, or whether it could be discharged, under the legal- tender act, by a tender of treasury notes. The court held that the contract could be specifically enforced. It is diffi- cult, at this day, to appreciate fully the earnestness of the opposition to this position. The fact that the law recog- nized two dift'erent kinds of currency, and that one only could be used for a certain class of pajanents — that is, for duties on imports — would seem to be a conclusive answer to the objections urged. As two kinds of currency were made lawful, a contract for either must be lawful also. A person might wish coin to remit abroad or to pay duties, or because it could be more safely kept at his residence, not being liable to be destroyed by fire or injured by water or other casualties. As the Chief Justice, who gave tlie opinion of the court, said : " The currency acts themselves provide for payments in coin. Duties on imports must be paid in coin, and interest on the public debt, in the absence of other express provisions, must also be paid in coin. And it hardly requires argument to prove that these positive requirements can- not be fulfilled if contracts between Individuals to pay coin dollars can be satisfied by offers to pay their nominal equivalent in note dollars. * Or, it may be added, to impose greater burdens upon the business or property in the State of non-resident, than upon the business or property of resident citizens. — (Ward vs. Maryland, 12 Wall., 418.) 6D • The merchant who is to pay duties in coin must contract for the coin which he requires ; the bank which receives the coin on deposit contracts to repay coin on demand ; the messenj^er wlio is sent to the bank or the custom-house contracts to pay or deliver the coin according to his in- structions. These are all contracts, eitiun- ex))rcss or implied, to pay coin. Is it not plain that duties cannot be jiaid in coin il' these contracts cannot be enforced ? "An instructive illustration may be derived tVom another provision of the same acts. It is e.xpressly provided that all dues to the government, except for duties on imports, may be paid in United States notes. If, then, the government, needing more coin than can be collected from du- ties, contracts with some bank or individual for the needed amount, to be paid at a certain day, can this contra(!t for coin be perlbrmed by the tender of an equal amount in note dollars? Assuredly it may if the note dollars are a legal tender to the government lor all dues except duties on imports. And yet a construction which will support such a tender will defeat a very important intent of the act. " Another illustration, not less instructive, may be found in the con- tracts of the government Avith depositors of bullion at the mint to pay them the ascertained value of their deposits in coin. These are demands against the government other than for interest ou the public de1)t ; and the letter of the acts certainly makes United States notes payable for all demands against the government except such interest. But can any such construction of the act be maintained? Can judicial sanction be given to the proposition that the government may discharge its obligation to the depositors of bullion by tendering them a number of note dollars equal to the number of gold or silver dollars which it has contracted b}'^ law to pay ? " But we need not pursue the subject further. It seems to us clear beyond controversy that the act must receive the reasonable construction, not onlj^ warranted, but required, by the comparison of its provisions with the provisions of other acts, and with each other, and that upon such reasonable construction it must be held to sustain the proposition that express contracts to pay coined dollars can only be satisfied by the payment of coined dollars." The Confederate States also issued tbeii- notes, to be used as ciiyrency, but, unlike our governnient, tliey did not make them a legal tender. Contracts at the South during the war had reference generall}^ to these notes when dollars were mentioned. After the war, suits being brought upon many of these contracts, the ques- tion was raised as to the meaning to be attached to the term " dollars " used in them. On the one hand, it 70 was said, and correctly, that by " dollars," as defined in the statutes, were meant pieces of gold and silver coin of a prescribed fineness and weight, each bearing the stamp of the United States, expressive of its value. On the other hand, it was manifest that there would be great injustice in giving this meaning to the term, when by it only Con- federate notes were intended. As well might it be claimed that to contracts made in Germany, where the term " dol- lars " is used, a similar construction should be given when the contracts are sought to be enforced in this country, although the German dollar is worth only sixty-nine cents of our dollar. In Thorington vs. Smith, (8 Wall., 1,) wdiich was be- fore the court at the December term of 1868, this question was presented. In that case a tract of land in Alabama had been sold in 1864 by the plaintiff, Thorington, to the defendants for |45,000, of which $35,000 were paid, and for the residue a promissory note of the purchasers was o-iven. Upon the suppression of the rebellion, Confeder- ate notes became, of course, valueless, and, in 1867, Thor- ington filed a 1)111 against the purchasers for the enforce- ment of his lien as vendor, claiming $10,000 in the only money then current, that of the United States. The de- fendants answered that at the time of the purchase Ala- bama was one of the Confederate States, and from that por- tion where the parties resided, and the contract was made, the authority of the United States was excluded ; that there was no gold or silver coin nor were any notes of the United States in circulation there ; that the only currency in use for the ordinary transactions of business consisted of Confederate notes ; that the land purchased was worth only $3,000 in lawful money of the United States ; that the contract was to be paid, by agreement of parties, in Confederate notes, of which $35,000 were thus paid, and that the balance w^as to be discharged in the same way. It was, therefore, insisted, upon this state of facts, that the plaintitt" was not entitled to any relief. The court below, 71 behiii; of opinion that tlu> coiitrart was illc^-al lu'causc [»ay- ahk' in those noti's, tlisinissi';! the hill, hut the Siiprenie Court reversed the deu'ision, holding that the (^)nlV'd^'rate States had established a government of jiai'aniount loi'ce over the States of the Confederacy, and that hy its au- thority their notes were placed in circulation and hccanic ahnost exchisively the currency of those States ; that con- tracts pa.yal)le in them could not for that reason In' i-e- garded as made in aid of the insurrection ; that they had no necessary relations to the insui-gent government, hut were transactions in the ordinary course of civil society, and were without blame, except when proved to have been entered into with actual intent to further the rebellion. The court also held that evidence of the character and value of this currency was competent and admissible. Upon this latter point the court, speaking through the Chief Justice, said : '• It is quite clear that a contract to pay dollars, made between citizens of any State of the Union, while maintaining its constitutional relations with the national government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence. But it is equally clear, if in any other country, coins or notes denomi- nated dollars should be authorized of dift'erent value from the coins or notes which are current here under that name, that in a suit upon a con- tract to pay dollars, made in that country, evidence would be admitted to prove what kind of dollars were intended, and if it should turu out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States. Such evidence does not modify or alter the contract. It simply explains an ambiguity, which, under the general rules of evidence, may be removed by parol evidence." It was accordingly adjudged that the vendor could re- cover only the actual value of the Confederate notes at the time and place of the contract, in lawful money of the United States. At the December term of 1872, in Hanauer vs. Wood- rutf, this case was cited, and in reference to the alleged illegality of the contract, because made in Confederate currency, Judge Field, speaking for the court, said : " The transaction was in a currency imposed by irresistible force upon the community, in which currency the commonest transactions in the daily life of millions of people, even in the minutest particulars, were carried on, and without the use of which there would have been no me- dium of exchange among them. The simplest purchase in the market of daily food would, without its use, have been attended with inconveniences which it is difficult to estimate. It would have been a cruel and oppres- sive judgment, if all the transactions of the many millions of people, composing the inhabitants of the insurrectionary States, for the several years of the war, had been held tainted with illegality because of the use of this forced currency, when those transactions were not made with any reference to the insurrectionary government." — (15 AValL, 448. See, also, the Confederate note case, 19 Wall., 555.) Tlie constitutionality of the legal-tender clause of the act of Congress was discussed in Lane County vs. Oregon, Bronson vs. Rodes, and in other cases before the court, but they either went oti" on some other point, or their de- cision was reserved until judgment should he rendered in Hepburn vs. Griswold, wdiere the question was directly presented and could not be avoided. That case, which was before the court both at the December term of 1868, and the December term of 1869, was elaborately argued, first on briefs and then orally, by counsel of eminent ability, and it was long held under advisement. Indeed it was after- wards said by some of tlie judges that no case before the court since its organization had been more fully pre- sented or more deliberately considered. The question was whether the holder of a note payable in dollars, made be- fore the legal-tender act was passed, was obhged in law to accept in payment United States notes, equal in. nominal amount to the sum due, when tendered by the maker ; or in other words, whether debts contracted previous to the legal-tender act could be discharged, against the consent of the holder, by legal-tender notes. The presentation of the question placed the Chief Justice in a very embarrass- ing position. The provision assailed had been recom- mended by him when Secretary of the Treasury, though with much doubt and hesitation. It did not, however meet the approval of all the lawyers of the Senate. Some of the ablest of tliom, like ('oll;niu>r and FcssciuU'ii, oppost'd il as liolli iiiuu'ccssary and unconstiliitioiial. But as tlic war c-oiitimu'd. and inimeiisc dralts wrw made upon tlie Treasm-y, the validity of the [)rovision was o-enerally a^•(lui eseed in as a matter of necessity. So w hen the ques- tion came before the court for adjudication a- laru'e portion of the peopU' had come to believe in its constitutionality, and several supreme courts in ihe loyal States had pro- nounced in its favor. In adilitioii to all this, three of the judges expressed themselves stronu'ly on the subject as having no doubt whatever of the validity of the [trovision, A regard for consistency urged him to concur with their views. His mind was sorely perplexed, and the ((uestion was examined and re-examined by him with painful anx- iety. But his sense of duty prevailed. He could not l)e false to Ids convictions as a judge in order to preserve his consistency as a statesman. He pronounced against the vahdity of the provisioii and read the opinion of the court. That opinion is well known to the country. It presents the unconstitutionality of the provision in the clearest light. In it he alludes to his own change of views on the question, as follows : " It is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the Eepuhlic, almost universal, different views, never before entertained by American states- men or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or ex- ecutive authority. If power was assumed from patriotic motives, the as- sumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent. Some who were strongly averse to making government notes a legal ten- der felt themselves constrained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or ac- quiesced in that view, have, since the return of peace, and under the in- fluence of the calmer time, reconsidered their conclusions, and now con- cur in those which we have just announced." — (8 AVall., 6"25.) The views of the Chief Justice, as well as the action of the court, in the several cases under the legal-tender act, 74 have been fully stated, because they had the entire con- currence and earnest support of Judge Field, and because of wbat subsequently occurred to bring about a reconsid- eration of the question decided and a reversal of the judg- ment of the court. Tbe Judge had frequent consultations upon the queotions raised with the Chief Justice, who never hesitated to express in strong terms his appreciation V of the Judge's counsel. The decision was received by the country, excepting • the debtor class, with favor. Many who did not object to the application of the act to future contracts were re- joiced that the injustice, likely to attend its application to past contracts, was prevented. As to future contracts, they said, parties acted with the law before them. But y from the debtor class, and especially the large corporations of the country, the greater part of whose liabilities had been created before the war, the decision met with decided hostility. A movement was at once set on foot to obtain its reversal. The legislation of Congress, suggested by the court in the hope that it might to some degree be re- lieved of the great pressure of labor upon it, favored this movement. In the winter of 1869 members of the Ju- diciary Committee of the Senate informed the court that they would be glad to receive from it suggestions for changes in the judicial system with a view to facilitate the discharge of its business. The members of the coui't thereupon met and appointe.l Judges Miller and Field a committee to consider the subject and report what changes should be recommended. They suggested a bill for the appointment of independent circuit judges. The sugges- tion was favorably received, and a bill for that purpose was prepared by them, and, after some verbal changes, was approved by the judges and sent to the Judiciary Com- mittee of the Senate. It was then reported by Senator Trumbull from that committee, with some slight changes, and was soon after passed by both Houses. President Johnson refused to sign it, but after Gen. Grant became President it was again introduced into the Senate and was soon passed, to take effect on the 1st of December, 18G9. It increased the number of judges of tlie Supreme Court to nine, thus necessitating the appointment of a new mem- ber, and created nine independent circuit judges. As the court then consisted of onl}^ eight judges, it was neces- sary, to obtain a niajority in favor of the legal-tender provision, that two new judges should be appointed who would agree with the three who had opposed the late decision. It was, therefore, suggested that the physical infirmities of Judge Grier were sucb that he should re- tire. At that time he was unable to walk without assist- ance from others, and he was accompanied by his servant itito the court-room whenever he took his seat on the bench. Owing to the frequent comments in the public journals upon his infirmities, and the suggestions of some friends, he was induced to send in liis resigna- tion. Ilis mind was then as clear as ever, but his physi- cal system was greatly impaired. The letter of the Judges to him on his resignation testifies to their high appreciation of the purity of his character, the great powers of his intellect, and his profound knowledge of the law. His resignation took eflect the 1st of February, 1870. Mr. Stanton was appointed his successor, but he died a few days afterwards, before even Judge Grier's resignation took effect. So it was said by the present Sec- retary of State, Ml-. Evarts, that Judge Grier had the singular experience of attending the funeral of his suc- cessor whilst he himself was still on the bench. Judge Strong was then nominated and confirmed. For the new judgeship created Mr. E. 11. Hoar, of Massachusetts, the Attorney-General, was nominated, but he was rejected by the Senate. Judge Bradley was then nominated and confirmed. There have been many things of an unpleasant char- acter said in regard to the appointment of Judges Strong and Bradley, but the writer of this narrative cannot <2:ive uiiy nppi-uvul of them. Undoubtedly Mr, Hoar, the Attorney-General, wa.s very active and earnest to se- cure tlie appointment of judges who would favor a re- versal of the decision against the legal-tender provision. He openly said as mueli. It is also true that Judge Strong was known to be in favor of the constitutionality of that provision. Whilst a judge of the Supreme Court of Pennsylvania he had written an opinion to that ctfect. It was also well known that Judge Bradley, as counsel of the Camden and And)oy Railroad C^ompany, had given a similar opinion. Their appointment was un- doubtedly advocated partly in view of these facts, and this can be said without any injurious reflection upon them. It is probable that nearly all appointments of judges are made with some reference to their opinions as to the construction to be given to the Constitution. It is not at all likely that during the war any one would have been nominated, or, if nominated, have been confirmed, who believed that under it secession was a constitutional rem- edy of the States for their grievances, or who did not ap- prove of the forcible suf)pression of the rebellion by the General Government, There could be, therefore, tio just ground of reproach against those gentlemen because they were appointed in view of their previously expressed opinions. The complaint against them arose from the re- versal, through their aid, of the previously w-ell-eonsidered judgment of the majonty of the Court, without any reasons being advanced different from those presented when the case was originally heard. Thoughtful men, without ques- tioning the learning and ability of Judges Strong and Bradley, felt that it was wrong that a solemn judgment of the Court, affecting great public interests, reached only after long and careful considei'ation, should be reversed by a mere change in its personnel. Soon after the new judges had taken their seats, Attorney-General Hoar moved that two cases then pend- ing" undecided —the Latham ease mid the Deniing case, appealed from the Court of Chiims -.sliould be set down for argument, and suggested that the k'gal-tendcr [iro- vision sht)uhl be considered in them. 'IMiis ai)[>rK'atiou created a gO(»d deal of feeling, and led to an un})leasant controversy among members of the court. The ma- jority — consisting of the three judges who had previously dissented from the opinion in Hepburn vs. Griswold, and the two newly appointed judges — ordered the argument, and it would have taken place but from the hict that the appeals were dismissed by the appellants and the rehearing of the question thus prevented. Those who take any interest in this unfortunate controversy will lind the [larticulars stated in tlie life of Chief Justice Chase and in the journals of the day. It is not the intention of the writer of this narrative to recall them. Judges Xel- son, Clitlbrd, and Field were on pleasant terms with all their associates, and however great the ditference of opin- ion between them and the other judges, tlieir personal re- lations were not disturbed. At the following term of December, 1870, two other cases came before the court involving the constitutionality of the legal-tender cases — Knox vs. Lee and Parker vs. Davis. They are reported in 12th Wallace, under the title of "Legal-Tender Cases." In them the whole question of the constitutionality of the legal-tender clause was rear- gued and reconsidered. The previous judgment in Hep- burn vs. Griswold was reversed by the judgment of five against four, and the constitutionality of the tender clause asserted. Judge Strong gave the opinion of the court. The Cliief Justice and Judges Clitibrd and Field each ^^ave a dissenting opinion. ()f these dissenting opinions this can be said: that they exhaust the whole subject, and it is difficult to understand how any one, after reading them, can doubt that the Constitution intended that gold and silver alone should be a legal tender in the United States. As said by Judge Field in his opinion : 78 '■ If we consider the history of the times when the Constitution was adopted ; the intentions of the franiers of that instrument, as shown in their debates ; the contemporaneous exposition of the coinage power in the State conventions assembled to consider the Constitution, and in the public discussions before the people; the natural meaning of the terms used ; the nature of the Constitution itself as creating a government of enumerated powers; the legislative exposition of nearly three-quarters of a century; the opinions of judicial tribunals, and the recorded utterances of statesmen, jurists, and commentators, it would seem impossible to doubt that the only standard of value authorized by the Constitution was to con- sist of metallic coins struck or regulated by the direction of Congress, and that the power to establish any other standard was denied by that in- strument." No adequate account of these dissenting opinions can be given without a much fuller citation than this narra- tive permits. A few extracts will be made from the one by Judge Field, as it is only with his judicial career that this narrative is concerned. Referring to the position urged on the argument of the case, that as the issue of the notes was authorized under the power to borrow money, the annexing to them the quality of legal tender was an appropriate means to the execution of that power, as it enhanced their value, and thus increasing their circulation, induced parties the more readily to advance upon them, the Judge said as follows: The power of Congress to borrow money "is not difterent in its nature or essential incidents from the power to borrow possessed by individuals, and is not to receive a larger definition. Nor is it difterent from the power often granted to public and private corporations. The grant, it is true, is usually accompanied in these latter cases with limitations as to the amount to be borrowed, and a designation of the objects to which the money shall be applied,— limitations which in no respect affect the nature of the power. The terms ' power to borrow money ' have the same meaning in all these cases, and not one meaning when used by in- dividuals, another when granted to corporations, and still a different one when possessed by Congress. They mean only a power to contract for a loan of money upon considerations to be agreed between the parties. The amount of the loan, the time of repayment, the interest it shall bear, and the I'orm in which the obligation shall be expressed are simply mat- ters of arrangement between the parties. They concern no one else. It is no part or incident of a contract of this character that the rights or interests of third jjarties, strangers to the matter, shall be in any respect 79 affectt'd. The transaction is conniiftcd when the lender has parted with his money, and tlie l)ovio\ver lias ^iven liis promise of repayment at the time, and in the manner, and with tiie seenrities stipulated between them. •■ As an inducement to the loan, and security for its repayment, the borrower may of course pledge such pi'operty or revenues, and annex to his promises such rights and privileges as he may possess. His stipula- tions in this respect ar(* necessarily limited to his own property, rights, and privileges, and cannot extend to those of other persons. " Now. whether a borrower— be the borrower an individual, a corpora- tion, or the government— can annex to the bonds, notes, or other evi- dences of debt given for the money borrowed, any ((uality by which they will serve as a means of satisfying the contracts of other parties, must necessarily depend upon the question whether the borrower possesses any right to interfere with such contracts, and determine how they shall be satisfied. The right of the borrower in this respect rests upon no ditferent foundation than the right to interfere with any other property of third parties. And if it will not be contended, as I think I may assume it will not be, that the borrower possesses any right, in order to make a loan, to interfere with the tangible and visible property of third parties, I do not perceive how it can be contended that he has any right to inter- fere Avith their property when it exists in the form of contracts. A large part of the property of every commercial people exists in that form, and the principle which excludes a stranger from meddling with another's ]iroperty which is visible and tangible, equally excludes him from med- dling with it when existing in the form of contracts. " That an individual or a corporation borrowing possesses no poAver to annex to his evidences of indebtedness any quality by which the holder will be enabled to change his contracts with third parties, strangers to the loan, is admitted ; but it is contended that Congress possesses such power because, in addition to the express power to borrow money, there is a clause in the Constitution Avhich authorizes Congress to make all laws ' necessary and proper ' for the execution of the powers enumerated. This clause neither augments nor diminishes the expressly designated powers. It only states in terms what Congress would equally have had the right to do without its insertion in the Constitution. It is a general principle that a power to do a particular act includes the power to adopt all the ordinary and appropriate means for its execution." " That is only appropriate which has some relati(m of fitness to an end. Borrowing, as already stated, is a transaction by Avhich, on one side, the lender parts Avith his money, and on the other the borrower agrees to repay it in such form and at such time as may be stipulated. Though not a necessary part of the contract of borroAving, it is usual for the borroAver to offer securities for the repayment of the loan. The fit- ness Avhich Avould render a means appropriate to this transaction thus considered must have respect to the terms Avhich are essential to the con- so tract, or to the securities which the borrower may furnish as an induce- ment to the loan. The quality of legal tender does not touch the terms of the contract of borrowing, nor does it stand as a security for the loan. A security su^jposes some right or interest in the thing pledged, which is subject to the disposition of the borrower. " There has been much confusion on this subject from a failure to dis- tinguish between the adaptation of particular means to an end and the effect, or supposed effect, of those means in producing results desired by the government. The argument is stated thus: the object of bor- rowing is to raise funds ; the annexing of the quality of legal tender to the notes of the government induces parties the more readily to loan upon them ; the result desired by the government — the acquisition of funds — is thus accomplished ; therefore, the annexing of the quality of legal tender is an appropriate means to the execution of the power to borrow. But it is evident that the same reasoning would justify, as appropriate means to the execution of this power, any measures which would result in obtaining the required funds. The annexing of a provision by which the notes of the government should serve as a free ticket in the public conveyances of the country, or for ingress into places of public amuse- ment, or which would entitle the holder to a percentage out of the reve- nues of private corporations, or exempt his entire property, as well as the notes themselves, from State and municipal taxation, would produce a ready acceptance of the notes. But the advocate of the most liberal construction would hardly pretend that these measures, or similar meas- ures touching the property of third parties, would be appropriate as a means to the execution of the power to borrow. Indeed, there is no in- vasion by government of the rights of third ijarties which might not thus be sanctioned upon the pretence that its allowance to the holder of the notes would lead to their ready acceptance, and produce the desired loan. " The actual effect of the quality of legal tender in inducing parties to receive them was necessarily limited to the amount required by existing debtors, who did not scruple to discharge with them their pre-existing liabilities. For moneys desired from other parties, or supplies required for the use of the army or navy, the provision added nothing to the value of the notes. Their borrowing power or purchasing power de- pended, by a general and an universal law of currency, not upon the legal-tender clause, but upon the confidence which the parties receiving the notes had in their ultimate payment. Their exchangeable value was determined by this confidence, and every person dealing in them ad- vanced his money and regulated his charges accordingly." " Without the legal-tender provision the notes would have cir- culated equally well and answered all .the purposes of government — the ouly direct benefit resulting from that provision arising, as already stated, from the ability it conferred upon unscrupulous debtors to discharge with them previous obligations. The notes of State banks circulated without 81 possessing that (quality and supplied a currency for the people just so long as confidence in the ability of the banks to redeem tlie notes contin- ued. The notes issued by the national bank associations during the war, under the authority of Congress, amounting to three hundred millions, which were never made a legal tender, circulated equall}' well with the notes of the United States. Neither their utility nor their circulation was diminished in any degree by the absence of a legal-tender quality. They rose and fell in the market under the same influences and precisely to the same extent as the notes of the United States, which possessed this qual- ity." Referring to the position that the annexing of the qual- ity of legal tender was a necessary means to the exercise of other powers of Congress, particularly to declare war, to suppress insurrection, to raise and support armies, and to provide and maintain a navy, all of which were called into exercise and severely taxed at the time, the Judge said as follows : " It is evident that the notes have no relation to these powers, or to any other powers of Congress, except as they furnish a convenient means for raising money for their execution. The existence of the war only in- creased the urgency of the government for funds. It did not add to its powers to raise such funds, or change, in any respect, the nature of tho.se powers or the transactions which they authorized. If the power to en- graft the quality of legal tender upon the notes existed at all with Con- gress, the occasion, the extent, and the purpose of its exercise were mere matters of legislative discretion ; and the power may be equally exerted when a loan is made to meet the ordinary expenses of government in time of peace, as when vast sums are needed to raise armies and provide navies in time of war. The wants of the government can never be the measure of its powers. " The Constitution has specifically designated the means by which funds can be raised for the uses of the government, either in war or peace. These are taxation, borrowing, coining, and the sale of its public prop- erty. Congress is empowered to levy and collect taxes, duties, imposts, and excises to any extent to which the public necessity may require. Its power to borrow is equally unlimited. It can convert any bullion it may po.ssess into coin, and it can dispose of the public lands and other property of the United States or any part of such property. The desig- nation of these means exhausts the powers of Congress on the subject of raising money. The designation of the means is a negation of all others, for the designation would be unnecessary and absurd if the use of any and all means were permissible without it. These means exclude a re- sort to forced loans, and to any compulsory interference with the prop- erty of third persons, excejit by regular taxation in one of the forms mentioned." 82 After showing that the act of Congress impaired the obhgation of past contracts, and referring to the statement of Judge Miller, in his dissenting opinion in Hepburn vs. Griswold, that the Constitution does not forbid legislation having that etfect, the Judge said as follows : " It is true there is no provision in the Constitution forbidding in ex- press terms such legislation. And it is also true that there are express powers delegated to Congress, the execution of which necessarily operates to impair the obligation of contracts. It was the object of the framers of that instrument to create a national government competent to repre- sent the entire country in its relations with foreign nations, and to ac- comi)lish by its legislation measures of common interest to all the people, which the several States in their independent capacities were incapable of effecting, or if capable, the execution of which would be attended with great difficulty and embarrassment. They, therefore, clothed Con- gress with all the powers essential to the successful accomplishment of these ends, and carefully withheld the grant of all other powers. Some of the powers granted, from their very nature, interfere in their execu- tion with contracts of parties. Thus war suspends intercourse and com- merce between citizens or subjects of belligerent nations; it renders during its continuance the performance of contracts, previously made, unlawful. These incidental consequences were contemplated in the grant of the war power. So the regulation of commerce and the imposition of duties may so affect the prices of articles imported or manufactured as to es- sentially alter the value of previous contracts respecting them ; but this incidental consequence was seen in the grant of the power over commerce and duties. There can be no valid objection to laws passed in execution of express powers that consequences like these follow incidentally from their execution. But it is otherwise when such consequences do not fol- low incidentally, but are directly enacted. " The only express authority for any legislation affecting the obligation of contracts is found in the power to establish a uniform system of bank- ruptcy, the direct object of which is to release insolvent debtors from their contracts upon the surrender of their property. From this express gi-ant in the Constitution I draw a very different conclusion from that drawn in the dissenting opinion in Hepburn vs. Griswold, and in the opinion of the majority of the court just delivered. To my mind it is a strong argument that there is no general power in Congress to interfere with contracts, that a special grant was regarded as essential to authorize an uniform system of bankruptcy. If such general power existed the deleo-ation of an express power in the case of bankrupts was unneces- sary. As very justly observed by counsel, if this sovereign power could be taken in any case without express grant, it could be taken in con- nection with bankruptcies, which might be regarded in some respects as a regulation of commerce made in the interest of traders. 83 "The grant of a liinitcd power over the subject of contracts necessarily implies that the franiers of the Constitution did not intend that Congress should exercise unliniitt'd power, or any power less restricted. The limitation designated is the measure of congressional power over the subject. This follows from the nature of the instrument, as one of enumerated jjowers. "The doctrine that where a power is not expressly forbidden it may be exercised would change the whole character of our government. As I read the writings of the great commentators and the decisions of this court, the true doctrine is the exact reverse, that if a power is not in terms granted, and is not necessary and proper for the exercise of a power thus granted, it does not exist." And, after referring to the interference ^^'itll contracts bv the legiskition of the several States, previous to the adoption of the Constitution, in the form of tender laws, appraisement laws, installment laws, and suspension laws, which was the cause of great oppression and injustice, and which Judge Story declared prostrated all private credit and all private morals, the Judge continued as follows : " It would retiuire verj^ clear evidence, one would sui>pose, to induce a belief that with the evils, resulting from what Marshall terms the sys- tem of lax legislation following the Revolution, deeply impressed on their minds, the framers of the Constitution intended to vest in the new gov- ernment created bj^ them this dangerous and despotic power which they were unwilling should remain with the States, and thus widen the pos- sible sphere of its exercise. " When the possession of this power has been asserted in argument, (ibr until now it has never been asserted in any decision of this court) it has been in cases where a supposed public benefit resulted from the legislation, or where the interference with the obligation of the contract was very slight. Whenever a clear case of injustice, in the absence of such supposed public good, is stated, the exercise of the power by the government is not only denounced, but the existence of the power is de- nied. No one, indeed, is found bold enough to contend that if A has a contract for one hundred acres of land, or one hundred pounds of fruit, or one hundred yards of cloth, Congress can pass a law compelling him to accept one-half of the quantity in satisfaction of the contract. But Congress has the same power to establish a standard of weights and measures as it has to establish a standard of value, and can, from time to time, alter such standard. It can declare that the acre shall consist of eighty square rods instead of one hundred and sixty, the pound of eight ounces instead of sixteen, and the foot of six inches instead of twelve, and if it could compel the acceptance of the same uimihcr of acres, 84 pounds, or yards after such alteration, instead of the actual quantity stip- ulated, then the acceptance of one-half of the quantity originally desig- nated could be directly required without going through the form of alter- ing the standard. No just man could be imposed upon by this use of words in a double sense, where the same names were applied to denote different quantities of the same thing, nor would his condemnation of the wrong committed in such case be withheld because the attempt was made to conceal it by the jugglery of words. " The power of Congress to interfere with contracts for the payment of money is not greater or in any particular different from its power with respect to contracts for lands or goods. The contract is not fulfilled any more in one case than in the other by the delivery of a thing which is not stipulated, because by legislative action it is called by the same name. Words in contracts are to be construed in both cases in the sense in which they were understood by the parties at the time of the contract. " Let us for a moment see where the doctrine of the power asserted will lead. Congress has the undoubted right to give such denominations as it chooses to the coin struck by its authority, and to change them. It can declare that the dime shall hereafter be called a dollar, or, what is the same thing, it may declare that the. dollar shall hereafter be composed of the grains of silver which now compose the dime. But would anybody pretend that a contract for dollars, composed as at present, could be satis- fied by the delivery of an equal number of dollars of the new issue? I have never met any one who would go to that extent. The answer al- ways has been that would be too flagrantly unjust to be tolerated. Yet enforcing the acceptance of paper promises or paper dollars, if the prom- ises can be so called, in place of gold or silver dollars, is equally enforcing a departure from the terms of the contract, the injustice of the measure depauding entirely upon the actual value at the time of the promises in the market. Now reverse the case. Suppose Congress should declare that hereafter the eagle should be called a dollar or that the dollar should be composed of as many grains of gold as the eagle, would any body for a moment contend that a contract for dollars, composed as now of silver, should be satisfied by dollars composed of gold? I am confident that no judge sitting on this bench, and, indeed, that no judge in Christendom could be found, who would sanction the monstrous wrong by decreeing that the debtor could only satisfy his contract in such case by paying ten times the value originally stipulated. The natural sense of right which is implanted in every mind would revolt from such supreme injustice. Yet there cannot be one law for debtors and another law for creditors. If the contract can at one time be changed by congressional legislation for the benefit of the debtor, it may at another time be changed for the bene- fit of the creditor. "For acts of flagrant injustice such as those mentioned there is no au- thority in any legislative body, even though not restrained by any ex- press constitutional prohibition. For as there are unchangeable principles 85 of rifiht and morality, without which society would be impossible, and men would be but wild beasts preyinff ujjon each other, so there are fun- damental princij)les of eternal justice, upon the existence of which all constitutional <;overnment is founded, and without which yovernmeut would be an intolerable and hateful tyrainiy." Referriui;' to the asseited power of Coii2:rcss to require itf^ own pi'oniises to be received in discharge of its pre- vious ol)li<::ations, the Judge said : " It follows, then, logically, from the doctrine advanced by the major- ity of the court as to the power of Congress over the subject of legal tender, that Congress may borrow gold coin upon a pledge of the public faith to repay gold at the nuiturity of its obligations, and yet, in direct disregard of its pledge, in open violation of faith, may compel the lender to take, in place of the gold stipulated, its own i)romises : and that legis- lation of this character would not be in violation of the Constitution, but in harmony with its letter and spirit. " What is this but declaring that repudiation by the government of the United States of its s'olemn obligations would be constitutional? Whenever the fultillment of the obligation in the manner stipulated is refused, and the acceptance of something different from that stipulated is enforced against the will of the creditor, a breach of faith is committed ; and to the extent of the difference of value between the thing stipulated and the thing which the creditor is compelled to receive, there is repudi- ation of the original obligation. I am not willing to admit that the Con- stitution, the boast and glory of our country, would sanction or permit any such legislation. Eepudiation in any form, or to any extent, would be dishonor, and for the commission of this public crime no warrant, in my judgment, can ever be found in that instrument." And, referring to the argument that Congress can reg- uUite the aUoy of the coins issued under its authority, and luis exercised its power in that respect without question, by diminishing in some instances the actual quantity of gold or silver they contain, the Judge said : " Undoubtedly Congress can alter the value of the coins issued by its authority by increasing or diminishing, from time to time, the alloy they contain, just as it may alter, at its pleasure, the denominations of the several coins issued, but there its power stops. It cannot make these al- tered coins the equivalent of the coins in their previous condition ; and, if the new coins should retain the same names as the original, they would only be current at their true value. Any declaration that they should have any other value would be inoperative in fact, and a monstrous dis- regard by Congress of its constitutional duty. The power to coin money, as already cleclaretl by this covirt, is a great trust devolved upon Congress, carrying with it the duty of creating and maintaining an uniform stand- ard of value throughout the Union, and it would be a manifest abuse of this trust to give to the coins issued by its authority auy other than their real value. By debasing the coins, when once the standard is tixed, is meant giving to the coins, by their form and impress, a certificate of their having a relation to that standard different from that which, in truth, they possess ; in other words, giving to the coins a false certificate of their value. Arbitrary and profligate governments have often resorted to this miserable scheme of robbery, which Mills designates as a shallow and impudent artifice, the ' least covert of all modes of knavery, which con- sists in calling a shilling a pound, that a debt of one hundred pounds may be cancelled h)y tlie payment of one hundred shillings.' " The Judge concluded his opinion as follows : " I know that the measure, the validity of which I have called in question, was passed in the midst of a gigantic rebellion', when even the bravest hearts sometimes doubted the safety of the Republic, and that the patriotic men who adopted it did so under the conviction that it would increase the ability of the government to obtain funds and supplies, and thus advance the national cause. Were I to be governed by my ap- preciation of the character of those men, instead of my views of the re- quirements of the Constitution, I should readily assent to the views of the majority of the court. But, sitting as a judicial officer, and bound to compare every law enacted by Congress with the greater law enacted by the people, and being unable to reconcile the measure in question with that fundamental law, I cannot hesitate to pronounce it as being, in my judgment, unconstitutional and void. "In the discussions which have attended this subject of legal tender there has been at times what seemed to me to be a covert intimation, that opposition to the measure in question was tlie expression of a spirit not altogether favorable to the cause, in the interest of which that measure was adopted. All such intimations I repel with all the energy I can express." I do not yield to any one in honoring and reverencing the noble and patriotic men who were in the councils of the nation during the terrible struggle with the rebellion. To them belong the greatest of all glories in our history, — that of having saved the Union, and that of having emancipated a race. For these results they will be remembered and honored so long as the English language is spoken or read among men. But I do not admit that a blind approval of every measure which they may have thought essential to put down the rebellion is any evi- dence of loyalty to the country. The only loyalty which I can admit consists in obedience to the Constitution and laws made in pursuance of it. It is only by obedience that affection and reverence can be shown to a superior having a right to command. So thought our great Master when he said to his disciples : ' If ye love me, keep my commandments.' " 87 TiTR LE(!ISLAT[VE PoWKll OF 'I'lIK I N'Slltd KNT S'I'ATKS DUlUxXG TifK Civil AVak, and tiik kxtk.nt to which thk Confed- KUATK (ioVKltX.MK.NT COlLI) P.H F. IK; ARDKD AS A ] )i: FaCTO CJOVKIIXMKNT. Tlie states do not (lorive their powers iVom the general government. Thirteen of them existed before that gov- ernment was formed ; and the others have come under it with simihir powers and rights. Tf there were no States tliere wonhl of course he no such pohtieal organization as the United States. If the Union were destroyed the States as independent pohtieal communities would remain, though a government hke that of the Union would be necessary to their prosperity. That government preserves peace among them, thus ensuring domestic tranquillity, reg- ulates commercial intercourse between them, secures to citizens of the several States equality of privileges and immunities in all of them, and exercises control over foreign atiairs and matters of general concern, which could not be managed by the States acting separately, except in a few particulars, without great embarrassment and difh- culty. It is essential, therefore, as all must see, to the whole country. But as the original States existed before the Constitution, and the States subsequently formed have been admitted into the Union upon terms of equality with them — all possess the attributes and powers of distinct pohtieal communities, except as limited and restrained by that insti-ument. When the civil war broke out the char- acter of the insurgent States as such communities was not changed. They retained and exercised the powers pre- viously possessed, which were essential to the security of persons and property, the preservation of order, and the due administration of justice. Their attempt to sever their relations to the government of the Union and to form a confederation wdth a part only of the States, and a new central government for themselves, could have, under the Constitution, no validitv. To those who regard that in- 88 strument as creating a perpetual Union, to be dissolved only by the consent of tlie people of the several States, this new confederation could be nothing more than a re- bellious organization — treasonable in its designs and ac- tions — to be suppressed, if necessary, b}" armed force. That instrument prohibits any treaty, alliance, or confederation between one State and another, and the new confederation was in open defiance and contempt of this prohibition. It also declares that the Constitution, and the laws of the United States made in pursuance thereof, shall be the su- preme law of the land. The new confederation denied this supremacy, repudiated the authority of the Constitution and of the laws passed in pursuance thereof, and endeavored to maintain its position by force of arms. The United States could, therefore, only treat it, and the government created by it, as the military representative of the insur- rection against their authority. The concession of bel- ligerent rights gave to its armed forces in the conduct of the war the position and rights of parties engaged in law- ful warfare. But no further recognition was ever extended to it. Its legislation was never treated as valid, and when its forces were overthrown, its whole organization dis- appeared. The insurgent States, however, were in a ditierent posi- tion. They remained as previously to the war, with similar legislative powers, their acts being invalid only so far as they impaired or tended to impair the supremacy of the government of the Union or the rights of loyal citizens. The Constitution, after delegating to the Congress of the United States certain enumerated powers, declares that it may make any laws necessary or proper to carry its powers into execution. Judge Field was always a "Union man," and when the rebellion broke out, he never hesi- tated a moment to give his earnest support to the govern- ment for its suppression. He had no patience with the doctrine of non-coercion, and denounced it as the sugges- tion of treason, or the utterance of stupidity. And to 89 this (lay lie never refers to it except with an ex[)ressioii of conteni]>t. In a eliari;-e to a grand jnry at Pan Fran- cisco in 1872, in alluding to the results of the war, he thus spoke of it : "That war has done away forever with the miserable notion, which extensively prevailed at the time of the outbreak of the rebellion, that the general government, beeause it was formed by the people of the sev- eral States, sovereign in some of their powers, should not exert any co- ercion to enforce its laws. No one is now willing to run a tilt against common sense by adducing any argument in support of this absurd po- sition ; and the war has demonstrated that the general government pos- sesses all the power necessary to enforce obedience to its laws throughout the limits of the Republic." The views stated as to the legislative powei-s of the in- surgent States, and the character given to the Confed- erate government as the representative of tlie military insurrection, have been sanctioned by the Supreme Court in many decisions, notwithstanding some hesitation and some doubtful expressions in the early cases. These de- cisions deny all validity to any legislative action of the States favoring the insurrection, or against the rights of loyal citizens, but they sustain all other acts of ordinary legislation; and they treat the government of the Confed- erate States as a wholly illegal and traitorous combination. In Texas vs. White, at the December term, 1868, Chief Justice Chase, after observing that the Legislature of Te«^as, during the war, constituted one of the depart- ments of a state government established in hostility to the Constitution, and could not therefore l>e regarded in the courts of the United States as a lawful legislature, said that, as a department of the government having actual control of the State, he was of opinion that its acts, when not hostile to the United States, should be regarded as valid. Speaking for the court, he said : " It is not necessary to attempt any exact definitions within which the acts of such a state government must be treated as valid or invalid. It may be said, perhaps with sutftcient accuracy, that acts necessary to peace and good order among citizens — such, for example, as acts sanction- ing aiul protecting marriage and the domestic relations, governing the 90 course of descents, regnlatin<^ the conveyance and transfer of property, real and personal, and providing remedies for inj iiries to person and es- tate, and otlier similar acts, which wonld be valid if emanating from a lawful government — must be regarded, in general, as valid when pi'oceed- ing from an actual though unlawful government ; and that acts in fur- therance or support of rebellion against the United States, or intended to defeat the Just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void." — (7 Wall., 733.) In Horn vs. Lockliai't, before the court at the October tei-Di of 1873, these views are reasserted with still greater emphasis. There a bill had been tiled by the legatees in a will to compel an executor in-Alal)ama to account for funds received by him belonging to the estate of his tes- tator, and to pay to them their distributive shares. He had, under a law of that State, invested the funds in bonds of the Confederate States, and the investment was ap- proved by the decree of the probate court; and the ques- tion w\as whether this disposition of the moneys received, and the decree of the court, were a sutiicient answer to the suit of the legatees to compel an accounting. In reply to it. Judge Field, speaking for tbe court, said : " The bonds of the Confederate States were issued for the avowed purpose of raising funds to prosecute the war then waged by them against the government of the United States. The investment was, therefore, a direct contribution to the resources of the Confederate gov- ernment ; it was an act giving aid and comfort to the enemies of the United States ; and the invalidity of any transaction of that kind, from whatever source originating, ought not to be a debatable matter in the courts of the United States. No legislation of Alabama, no. act of its convention, no judgment of its tribunals, and no decree of the Confed- erate government could make such a transaction lawful. " We admit that the acts of the several States in their individual ca- pacities — executive, judicial, and legislative — during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the law. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated,, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one, that we are aware of, seriously questions the validity of 01 judicial or leji'i8lati\e acts in the iiisiirn-ctiimary Stads ((lucliinji tlicse and kindred subjects, where they were not hdslile in tlicir purpose or mode of enforeenient to the anthority of tiu' national jinvcrnincut, and did not impair the rijihts of eitizens under the Constitution/' — (17 NN'all., r>s(i. ) 111 ['nitcd States vs. Insurance Companies, at the Octo- ]>vv term of 1874, these views were reiterated and affirmed, the court citing- witli ;i[)[)r()li:iii()U tltc [»;issa,<;-cs iVoiii the opinions in Texas vs. Wliite and l.ockhart vs. Jlorn, given al)ove. These corporations, created hy tlie Legishiture of (Tcorgia during- tlie war, were held to lie lawful institu- tions, c:4)a])le of suing in the federal courts, not heing in their purposes or operation hostile to the I^nion, or in con- flict with the Constitution, hut creatures of ordinary leg- islation, such as might have heen created if there had heen no war or attempted secession. In giving the opinion of the court, Judge Strong, after making the al)ove and other similar citations, said : "After these emphatic utterances controversy upon this subject should cease. All the enactments of the dc facto legislatures in the insurrec- tionary States during the war, which were not hostile to the Union or to the authority of the general government, and which were not in con- flict with the Constitution of the United States, or of the States, have the same validity as if they had l)een enactments of legitimate legisla- tures. Any other doctrine than this would work great and unnecessary hardshii) upon the people of those States, without any corresponding benefit to the citizens of other States, and without any advantage to the national government." — (22 Wall., 103. See also Sprott vs. United States, 20 Wall., 464.) The character in wdiich the go^'ernmeut of the Confed- erate States was to Ijc regarded, in view of the concession of hehigerent rights to its armed forces, was tlie suhjectof frequent consideration by the Supreme Court. In Thoi-ing- ton vs. Smith, at the Deceml)er term of 1868, the Chief Justice, in dehvering the opinion of the court, spoke of the different kinds of de facto governments, and compared the government of the Confederate States with the govern- ment imposed upon Castine, in Maine, by the Bi'itish forces in 1814, and that imposed upon Tampico, in Mexico, by the 92 Americans in 1846, and designated it as a government of paramount force, to which obedience, being a matter of necessity, became a duty for the preservation of civil order; but said that by the government of the United States it had been regarded, from an early period of the civil war to its close, as simply the military representative of the insurrec- tion against their authority — (7 Wall., 9.) But by far the most thorough and exhaustive consideration of the char- acter of the government of the Confederate States, and its relation to the government of the Union, is contained in the opinion in Brufiy vs. AVilliams, decided at the October term of 1877. In that case the question arose as to the validity of an act of the Confederate States, during the war, confiscating a debt due from a citizen of Virginia to a citizen of Penn- sylvania. The former having died, an action was brought after the war against his administrator to recover the del)t. The defendant took the ground that the enactment of the Confederate States was that of an independent nation, and must be so treated. His contention was substantially this : that the Confederate government, from April, 1861, until it was overthrown in 1865, was a government de facto, complete in all its parts, exercising jurisdiction over a well- defined territory, which included that portion of Virginia where the deceased resided, and as such de facto govern- ment it had engaged in war with the United States ; and possessed and was justified in exercising within its territo- rial limits all the rights of war which belonged to an inde- pendent nation, and among them, that of confiscating debts due by its citizens to its enemies. In support of this position reference was made to numer- ous instances of de facto governments which had existed in England and in other parts of Europe and in America, to the doctrines of jurists and writers on public law re- specting the powers of such governments, and the validity accorded to their acts, to the opinion of the Supreme Court of the United States, in Thorington vs. Smith and in the Prize Cases, to the concession of belligerent rights to the 93 ContedcM'iito goviM-iuiioiit, and to the action of tlio States diirinu' the revolutionaiy war and tlic [u'riod ininu'diately followinii' it. In re[)ly to this position, Jud«;\' Field, in (U'livering the o[)iiuon ot" the court said as follows : '■ We do not question tlie doctrines of public law which have been in- voked, nor their application in proper cases, but it will be found upon examination that there is an essential diiference between the government of the Confederate States and those de facto governments. The latter are of two kinds. One of them is such as exists after it has expelled the regularly constituted authorities trom the seats of power and the public offices, and established its own functionaries in their places, so as to repre- sent in fact the sovereignty of the nation. Such was the government of England under the commonwealth established upon the execution of the King and the overthrow of the loyalists. As far as other nations are con- cerned such a government is treated as in most respects possessing rightful authority ; its contracts and treaties are usually enforced ; its acquisitions are retained ; its legislation is in general recognized ; and the rights ac- quired under it are, with few exceptions, respected after the restoration of the authorities which were expelled. All that counsel sa^- of de facto gov- ernments is justly said of a government of this kind. But the Confederate government was not of this kind. It never repi-esented the nation ; it never expelled the public authorities from the country ; it never entered into any treaties; nor was it ever recognized as that of an independent power. It collected an immense military force and temporarily expelled the author- ities of the United States from the territory over which it exercised an usmped dominion ; but in that expuLsion the United States never ac- quiesced ; on the contrary, they immediately resorted to similar force to re- gain possession of that territory and re-establish their authority, and they continued to use such force until they succeeded. It would be useless to comment upon the striking contrast between a government of this nature, which with all its military strength never had undisputed posses- sion of power for a single day, and a government like that of the Com- monwealth of England under Parliament or Cromwell. "The other kind oi de facto governments, to which the doctrines cited relate, is such as exists where a portion of the inhabitants of a country have separated themselves from the parent state and established an inde- pendent government. The validity of its acts, both against the parent state and its citizens or subjects, depends entirely upon its ultimate suc- cess. If it fail to establish itself permanently, all such acts perish with it. If it succeed and become recognized, its acts from the conuuencemeut of its existence are upheld as those of an independent nation. Such was the case of the state governments under the old confederation on their sep- aration from the British Crown. Having made good their declaration of independence, everything they did from that date was as valid as if their 94 independence had been at once acknowledged. Confiscations, therefore, of enemy's property made by them were sustained as if made by an inde- pendent nation. But if they liad failed in securing their independence, and the authority of the King had been re-established in this country, no one would contend that their acts against him, or his loyal subjects, could have been upheld as resting upon any legal foundation. " When a rebellion becomes organized and attains such proportions as to be able to put a formidable military force in the field, it is usual for the established government to concede to it some belligerent rights. This concession is made in the interests of liumanity, to prevent the cruelties which would inevitably follow mutual reprisals and retaliations. But belligerent rights, as the terms import, are rights which exist only during war; and to what extent they shall be accorded to insurgents depends upon the considerations of justice, humanity, and policy controlling the government. The rule stated by Vattel, that the justice of the cause be- tween two enemies being by the law of nations reputed to be equal, what- soever is permitted to the one in virtue of war is also permitted to the other, applies only to cases of regular war between independent nations. It has no application to the case of a war between an established govern- ment and insurgents seeking to withdraw themselves from its jurisdiction, or to overthrow its authority.* The concession made to the Confederate government in its military character was shown in the treatment of cap- tives as prisonei'S of war, the exchange of prisoners, the recognition of flags of truce, the release of officers on parole, and other arrangements having a tendency to mitigate the evils of the contest. The concession placed its soldiers and militaiy officers in its service on the footing of those engaged in lawful war, and exempted them from liability for acts of legit- imate warfare. But it conferred no further immunity or any other rights. It in no respect condoned acts against the government not committed by armed force in the military service of the rebellious organization. It sanc- tioned no hostile legislation ; it gave validity to no contracts for military stores; and it impaired in no respect the rights of loyal citizens as they had existed at the commencement of the hostilities. Parties residing in the insurrectionary territory, having property in their possession as trus- tees or bailees of loyal citizens, may in some instances have had such property taken from them by force, and in that event they may perhaps be released from liability. Their release will depend upon the same principles which control in ordinary cases of violence by an unlawful combination too powerful to be successfully resisted. *'But debts not being tangible things subject to physical seizure and removal, the debtors cannot claim release from liability to their creditors by reason of the coerced payment of equivalent sums to an unlawful combination. The debts can only be satisfied when paid to the creditors to whom they are due, or to others by direction of lawful authority. Any * Halleck's Inter. Law, ch. xiv., sec. 9. 9;-) sum which the uiilawi'ul coinljination may liavc conipclUnl the dehtors to pay to its agents on account of debts to h)yal citizens cannot have any ef- fect upon their obligations ; they remain subsisting and unimpaired. Tlic coiutssion ofliclligerent riglitsto the rebellious organization yielded noth- ing to its iiiitcnsions of legality. If it had .succeeded in its contest it would have protected the debtor from further claim for the debt, but as it foiled the creditor may have recour.se to the courts of the country as prior to the rebellion. It would be a strange thing, if the nation, after succeeding in suppressing the rebellion and re-establishing its authority over the insur- rectionary district, should by any of its tribunals recognize as valid the at- tempt of the rebellious organization to confiscate a debt due to a loyal cit- izen as a penalty for his loyalty. Such a thing would be unprecedented in the historj- of unsuccessful rebellions, and would rest upon no just principle. " Tlie immense power exercised by the government of the Confederate States for nearly four years, the territory over which it extended, the vast resources it wielded, and the millions who acknowledged its authority, pre- sent an imposing spectacle, well fitted to mislead the mind in considering the legal character of that organization. It claimed torejjresent an inde- pendent nation and to possess sovereign powers ; and as such to displace the jurisdiction and authority of the United States from nearly half of their territory, and instead of their laws to substitute and enforce those of its own enactment. Its pretensions being resisted, they were submitted to the arbitrament of w^ar. In that contest the Confederacy failed, and in its foilure its pretensions were dissipated, its armies scattered, and the whole fabric of its government broken in pieces. The very property it had amassed passed to the nation. The United States during the whole con- test never for one moment renounced their claim to supreme jurisdiction over the whole country, and to the allegiance of every citizen of the Re- public. They never acknowledged in any form, or through any of their departments, the lawfulness of the rebellious organization, or the validity of any of its acts, except so far as such acknowledgment may have arisen from conceding to its armed forces in the conduct of the war the standing ' and rights of those engaged in lawful warfare. They never recognized its asserted power of rightful legislation." The Judge then proceeded to show tliat there wixs noth- ing in confliet with these view\s in Thorington vs. Smith, or in the Prize Cases, or in Wheaton or Vattel, and tiien added, that it was unnecessary to pursue the sulijcct fur- ther; that— "\Yhatever de facto character may be ascribed to the Confederate gov- ernment consists solely in the fact, that it maintained a contest w ith the United States for nearly four years, and dominated for that period over 96 a large extent of territory. When its military forces were overtluown it utterly perished, and with it all its enactments." He concluded as follows : " Whilst thus holding that there was no validity in any legislation of the Confederate States which this court can recognize, it is proper to observe that the legislation of the States stands on very different grounds. The same general form of government, the same general laws for the admin- istration of justice and the protection of private rights, which had ex- isted in the States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair or tend to impair the supremacy of the national authority or the just rights of citizens under the Constitution, they are, in general, to be treated as valid and binding." — (Citing from Horn vs. Lockhart, 76 U. S.) Protection from Military Arrest and Imprisonment dur- ing THE War of Citizens not in the Military Service, in States where the Civil Courts were open and in the Undisturbed Exercise of their Jurisdiction. After tliG decision of the Supreme Court in the Milligan case, at the Decemher term of 1865, declaring military commissions in the loyal States, for the trial of citizens not in the military service or prisoners of war, to be ille- gal, no attempt was made to bring the decrees of such irregular and unauthorized tribunals before the court. Their illegality was accepted without further contest. 'But during the war there were in some instances arbitrary and oppressive acts committed in the loj^al States by military officers, particularly those filling the positions of provost- marshals, for which redress was sought by civil action. An instance of this kind was before the Supreme Court in Beckwith vs. Bean, at the October term of 1878. That action was brought against the provost-marshal and assist- ant provost-marshal of a military district embracing the State of Vermont, and was for an assault and battery upon the plaintiff, and his imprisonment in the state prison for several months — from ^November, 1864, to April, 1865 — 97 without process of law niid under cireuinstiinees of ii'reat cruelty and op[)ressi()n. it apjieared iVoin tlic cN'idcucc in the case that on the 11th of Noveiuber, 18G4, the plain- titf, whilst returning from a trip to Boston to liis home in Canada, where he temporarily' resided, though a citi/en of the United States, was arrested by one of the del'endants, the assistant provost-nuirshal, without any warrant <»r pro- cess of law, and detained until the following day ; that he was tlien forcibly taken by order of the other defendant, the provost-marshal, and placed in the state prison at AVindsor, where he remained until the 2<;th of April, 1865, a period of nearly five months, when he wuh admitted to bail and released from imprisonment; that during this period he w^as locked up at night, and for the first few days in the day- time also, in a narrow and scantily furnished cell, being one in which convicts were confined at night ; that after the first few days he w^as allowed, upon his complaint of the coldness of the cell, to spend tlie day in the shops where the convicts worked,. but lie was required to go out and to return wlieu they did, and at no time to he out of sight of a keeper, and not to go on the corridor or in the yard for ex- ercise ; that the food oftered to him was the fare served to the convicts, which he could not eat, and that aftei'wards he obtained his meals from the keeper's tal)le by paying a small sum each week ; and that during this period no complaint against him was filed with any nuigistrate ; and that he w-as simply held upon the order of the defendants. The excuse ofi'ered by them for this imprisonment and treatment of the plaintifi" was, that they suspected that he had aided or been privy to the desertion from the army of two substitutes, who had been furnished upon a contract with a substitute broker, and for whom the latter had paid $1,200, of wdiich sum |800 had been received by the plaintifi" and two others. Suspecting the plaintifi", the defendants determined to hold him in the state prison until they should coerce him to pay not merely what he had received, but what his supposed confederates 98 had received also. After he had been in tlie state prison for a few days, the provost-marslial called npon him, and verbally informed him that he was charged with aiding or being privy to the desertion of the substitutes, but that he would be discharged on payment of the $800, and $25 additional for expenses. The plaintiff protested that he was innocent of the charge and demanded a trial. He was told in reply that " he could not have a trial, and could not get one," but that his case would be reported to the officer's superiors. During his imprisonment he made constant efforts to obtain a trial, or release on bail which he was able and willing to furnish. But no trial was allowed him, and not until intercession was made on his behalf at Washington by a member of Congress was he permitted to give bail and be discharged. When the grand jury of the United States court subsequently met in Vermont they found no cause for prosecution against him, although the provost- marshal made a statement of the case to them. At the time of his arrest and during his imprisonment there was no rebeUion in the State of Vermont against the laws and government of the United States, nor were there any military operations carried on within its limits. The courts of justice, both federal and state, were open and in the full exercise of their jurisdiction; and the plaintiff was not in the mihtary service or in any way connected with such service; and for the offence of which he was sus- pected, or for any other offence, could have been brought before them on any day of tlie year. By his imprison- ment, and the report that he was in the state prison, his business was ruined, his personal property and furniture were seized by creditors and sacrificed at sheriff's sale, and his wife was compelled to leave his home and return to her friends in Vermont. On the trial of the action, the defendants relied for their defence upon the fourth section of the act of Congress of March 3d, 1863," relating to habeas corpus, and regulating 99 judicial pi'occodiiiii's in certain i-ases;'' and u])(in the act of March iM, ISCT, to dci-larc valid and con.'lusivc certain proclamations of the President, and acts done in pursuance thereof, or of his orders in the suppression of the late re- bellion; contending that under them the defendants were to be presumed to have acted by the orders of the Presi- dent, and that they were thereby jnstitied for the matters complained of. And if they were not thus Jnstitied, then they sought to give in evidence in mitigation of damages the testimony of certain parties, which was discovered after the arrest and imprisonment of the plaintiti", tending to establish facts, which, if known at that time, would have justilied, to some extent, their suspicions as to his com- plicity in the escape of the substitutes. The court below, in refusing to give certain instructions asked, held that the defendants were not justilied imder the acts of Con- gress and the proclamations of the President mentioned. It also held that evidence of the possible guilt of the plaintiti", discovered after the commission of the grievances complained of, was inadmissible in mitigation of damages. The plaintitr accordingly obtained a verdict and judg- ment for $15,000 damages, and the case was carried to the Supreme Court. There the Attorney-(Teneral appeared for the military officers, and contended, substantially, as follows : 1st. That the defendants were to be presumed to have acted, in the arrest and imprisonment of the plaintiti", l)y the orders of the President; and that by the acts of Con- gress they were justified for the matters complained of. 2d. That the evidence of the possible guilt of the plain- titf, discovered after the commission of the grievances, was admissible in mitigation of damages. The first proposition was not passed upon, the court ob- serving that the instruction requested ignored the evidence introduced, that the defendants had, under circumstances of oppression and wantonness, and by improper and fraudulent representations, procured their superior otficers 100 " to continue the imprisonment longer than necessary, and prevented them from having a speedy trial " for the oftence charged; and on that ground, and not on the ground that the acts of Congress justifying the conduct of the defend- ants were invalid, or that the orders of the President, if issued, would have aftbrded no justification to them, the court overruled the objection to tlie ruling of the court below. But the second proposition the court sustained, and, for the refusal of the court below to admit the subse- quently discovered evidence, reversed the judgment and ordered a new trial. From this decision Judges Clitlbrd and Field dissented. Judge Field giving an elaborate dissenting opinion, in which the invalidity of the acts of Congress, and of any orders of the President, if issued, to justify the conduct of the defendants, is conclusively shown. The subject is so important, and is so fully considered, that no apology is necessary for extended citations from the opinion. Both propositions of the Attorney-General were discussed at length. Upon the first proposition the Judge, after citing the acts of Congress, said as follows : " These statutes, as is apparent on their face, extend only to acts done in compliance with express orders or proclamations of the President. They do not cover acts done by persons upon their own will and discre- tion, who may have been at the time in the service of the government, simply because they were under the general direction of the President as commander-in-chief They were not intended to protect against judicial inquiry and redress every act of a surbordinate in the military service in suppressing or punishing what he may have regarded as a disloyal practice, no matter how fiagiTint the outrage he may have thus committed against life, liberty, or property. " It is not pretended that any proof was produced that the arrest and imprisonment of the plaintiff were made under any express order or proclamation of the President ; but it is contended by the Attorney- General, that under the last clause of the act of 1867 it is to be presumed that their action [the defendants'] was authorized by the President, and that they are thus relieved from accountability for it. "The court below held, that assuming the construction placed by the Attorney-General upon the statute to be correct, and that from the com- 101 mission of the act the presuni])tion arose that it was authorized by th(3 President — the act thus presumptively establishing its own validity — the presumption in this case was repelled, inasmuch as it api)eared in evi- dence by whose direction the orders were issued under which the plain- lift' was arrested and imprisoned. It appeared that they never originated witli or liad the sanction of tlie President. "If however, the court below erred in this resi)oct, there is another and a conclusive answer to the defence — one which renders futile and abortive all attempts to justify the action of tlie defendants under any presumed orders of the President — and that is, that it was not within the compe- tency of the President or of Congress to authorize or approve the acts here complained of, so as to shield the perpetrators from responsibility. '"Persons engaged in the military service of the United States are, of course, subject to what is termed military law ; that is, to those rules and regulations which Congress has provided for the government of the army and the punishment of offences in it. Congress possesses authority un- der the Constitution to prescribe the tribunals, as well as the manner in which otfenders against the discipline of the army and the laws for the protection of its men and officers shall be summarly tried and punished ; and to the jurisdiction thus created, all persons in the military service are amenable. But that jurisdiction does not extend to persons not in the military service, who are citizens of States where the civil courts are open. " It may be true, also, that on the actual theatre of military operations, what is termed martial law, but which would be better called martial rule, for it is little else than the will of the commanding general, applies to all persons, whether in the military service or civilians. It may be true that no one, whatever his station or occupation, can there interfere with or obstruct any of the measures deemed essential for the success of the army, without subjecting himself to immediate arrest and summary puni.shment. The ordinary laws of the land are there superseded by the laws of war. The jurisdiction of the civil magistrate is there suspended, and military au- thority and force are substituted. The success of the army is the controll- ing consideration, and to that everything el.se is required to bend. To secure that success, persons may be arrested and confined, and property taken and used or destroyed at the command of the general, he being re- spon.sible only to his superiors for an abuse of his authority. His orders, from the very necessity of the case, there constitute legal justiiication for any action of his officers and men. This martial rule — in other words, this will of the commanding general, except in tlie country of the enemy occupied and dominated by the army — is limited to the field of military operations. In a country not hostile, at a distance from the movements of the army, where they cannot be immediately and directly interfered with, and the conrts are open, it has no existence. " The doctrine sometimes advanced by men, with more zeal than Avis- doni, that whenever war exists in one part of the country, the constitu- 102 tional guaranties of personal liberty, and of the rights of property, are suspended everywhere, has no foundation in the principles of the com- mon law, the teachings of our ancestors, or the langiiage of the Constitu- tion, and is at variance with every just notion of a free government. Our system of civil polity is not such a rickety and ill-jointed structure, that when one part is disturbed the whole is thrown into confusion and jostled to its foundation. The fact that rebellion existed in one portion of the country could not have the effect of superseding or suspending the laws and Constitution in a loyal portion widely separated from it. The war in the Southern States did not disturb Vermont from her con- stitutional ijropriety. She did not assent to the theory that war and dis- turbance elsewhere could destroy the security given by her laws and government. The same juridical institutions, and the same constitu- tional guaranties for the protection of the personal liberty of the citizen, with all the means for their enforcement, remained there as completely as before ; and the Constitution and laws of the United States were as capa- ble of enforcement in all their vigor in that State during the war as at any time before or since. The arrest and imprisonment of the plaintiff, even if made by direct order of the President, were, therefor, in plain violation of the fifth constitutional amendment, which declares that no person shall be deprived of his liberty without due process of law. No mere order or proclanuition of the President for the arrest and imprison- ment of a person not in the military service, in a State removed from the scene of actual hostilities, where the courts are open and in the unob- structed exercise of their jurisdiction, can constitute due process of law ; nor can it be made such by any act of Congress. Those terms, as is known to every one, were originally used to express what was meant by the terms 'the law of the land ' in Magna Charta, and had become syn- onymous with them. Tliey were intended, as said by this court, ' to se- cure the individual from the arbitrary exercise of the powers of govern- ment, unrestrained by the established principles of private right and dis- tributive justice.'* They were designed to prevent the government from depriving any individual of his rights except by due course of legal pro- ceedings, according to those rules and principles established in our sys- tems of jurisprudence for tlie protection and enforcement of the rights of all persons. " To me. therefore, it is a marvel, that in this country, under a Constitu- tion ordained by men who were conversant with the principles of Magna Charta, and claimed them as their birthright — a Constitution which de- clares in its preamble that it is established ' to secure the blessings of lib- erty to ourselves and our posterity ' — it could ever be contended that an order of the Executive, issued at his will, for the arrest and imprisonment of a citizen, where the courts are open and in the full exercise of their jurisdiction, is due process of law, or could ever be made such bj^ an act of * Bank of Columbia vs. Okely, 4 Wheat., 235. 103 CongTcss. I certainly never supposed that such a proposition eould be se- riously asserted before the highest triljunal of the Kepublie by its chief legal officer. I had supposed that we could justly claim that in America, under our republican government, the personal liberty of the citizen was greater and better guarded than that of the subject in England. It is only the extraordinary claim made by the counsel of the government in this case which justifies any argument in support of principles so funda- mental and heretofore so universally recognized. It may be necessary at times with respect to them, as it is necessary at times with respect to ad- mitted principles of morality, to re-state them in order to rescue them from the forgetfulness caused liy their universal admission. " The assertion that the power of the government to carry on the war and suppress the rebellion, would have been crippled and its efficiency impaired, if it could not have authorized the arrest of persons and their detention without examination or trial, on suspicion of their complicity with the enemy, or of disloyal practices, rests upon no foundation whatever, so far as Vermont was concerned. There was no invasion or insurrection there, nor any disturbance which obstructed the regular administration of justice. A claim to exemption from the restraints of law is always made in support of arbitrary power, whenever unforeseen exigencies arise in the aftairs of government. It is inconvenient ; it causes delay ; it takes time to furnish to committing magistrates evidence which, in a country where personal liberty is valued and guarded by constitutional guaranties, Avould justify the detention of the suspected ; and, therefore, in such ex- igencies, say the advocates of the exercise of arbitrary power, the evi- dence should not be required. A doctrine more dangerous than this to free institutions could not be suggested by the wit of man. The proceed- ings required by the general law for the arrest and detention of a party for a public ofitnce— the charge under oath, the examination of witnesses in the presence of the accused, with the privilege of cross-examination, and of producing testimony in his favor, creating the objectionable de- lays — coiistitute the shield and safeguard of the honest and loyal citizen. They were designed not merely to insure ijunishment to the guilty, but to insure protection to the innocent, and without them every one would hold his liberty at the mercy of the government. ' All the ancient, hon- est, juridical principles and institutions of England,' says Burke — and it is our glory that we inherit them — ' are so many clogs to check and retard the headlong course of violence and oppression. They were invented for tliis one good purpose, that what was not just should not be convenient.' * Whoever, therefore, favors their subversion or suspension, except when in the presence of actual invasion or insurrection the laws are silent, is con- sciously or unconsciously an enemy to the Republic. " If neither the order of the President nor the act of Congress could suspend, in a State where war was not actually waged, any of the guar- * Letter to the Sheriffs of Bristol. 10-1 anties of the Coustitution intended tor the protection of the plaintiff from nnlawfnl arrest and imprisonment, neither could they shield the de- fendants I'rom responsibility in disregarding them. Protection against the deprivation of liberty and property would be defeated if remedies for redress, where such deprivation was made, could be denied." Ill answer to the second proposition of the Attorne}'- General, that evidence of the possible guilt of the plain- tiff discovered after the commission of the grievances com- jDlained of, was admissible in mitigation of damages, the Judge said as follows : "As facts not known at that time [when the grievances were com- mitted] could not have inlluenced the conduct of the defendants, it is difficult to comprehend how proof of those facts could be received to show the motives — of malice or good faith — with which they then acted. " Independently of this consideration, it seems to me, that the evidence of the guilt or innocence of the plaintitf was entirely immaterial. Assum- ing that he was guilty of the complicity alleged — thai he had admitted his guilt to the defendants — that circumstance would not have justified their conduct in the slightest degree. They would have been equally bound upon that assumption, as they were in fact bound — no more and no less — to take the plaintiff before the pi'oper magistrate to be proceeded against according to law. To keep him for nearly six months in the state prison among convicts, without taking him before the proper officer to be held to bail or bi'ought to trial, was a gross outrage upon his rights, whether he were guilty or innocent. There were magistrates in every county of the State competent to act upon the charge, and the district at- torney was ready to take control of all cases against the laws of the United States and prosecute them. The defendants not only omitted this plain, Imperative duty, but detained the plaintiff in prison, not with a view to punish him for the offence of which they suspected him to be guilty, but to coerce from him payment of money alleged to be due by him and others to a substitute broker. "Where is the law or reason for allow- ing one, who by force holds another in confinement in order to extort the payment of money, to show in extenuation of his conduct that the man had been guilty of some offence against the law ? The answer in all such cases should be, that the law attaches the proper penalties to its viola- tion, and appoints the ministers bj^ whom those penalties are to be en- forced ; and whenever they can act, whoever usurps their authority and attempts to punish supposed offenders, in aiiy other mode than that pro- Aided by law, is himself a criminal. For, as it was said by a distin- guished statesman and jurist of England, when the laws can act, 'every other mode of punishing supposed crimes is itself an enormous crime.' " The doctrine announced by the decision of the court in this case is nothing less than this: that a gross outrage upon the rights of a person 105 may be extenuated or excused by proof that tlie outra<;ed party had him- self been guilty of some crime, or, at least, that the perpetrators of the outraiie had reason to suspect that he had. This doctrine is prejitiant with evil. I know not why, under it, the violence of inol)s, excited ajiainst fiuilty or suspected parties, may not find extenuation. Let sucli a doctrine be once admitted, and a greater l)Iow will be dealt to personal security than any given to it for a century. '"It will appear from an examination of the adjudged cases, as it must on princijile, that when illegal measiires have been taken to redress pri- vate wrongs, or to punish tor oifences against the public, it is inadmissi- ble to prove, in mitigation of actual or exemplary damages, that the party injured was guilty of the otfence or misconduct constituting the l)rovocation to the illegal measures, except where the provocation is of a personal character calculated to excite passion, and so recent as to create the presumption that the acts complained of were committed under the influence of the p;ission thus excited. -They are founded upon the plain principle, that no one can be allowed to undertake the punishment of wrongdoers according to his own notions ; that the administration of punitive ju.stice for all offences is conlided by the law to certain public otiicers, and whoever a.ssumes their functions without being authorized, usurps the prerogative of sovereign power and becomes himself amena- ble to puni.shment. He shall not be permitted to set up the real or sup- posed oifences of others to justify his own wrong." PROTEt'TIOX TO OFFICERS AND SoLDIERS OF THE ArMY OF THE United States in the Enemy's Country during THE War, In the prosecution of the late war the arniie.'^ of tlie United Spates were, as a matter of course, sent into the States in insurrection. The destruction wliich nocessaril}^ attended tlieir inarch, too-other with acts of violence of individual soldiers, ^^■hieh no disci[)line could wholly pre- vent, produced the natural result — -great hitterness and hostility on the part of the inhabitants of the invaded country. With the close of the war this feeling did not entirely cease, and wliere a crime had been committed the wdiole community would naturally desire to have its per- petrator punished. Where a pei'sonal wrong had been sutfered, or a wanton injury to private property com- mitted, the sutlx'rer would naturally consider the possi- 106 bility of redress in the courts. Hence criminal prosecu- tions were in many instances hegmi against parties who had been in tlie federal armies for alleged offences during the war, and numerous private suits were brought for in- juries to persons and property. Some of these found their way to the Supreme Court, where decisions were rendered extending protection to the oflicers and soldiers of the army against prosecution in the tribimals of the enemy's country for otfences or injuries committed there by them during the war. The first of these cases was that of Coleinan from Ten- nessee, which was before the court at the October term of 1878. Coleman was indicted in October, 1874, in one of the district courts of Tennessee for the murder of a young woman in March, 1865. To the indietnient he pknided not guilty, and a foi-mer conviction for the same offence by a general court-martial roguhirly convened for his trial at Knoxville, Tennessee, on the 27th of March, 1865, the United States at that time, and when the oftence w^as com- mitted, occupying with their armies East Tennessee as a military district, and the defendant being a regular soldier in their military service, subject to the articles of w^ar, mihtary orders, and such military laws as were there in force by their authority, alleging that he was arraigned by that tribunal up(m a charge of murder, in having killed the same person mentioned in the indictment, and was afterwards, on the 9th of May, 1865, tried and convicted of the offence and sentenced to death by hanging, and that said sentence was still standing as the judgment of the court-martial, approved as required by law in such cases, without any other or further action thereon. He, therefore, prayed that the indictment might be quashed. The local court held this plea bad on the ground, among others, that the defendant's conviction of the ofience charged by a court-martial, under the laws of the United States, on the 9th of May, 1865, was not a bar to the in- dictment for the same offence; because by the murder 107 alle2:ed he was also guilty of an oflencc against the laws of Tennessee, Tie was thereupon put upon his trial in that court, convicted of murder, and sentenced to death. On ai)peal to the Supreme Court of the State the judgment was aHirnicd, and the case was taken to the Supreme i\)\wt ()!' the Tnited States. It was there argued as though its determination (lei)ended upon the construction given to the oOth section of the act of Congress of Nhirch od 18y its laws, as enforced by its armies, could they be punished. " It is well settled that a foreign army i)ermitted to march through a friendly country, or to be stationed in it, by authority of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. The sovereign is understood, said this court in the celebi-ated case of The Exchange, to cede a portion of his territorial jurisdiction when he allows the troops of a foreign prince to pass through his dominions : — ' In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign inde- pendent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn Irom the control of the sovereign whose power and whose safety might greatly depend on re- taining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require.' "If an army marching through a friendly country would thus be exempt from its civil and criminal jurisdiction, a fortiori \\ould an army invading an enemy's country be exempt. The fact that war is waged be- tween two countries negatives the possibility of jurisdiction being exer- cised by the tribunals of the one country over persons engaged in the 110 military service of the other for offences committed while in such ser- vice. Aside from this want of jurisdiction there would be something in- congruous and absurd in permitting an oiiicer or soldier of an invading army to be tried by his enemy, whose country he had invaded. " The tact that when the offence was committed, for which the defend- ant wa.s indicted, the State of Tennessee was in. the military occupation of the United States, with a military governor at its head, appointed by the President, cannot alter this conclusion. Tennessee was one of the in- surgent States forming the organization known as the Confederate States, against which the war was waged. Her territory was enemy's country, and its character in this respect was not changed until long afterwards. " The doctrine of international law on the effect of military occupa- tion of enemy's territory upon its former laws is well established. Though the late war was not between independent nations, but between different portions of the same nation, yet having taken the proportions of a territorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occu- pation is one of the incidents of war, being a consequence of its acquisi- tion ; and the character and form of the government to be established de- pend entirely upon the laws of the conquering State or the order of its military commander. By such occupation the political relations between the people of the hostile country and their former government or sover- eign are for the time severed ; but the municipal laws, that is, the laws which 'regulate private rights, enforce contracts, punish crime, and regu- late the transfer of property, remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended or superseded by the conqueror. And the tribunals by which the laws are enforced continue as before unless thus changed. In other words, the municipal laws of the State and their administration remain in full force so far as the inhabitants of the country are concerned unless changed by the occupying belligerent. * " This doctrine does not affect in any respect the exclusive character of the jurisdiction of the military tribunals over the officers and soldiers of the army of the United States in Tennessee during the war; for, as al- ready said, they were not subject to the laws, nor amenable to the tribu- nals of the hostile country. The laws of the State for the punishment of crime were continued in force only for the protection and benefit of its own people. As respects them, the same acts which constituted offences before the military occupation constituted offences afterwards; and the same tribunals, unless superseded by order of the military com- manders, continued to exercise their ordinary jurisdiction. " If these views be correct, the plea of the defendant of a former con- viction for the same offence by a court-martial under the laws of the United States was not a proper plea in the case. Such a plea admits the * Halleck's Int. Law, chap, xxxiii. Ill jurisdiction of the criininal court to try tlu' oll'cncc if it wore not for the former conviction. Its inapplicability, however, will not prevent our ,uivini)ointed under the law enacted for the government and rcfiulation of the army in time of war, and whilst that army was in a hostile and conquered State. The judgment of that tribunal at the time it was rendered, as well as the per- son of the defendant, were beyond the control of the State of Tennessee. The authority of the United States was then sovereign and their juris- diction exclusive. Nothing Avhich has since occurred has diminished that authority or impaired the efficacy of that judgment. " In thus holding, we do not call in question the correctness of the general doctrine asserted by the Supreme Court of Tennessee, that the same act may, in some instances, be an offence against two governments, and that the transgressor may be held liable to punishment by both when the punishment is of such a character that it can be twice inflicted, or by either of the two governments if the punishment, from its nature, can be only once suft'ered. It may well be that the satisfaction which the transgressor makes for the violated law of the United State-s is no atone- ment for the violated law of Tennessee. But here there is no case pre- sented for the application of the doctrine. The laws of Tennessee with regard to offences and their punishment, which were allowed to remain in force during its military occupation, did not apply to the defendant, as he was at the time a soldier in the army of the United States and sub- ject to the articles of war. He was responsible for his conduct to the laws of his own government only as enforced hy the commander of its army in that State, without whose consent he could not even go beyond its lines. Had lie been caught by the forces of the enemy, after com- mitting the offence, he might have been subjected to a summary trial and l)unishment by order of their commander, and there would have been no just ground of complaint, for the marauder and assassin are not protected by any usages of civilized wartare. But the courts of the State, whose regular government was superseded, and whose laws were tolei-ated from motives of convenience, were without jurisdiction to deal with him." The Supreme Cotirt of the United States accordingly reversed the judgment of the Supreme Court of Tennes- see; hut it did not allow the criminal to escape. It added to its reversal the following direction : " But as the defendant was guilty of murder, as clearly appears not only by the evidence in the record in this case, but in the record of the proceedings of the court-martial, a murder committed, too, under circum- 112 stances of great atrocity, and as he was convicted of the crime by that court and sentenced to death, and it appears by his plea that said judg- ment was duly approved and still remains without any action having been taken upon it, he may be delivered up to the military authorities of the United States, to be dealt with as required by law." The prisoner was soon afterwards turned over to tlie military authorities of the United States, when his punish- ment was commuted to imprisonment for Rfe at hard kibor, and he is now tlius imprisoned. In the ease of Dow vs. Johnson, at the October term (^f 1879, the question came before the court whether an oihcer of the army of the United States, whilst in service during the late war in the enemy's country, was lial)le to a civil action in the courts of that country for injuries resulting from acts of war ordered by him in his military character; and it was held that he was not thus liable, and that he could not be called upon to justify or explain his military conduct in a civil tribunal upon any allegation of the in- jured party that the acts complained of were not justified by the necessities of war. He was responsible only to his own government, and only by its laws, administered by its authority, could he be called to account. The case was one which excited a good deal of interest, and the question presented was elaborately discussed. The defendant, Neal Dow, was a brigadier-general in the army of the United States, and in 1862 and 1863 was stationed in Louisiana in command of Forts Jackson and St. Philip, on the Mississippi River, below N"ew Orleans. These forts surrendered to the forces' of the United States in April, 1 862. The fleet under Admiral Farragut had passed them and reached ^ew Orleans on the 25th of the month, and soon afterwards the city was occupied by the forces of the United States under General Butler. On taking p(.>s- session of the city, the General issued a proclamation, bearing date on the 1st of May, 1862, in wdiich, among other thinics, he declared that until the restoration of the ■it\ ■ WOl lid l.c ,-•( )vei'iie(l ;tu chatii r(,'s ol tlie pL'aco, •(', iiiti,'! •l\'i'iiii>' \\ ,-ith the \V( .ul.l ^^ 1)0 ret; ■rrecl to lis lllUCl lit ;" tha t other lie imii licipal authority •an ises between parties rv trib uiials/' Uucler 11:^ authority of the I'liitetl rj)y. To it the de- fendant |dea(U_'d tlie i^'eneral issue, mil fir/ rei-ord, and eer- taiu spi'eial plea-, theol/jeet of whieh was to show that the (hsti'ict eoui't Liad no jurisdietion to i'en(h'i' the judu'- )nent in (pii-stion, for the rt'ason that at the time its district was a part of tlie country in insurrection auainst the gov- ernment of the ITnitod States, and making war against it, and was held in suhjeetion l)y its armed f >rces ; that the defendant was then a hrigadier-general in the military ser- vice of the Ignited States, coniuiissioned l)y the I'resident, and acting in that State under his orders and the ai'ticles of war; and was authorized 1)\' the general order of the Presi- dent of July 22d, 1862, to seize and use any [)roperty, real or personal, which might be necessary or eonv^enient for his command as supplies, or for other military purposes; that by his order the troops under his command seized from the plaintili" then a citizen of that State, certain chat- tels necessaiy and convenient for su[iplies for the army of the United States, and other military purposes ; and that for that seizure the action was brought in the Sixth District Court of New (Orleans against him, in which the judgment in question was rendered ; that the general government had deprived that court of all jurisdiction, except such as was conferred by the commanding general, and that no jurisdiction over persons in the military ser- vice of the United States for acts performed in the line of their duty was ever thus conferred upon it. Upon these pleas the main question stated above was discussed. In deciding it, Judge Field, who gave tlie opinion of the court, after dis[K)sing of a prelinunary ob- jection, said as follows : " This brings us to the consideratiou of the main question involved, which we do not regard as at all difficult of solution, when reference is had to the character of the late war. The war, though not between independent nations, but between different portions of the same nation, was acoompa- 116 iiied by the geueral incidents of an international war. It was waged be- tween people occupying different territories, separated from each other by well-defined lines. It attained proportions seldom reached in the wars of modern nations. Armies of greater magnitude and more formidable in their equipments than any known in the present century were put into the field by the contending parties. The insurgent States united in an or- ganization known as the Confederate States, by which they acted through a central authority guiding their military movements ; and to them bel- ligerent rights were accorded by the federal government. This was shown in the treatment of captives as prisoners of war, the exchange of prisoners, the release of officers on parole, and in numerous arrangements to mitigate as far as possible the inevitable suft'erings and miseries attend- ing the conflict. The people of the loyal States on the one hand, and the people of the Confederate States on the other, thus became enemies to each other, and were liable to be dealt with as such without reference to their individual opinions and dispositions. Commercial intercourse and correspondence between them were prohibited, as well by express enact- ments of Congress as by the accepted doctrines of public law. The enforce- ment of contracts previously made between them was suspended, part- nerships were dissolved, and the courts of each belligerent were closed to the citizens of the other, and its territory was to the other enemies' coun- try. When, therefore, our armies marched into the country which ac- knowledged the authority of the Confederate government, that is, into the enemy's country, their officers and soldiers were not subject to its laws, nor amenable to its tribunals for their acts. They were subject only to their own government, and only by its laws, administered by its author- ity, could they be called to account. As was observed in the recent case of Coleman vs. Tennessee, it is well settled that a foreign army, permitted to march through a friendly country, or to be stationed in it by authority of its sovereign or government, is exempt from its civil and criminal jurisdiction. The law was so stated in the celebrated case of The Ex- change, reported in the seventh of Cranch. Much more must this exemp- tion prevail where a hostile army invades an enemy's country. There would be something singularly absurd in permitting an officer or soldier of an invading army to be tried by his enemy, whose country it had in- vaded. The same reasons for his exemption from criminal prosecution apply to civil proceedings. There would be as much incongruity, and as little likelihood of freedom from the irritations of the war, in civil as in criminal proceedings prosecuted during its continuance. In both in- stances, from the very nature of war, the tribunals of the enemy must be without jurisdiction to sit in judgment upon the military conduct of the officers and soldiers of the invading army. It is difficult to reason upon a proposition so manifest ; its correctness is evident upon its bare an- nouncement, and no additional force can be given to it by any amount of statement as to the proper conduct of war. It is manifest that if officers or soldiers of the army could be required to leave their ;posts and troops. 117 upon the snmiuons oi' cvory local tribunal, on pain of a.jndgment by tic- fault against llicni. which at the termination of hostilities could be en- forced hy suit in tlicir own States, the elliciency of the army as a hostile force would be utterly destroyed. Nor can it make any ditiference with what denunciatory epithets the comphiininji Jtarty may characterize their conduct. If su6'h epithets could confer jurisdiction they would always be su])plied in every variety of form. An iniiabitant of a boraVjarded city would have little licsitation in declaring the bombardment unneces- sary and cruel. Wouhl it be pretended that he could call the command- ing general, who ordered it, before a local tribunal to show its necessity or be mulcted in damages? The owner of supplies seized, or property destroyed, wonld have no difficulty, as human nature is constituted, in believing and affirming that the seizure and destruction were wanton and needless. All this is too plain for discussion and will be readily admitted. "Nor is the po.sition of the invading belligerent affected, or his relation to the local tribunals changed, by his temporary occupation and domina- tion of any portion of tlie enemy's country. As a necessary consequence of such occupation and domination, the political relations of its people to their former government are, for the time, severed. But tor their pro- tection and benefit, and the protection and benefit of others not in the military service ; or, in other word.s, in order that the ordinary pursuits and liusiness of society may not be unnecessarily deranged, the munici- pal laws, that is, such as affect ]3rivate rights of persons and property, and provide for the punishment of crime, are generally allowed to con- tinue in force, and to be jidministered b}^ the ordinary tribunals as they were administered before the occupation. Tliey are considered as con- tinuing unless suspended or superseded by the occupying belligerent. But their continued enforcement is not for the protection or control of the army or its officers or soldiers. Tliese remain subject to the law's of war, and are responsible for their conduct only to their own government, and the tribunals by which those laws are administered. If guilty of Avanton crueltj' to persons, or of unnecessary spoliation of propert.y, or of other acts not authorized bj- the laws of war, the}' ma}' be tried and pun- ished by the military tribunals. They are amenable to no other tribunal, except that of public opinion, which, it is to be hoped, will always brand with infamy all who authorize or sanction acts of cruelty and oppression. " If, now, we apply the views thus expressed to the case at bar, there will be no difficult}- in disposing of it. The condition of New Orleans and of the district connected with it, at the time of the seizui-e of the property of the plaintiff and the entry of the judgment against Dow, was not that of a country restored to its normal relations to the Union, by the fact that they had been captured by our forces, and w^ere held in subjection. A feeling of intense hostility against the government of the Union prevailed as before with the people, which was ready to break out into insurrection upon the appearance of the enemy in force, or upon the withdrawal of our troops. The country was under martial hnv; and its 118 armed occupation gave no jurisdiction to the civil tribunals over the offi- cers and soldiers of the occupying army. They "were not to be harassed and mulcted at the complaint of any person aggrieved by their action. The jurisdiction which the district court was authorized to exercise over civil cases between parties, by the proclamation of General Butler, did not extend to cases against them. The third special plea alleges that the court was deprived by the general government of all jurisdiction except such as wa.s conferred by the commanding general, and that no jurisdic- tion over persons in the militarj^ service for acts performed in the line of their duty was ever thus conferred upon it. It was not for their control in any way, or tiie settlement of complaints against them, that the court was allowed to continue in existence. It was, as already stated, for the jjrotection and benefit of the inhabitants of tlie conquered country and otliers there not engaged in the military service. " If private property there was taken by an officer or a soldier (jf the occupying army, acting in his military character, when, by the laws of war, or tlie proclamation of the commanding general, it should have been exempt from seizure, the owner could have complained to that com- mander, who might have ordered restitution, or sent the otfending party before a military triljunal, as circumstances might have required, or he (•;)uld li:i\(' luad recourse to the government for redress. But there could be no doubt of the right of the army to appropriate any property there, although belonging to i^rivate individuals, which was necessary for its support or convenient for its use. This was a belligerent right, which was not extinguished by the occupation of the country, although the necessity for its exercise was thereby lessened. However exempt from seizure on other grounds private property there may have been, it was always subject to l)e appropriated wlien re(|uired ))y the necessities or convenience of the army, thougli the owner of property fallen in such case may have had a just cl dm against th*» government for indemnity. "This doctrine of non-liability to the tribunals of the invaded country for acts of warfare is as applicable to members of the Confederate army when in Pennsylvania, as to members of the National army when in the insurgent States. The officers or soldiers of neither army could be called to account civilly or criminally in those tribunals for such acts, whether those acts resulted in the destruction of property or the destruc- tion of life; nor could they be required by those tribunals to explain or justify their conduct upon any averment of the injured party that the acts complained of were unauthorized by the necessities of war. It fol- lows that, in our judgment, the District Court of New Orleans was with- out jurisdiction to render the judgment in question, and the special pleas in this case constituted a perfect answer to the declaration. — (See People vs. Coleman, 97 U. S., 509; Ford vs. Surget, Id., C05 ; also LeCaux vs. Eden, 2 Doug., 594 ; Lamar vs. Browne, 92 U. S., 197, and Coolidge vs. Guthrie, 2 Amcr. Law. Reg., N. S., 22.) "We fully agree with the presiding justice of the circuit court in the doctrine that the military should always be kept in subjection to the 119 laws of the country to \vhicli it l>clon.tis. and tliat he is no friend to the liepnblic who advocates tiic contrary. The cstalilisli.d ])rinciple of every free people is, that the law shall alone govern; and to it the military must always yield. "We do not coutrovert tlie doctrine of Mitchell vs. Har- mony ; on the contrary, we approve it. But it has uo application to the case at l)ar. The trading for which the seizure was there made had been permitted by the Executive Department of our government. The ques- tion here is. what is the law which governs an army invading an enemy's country? It is not the civil law of tlie invaded country; it is not the civil law of the conquering country; it is military hiw — the law of war — and its supremacy for the protection of the oflicers and soldiers of the army, when in service in the tield in the enemy's country, is Jis essential to the efficiency of the army as the supremacy of the civil law at home, and in. time of peace, is essential to the preservation of liberty." Protection of Sealed Matter in the Mail from In- spection BY Officials of the Post-Office. How far inatttM' in the mail can bo protected iVoin in- spection by officials of the post-office, and at the same time the mail prevented from being the vehicle of circu- lating publications having a tendency to corrupt the pub- lic morals, has been for many years the subject of frequent discussion and of much conflict of opinion. It was the occasion of an earnest debate in the Senate of tbe United States in 1886. President Jackson, in his annual message of the previous year, had referred to the attempted circu- lation through the mail i^f inflammatory appeals, addressed to the passions of the slaves, in prints, and in various pub- lications, tending to stimulate them to insurrection, and suggested to Congress the propriety of passing a law pro- hibiting, under severe penalties, such circulation of •' in- cendiary pubhcations" in the Southern States. In the Senate, that portion of the message was referred to a select committee, of which Mr. Calhoun was chairman ; and he made an elaborate report on the subject, in which he con- tended that it belonged to the States, and not to Congress, to determine what is and what is not calculated to disturb 120 their security, and tliat to hold otherwise would-be fatal to the States; for if Congress might determine what papers were incendiary, and as such pr()liil)it their circulation through the mail, it might also determine what were not incendiary and enforce their circulation. Whilst, there- fore, condemning in the strongest terms the circulation of the publications, he insisted that Congress had not the power to pass a law prohibiting their transmission through the mail, on the ground that it would abridge the liberty of the press. " To umkrstand," he said, " more fully the extent of the control which the right of prohibiting circula- tion through the mail would give to the government over the press, it must be borne in mind that the power of Con- gress over the post-office and the mail is an exclusive power. It must also be remembered that Congress, in the exercise of this power, may declare any road or navigable winter to be a post-road; and that, by the act of 1825, it is provided ' that no stage, or other vehicle which reguharly performs trips on a post-road, oi- on a road parallel to it, shall carry letters.' The same provision extends to pack- ets, l)oats, ov other vessels on navigable waters. Like pro- vision may l)e extended to newspapers and pamphlets, which, if it be admitted that Congress has the right to dis- criminate in reference to their character, what paper shall or what shall not be transmitted by the mail, would subject the freedom of the press, on all subjects, political, moral, and rehgious, completely to its will and pleasure. It would, in fact, in some respects, more effectually control the freedom of the press than any sedition law, however severe its pen- alties." Mr. Calhoun, at the same time, contended that when a State had pronounced certain publications to be dangerous to its peace and prohibited their circulation, it was the duty of Congress to respect its laws and co-oper- ate in their enforcement; and whilst, therefore, Congress could not prohibit the transmission of the incendiary doc- nments through the mails, it could prevent their dehvery by the postmasters in the States where their circulation was 121 forhiddcii. Tn the discussion upon the bill reported by liini, similar views against the power of Congress were ex- pressed by other Senators, who did not concur in the opin- i,)n that the delivery of pa[)ci-s could he pi'cvcnted when their transmission was permitted. The ([Ucstion tlius i)rcscnted came ])efore the Suj)i'eme Court of the TTnited States at the October tei-m of 1877, in Ex-parte Jackson. A section of the Revised Statutes provided that " no letter or circuhir concerning lotteries, so-called gift concerts, or other simi hu- enterprises oHering prizes," should be carried in tlie mail, and declared that any person knowingly depositing any tiling in the mail to be conveyed in violation of this section should be pun- ished by a fine of from one to five hundred dollars, with costs of prosecution. Under this section one Jackson was indicted in the Circuit Court of tlie United States for the Southern District of Xew' Yoi-k, for depositing in the mail at ]*s'ew York, to lie conveyed to another person, a circular concerning a lottery ottering prizes. Upon being arraigned he stood mute, refusing to plead, and thereupon a plea of not guilty was entered in his behalf .by order of the court. He w^as subsequently tried, convicted, and sen- tenced to pay a fine of one hundred dollars, witli the costs of the prosecution, and to be committed to the county jail until tlie fine and costs were paid. Upon his commitment he presented to the Supreme Court a petition, alleging, among other things, that he was illegally restrained of his liberty, as the court had no jurisdiction to punish for the matters charged, because the act of Congress was uncon- stitutional and void. He therefore prayed for a Avrit of habeas corpus to be directed to the marshal to liring him before the court, and a writ of certiorari to lie directed to the clerk of the circuit court to send up the record of his conviction, that the court might inquire into the cause and legality of his imprisonment. Accompanying the petition, as exhibits, w-ere copies of the indictment and of the rec- ord of conviction. The court, instead of ordering that the 122 writs issue at once, entered a rule, the counsel of the peti- tioner consentino- thereto, that cause be shown, on a day designated, why the writs should not issue as prayed, and that a co[)y of tlie rule l)e served on the Attorney-General of the United States, the marshal of the Southern District of Xew York, and the clerk of the Circuit ('ourt. On the return (hiy the validity of the act was argued. The court decided the act to be valid and refused the writs, drawing a distinction, in the right of inspection by officials of the post-office, between sealed matter and unsealed matter, and holding that sealed matter in the mail is equally protected from unreasonable search as papers in one's household. In giving the opinion of the court. Judge Field said as follows : " The power vested in Congress 'to establish post-roads and post-offices ' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation prescribing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. AVhat should be mail- able has varied at different times, changing with the facility of trans- portation over the post-roads. At one time only letters, newspapers, magazines, pamphlets, and other printed matter, not exceeding eight ounces in weight, were carried ; afterwards books were added to the list ; and now small packages of merchandise, not exceeding a prescribed weight, as well as books and printed matter of all kinds, are transported in the mail. The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the trans- portation of the mail. In their enforcement a distinction is to be made between different kinds of mail matter ; between what is intended to be kept free from inspection, such as letters and sealed packages subject to letter postage ; and what is open to inspection, such as newspapers, maga- zines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail 123 are as fully jjuurded from examination and inspection, except as to thetr outward form and weijiht, as if they were retained by the parties for- wardinji tliem in their own domiciles. The constitutional guaranty of the risrht of tlie people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspec- tion. wliere\(T (hey may be. Whilst in the mail they can only lie opened and examined under like warrant, issued ujion similar oath or atlirma- tion, particularly describing the thing to l)c seizeil, as is re(|uire(l when papers are subjected to search in one"s own household. No law of Con- gress can i)lace in the hands of otiicials connected with the jiostal service any autlu)rity to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to th(> great principle embodied in the fourth amendment of the Con.stitution. "Nor can any regulation l)e enforced against the transportation of printed matter in the mail, which is open to examination, so as to inter- fere in any manner with the freedom of the press. Liberty ol' circulating is as essential to that freedom as liberty of ])ublishing; indeed, without the circulation the publication would be of little \alue. If, therefore, printed matter be excluded from the nuiils, its transportation in any other way cannot be forbidden by Congress.'' ReiVi'1-iiiu' to the views expressed l\y Mr. Callioun and other Senators in the Senate in 18o(), stated ahove, the Judge said as follows : " It is evident that they were founded upon the assumption that it was comi)etent for Congi'ess to prohibit the transportation of iiew.spapers and pamphlets over postal routes in any other way than by mail ; and of course it would follow that if, with sirch a prohibition, the transportation in the nuiil could also be forbidden, the circulation of the documents would be destroyed and a fatal blow given to the freedom of the press. But we do not think that Congress possesses the power to prevent the transportation in other ways, as merchandi.se, of matter which it excludes from the mails. To give etficiency to its regulaticms and prevent rival po.stal sj's- tems, it may perhaps prohibit the carriage by others for hire over postal routes of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted — con- sisting of letters, and of newspapers and pamphlets when not sent as mer- chandise — but further than this its power of prohibition cannot extend. " Whilst regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters or sealed packages .subject to letter postage, without warrant issued- ui^on oath or affirmation, in the search for prohibited matter, they may be en- forced irpon competent evidence of their violation obtained in other waj'S, as from the parties receiving the letters or packages, or from agents de- 124 positing them in the post-office, or others cognizant of the facts. And as to objectionable print«l matter, which is ojieu to examination, the regu- lations may be enforced in a similar way, by the imposition of penalties for their violation through the courts; and in some cases, by the direct action of the officers of the postal service. In many instances those offi- cers can act upon their own inspection, and from the nature of the case must act Avithout other proof, as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises, and no principle is violated, in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by every one and is in its nature conclusive." The Fourteenth Amendment and the Slaughter-house Cases. — Equality of Right in the pursuit. of any Law- ful Trade or Avocation Maintained. The institution of slavery, with the irritations and re- proaches to which it gave rise hetween the States, where it existed, and the free States, was the cause of the civil war. Its extinction was the natural consequence of the success of the forces of the Tnion. The Constitutional amendment, which destroyed it, declared that "neither slavery nor involuntary servitude, except as a punishment for crime, whereof tlie party shall have heen duly con- victed, shall exist within the United States or any place subject to their jurisdiction." It thus not only abolished the existing institution, but forever prohibits its future es- tabhshment. And by its comprehensive language it em- braces not merely slavery of the African race, as it pre- viously existed, but involuntary servitude in any form — peonage, villanage, serfage, and all other modes by which man can be subjected to compulsory lal)or for the pleasure, proiit, or caprice of others. It was intended to make every one within the jurisdiction of the IJnited States a free man, and as such to allovv him to pursue his happiness by the ordinary avocations of life upon the same terms and conditions as others. ■\■2r^ To give etr'eet to this purpcise of the jiiiiciKliiuMit, (\n\- gress, soon after its adoption, passed the eivil rights act. The amendment was ratilied on the ISth of heeemher 18()o, tliar is, the oHii'ial proclamation of its ratification was made on that day. In April of tlie followiiigveai- the ci\il rights act was passed. Its first section is as follows: ^' />V if eioicted, t)'T,, That all persons born in the Tnited States and not subject to any foreign powder, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizens, of every race and color, without regard to an}' previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right, in every Stiite and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to fidl and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be sub- ject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding."" The other sections of the act are designed to secure the rights thus declared.* The bill for this act was earnestly discussed in Congress and its validity was violently assailed. On the one hand it was contended that the amendment was only designed to do way wuth slavery of the colored race, and, except as it affected that institution, it left all the powers of the State untouched, with a right in its legislation to discrim- inate against persons of that race and others. On the other hand it was insisted that the amendment was intended to secure to all persons equality of civil rights. Senator Trumbull drew the bill and introduced it into the Senate, and in opening the discussion upon it in that body stated * 14 Statutes-at-Large. '11. 12G that the object of the measure was to ^tjive efrect to the declaration of the ainendment, ol)sei-ving that there was very httle importance in the general declaration of ab- stract truths and principles unless they could be can-ied into etiect; — unless the persons who were to be alfected by them had some means of availing themselves of their benetits ; that the first section of the bill proposed declared what were the rights of all persons; that the other sections contained the necessary macljiuery to give effect to tbeiii; and that if Congress liad not authority to give practical effect to the great declaration that slavery shall not exist in the United States, by a bill of that kind, nothing would be accomplished by the adoption of tlie constitutional amendment. The Senator then referred to the clause of the Consti- tution which declares that '' the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," and asked, " What rights are secured to the citizens of each State under that provision ? " And he answered, " Such fundamental rights as belong to every free person; " citing from Story the statement that the in- tention of this clause was to confer on citizens, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances. He also quoted with special approval the language of Judge Washington, in Corfield vs. Coryell, that l)y the expression privileges and immunities of citizens, as here used, were ULeaiit those privileges and immunities which are in tlieir nature fundamental, and belong of right to the citizens of all free governments. He added that the people of the insurgent States had not regarded the col- ored race as citizens, and on that principle many of their laws making discriminations between the whites and the colored people were based, and said : " But it is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any ques- 127 tiou iil.oiit il, it would l>c settled l.v tlie ]i:issn,uv of a l:nv declaring- all [.ersons horn in the Tnited States to l»e citi- zens tliei-eol'. That this hill [)ro|)oses to do. Then they will he entitled 'to the riii'hts ol' t'itizens. And what ai'e they ? The ;4reat rundamental ri,u-hts set forth in this hill: the fi^-ht to ae([nire [)i'operty, the riii'ht to u'o and eonie at i)leasnre, the I'iulit to t-n!oi\H' riiidits in the eoinis, to make contracts, and to inherit and dispost' of jiroperty. These are the very rights that are set forth in this hill as a[)per- taining to every freeman." Otfier Senators ex[»ressed similar views in advocating the measure. The l)ill was passed in hoth Ilonses of Con- gress In^ a hirge ma.jorit_y, hut it was vetoed hy the I^-esi- dent; it was then passed over tlie veto hy tlie required two-tliirds vote. But notwithstanchng its [lassage by a hirge majority of both Houses, and over the veto of the President, grave doubts of its constitutionahty were enter- tained by men of distinguished al>iHty, many of wdiom were not hostile to its object. In some of the State courts also its validity was denied; and in others, able judges dissented from judgments recognizing its obligation. Complaints also were made that, notwithstanding the amendment abolishing slavery and involuntary servitude, except for crime, the freedmen in some of tlie insurrec- tionary States were subjected to burdens and disabilities in the acquisition and enjoyment of property and in the pursuit of happiness, which to a great extent destroyed the value of their freedorh. Hostile sentiments were also al- leged to exist towards citizens of the Xorth seeking busi- ness or residence among them, and towards their own cit- izens who adhered to the government of the Union during the war. Xo doubt there was much exaggeration in the complaints of these things, but they w'ere nevertheless be- lieved to be W'Cll founded. To remove the cause of them, and to obviate at the same time the grounds of objection to the validity of the civil riglits act, or to similar legisla- tion, and prevent hostile and discriminating legislation 128 by any State a^'ainst citizens of tlie United States, and thus secure to all persons within the jurisdiction of every State the equal protection of its hnvs, tlie fourteenth amendment was brought forward and adopted. This pur- pose was avowed in all the discussions of the measure in both Houses of Congress. A very instructive and able article upon this subject, by "William L. Royall, Esq., of Richmond, Va., is found in the number of the Southern Law Review for October and November of 1878, in which he shows by citations from the remarks of every one who participated in the debate, that it was the purpose of its framers and advocates to obviate objections to legislation similar to that contained in the civil rights act. At the session of Congress following the adoption of the amendment aboHshing slavery and involuntary servitude, propositions for further amendments were numerous. All. of them were sent to a committee of the two Houses on Reconstruction, consisting of fifteen, of whom Mr. Fes- senden was chairnum on the part of the Senate, and Mr. Thaddeus Stevens on the part of the House. That com- mittee reported on the 30th of April, 186ti, as the result of their deliberations, in the form of a joint resolution, an amendment to the Constitution. As it came from the committee the first section of the proposed amendment was as follows : " No State shall make or enforce auy law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive auy ijerson of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal pro- tection of the laws." The second section provided the basis of representation; the third declared that no person who had voluntarily aided the late insurrection should have tlie right to vote for representatives in Congress, or for electors for Presi- dent and Vice-President, until July 4, 1870 ; the fourth prohibited the payment of the Confederate debt; and the fifth provided that Congress should have power to en- 129 t fovce tlio provisions of llio article ]>_v :i])])ropriato leii'is- latioii. The resolution was first hroiii:.'!!! forward in the Itonso, the Senate awaitini;: its action. The [•riiu'i]>al (k^l)afe was on the third section, which was not thon^'lit to hi' sulii- eiently jyiniitive. it, liowever, was ado[>ted without ahera- tion. Mr. Stevens o[)ene(l the discussion and said : "The lirst section prohibits the States Iroiu abridging the privileges and immnnities of citizens of the United States, or unhiwfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the 'equal' protection of the laws. I can hardly be- lieve tluit any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amend- ment supplies that defect, and allows Congress to correct the unjust legislation of the St{ites,so far that the law wliich oi)erates upon one man shall operate equally upon all." Mr. Fink, a Democrat, followed ]Mr. Stevens, and made the point that the first section was, in suhstance, the civil rights hill which Congress had just passed over the Presi- dent's veto; and that bv voting to so amend the Constitu- tion of the United States as to put the civil rights l)ill into it was the same thing as to admit that the civil rights l)ill was Unconstitutional. To this Mr. Garfield replied : " I am glad to see this first section here, which purposes to hold over every American citizen, without regard to color, the protecting shield of law. The gentleman who has just taken his seat undertakes to show that because we propose to vote for this section we therefore acknowledge that the civil rights bill was unconstitutional. He was anticipated in that objection by the gentleman from Pennsylvania (Mr. Stevens). The civil rights bill is now a part of the law of the land. But every gentle- man knows it will cease to be a part of the law whenever the sad moment arrives when that gentleman's party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, -where no storm of passion can shake it, and no cloud can obscure it. For this reason, and not because I believe the civil rights bill unconstitutional, I am glad to see that first section here." 9 130 Mr. Thayer, a Ropnl)lican, in tlio course of his remarks said : "With regard to the first section of the proposed amendment to the Constitution, it simply brings into the Constitution what is found in the hill of rights of every State of the Union ; as I understand it, it is hut incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law, and that not, as the gentleman from Ohio (Mr. Fink) suggested, because, in the estimation of this House, that law cannot be sustained as constitutional, but in order, as was justly said by the gentleman from Ohio who last addressed the House (Mr. Garfield), that that provision, so necessary for the equal ad- ministration of the law, so just in its operation, so necessary for the pro- tection of the fundamental rights of citizenship, shall be forever incorpo- rated in the Constitution of the United States." The language of all the other speakers in the House was to the sa.me purport. The first section of the pro- posed amendment passed tlie House as it came from the committee, and it thus went to the Senate. The health of Mr. Fessenden, the chairman of the committee of the Senate, disabled him from taking charge of the resolution, and it was entrusted to the custody of Mr. Howard, Sena- tor from Michigan. In his opening speech, explaining the various sections and defining as far as he was able the privileges and immunities of a citizen of the United States, comprising as well those which he had as a citizen of the State as those which he had as a citizen of the United States, he said : "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to re- spect their fundamental guarantees." It is to be observed that the resolution, as reported from the committee and discussed in the House and in the Sen- ate, did not have the clause defining citizenship of the United States. It opened with the provision " Xo State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States," and it is plain that no one who either fiivored or opposed the amendment undei'stood that in that form it was de- signed to protect only the rights of citizens of the United 131 States, and not the rights of citizens of the State. The provision deiining citizenship of the Tnited States was offered hy the Senator from Michigan, after the resohition had passed the House and hceii undrr discussion in the Senate for several (hiys. [n the House, Mr. IJinghani, (»!' Ohio, had contended that the ci\il rights hill was uncou- stitutional, ai'guing that the rights of citizens whieh it un- dertook to ])rotect were left hy the Constitution to the pro- tection of the States, and that Congress had no right to legislate on the suhject. Attention was also called to the fact that the act nuule negroes citizens of the United States, whereas the Supreme Court had decided in the Dred Scott case that no person of African descent could become such a citizen. The clause as to citizenship was added to the proposed amendment in order to obviate these objections. Xo one intimated during the wdiole debate that its purpose was to qualify in any respect the subsequent general lan- guage of the amendment. There w^as a perfect unanimity of opinion between Sena- tors and Representatives, Democrats and Republicans, that the purpose of the first section was to incorporate the civil rights bill into the Constitution, or rather to authorize leg- islation of a similar character and thus obviate the objec- tions that had been made to that bill on account of the supposed limitation of the amendment abolishing slavery and the Dred Scott decision. The Republicans contended for the adoption of the amendment l)ecause such was its purpose and would be its effect ; the Democrats opposed it for the same reason.. All agreed in declaring its pur- pose; and there was no cUfierence in their understanding of it after the declaration of citizenship was added to the amendment from what it was previously. Xo one sup- posed that this addition limited or changed the character of rights which were to be protected. The amendment, in its present form, passed both Houses of Congress by large majorities, and was ratified hy the States on the 28th of July, 1868; that is to say, on that day the proclamation of its ratification was made. 132 The first cases linder this amendment which came he- tore the Supreme Court grew out of an act of the Legis- lature of the State of Louisiana, entitled "An act to protect the healtli of the city of l^ew Orleans, to locate the stock- landings and slaughter-liouses, and to incorporate ' The Crescent City Live-Stock Landing and Slaughter-House Company,' " which was approv^ed on the 8th of March, 1869, and went into operation the 1st of June following. The act created the corporation mentioned in its title, which was composed of seventeen persons designated by name, and invested them and their successors with the powers usually conferred upon corporations, and certain special and exclusive privileges. It first declared that it sliouhl not be lawful, after the 1st day of June, 1869, to land, keep, or slaughter any animals, or to have, keep, or establish any stock-landing, yards, slaughter-houses, or abattoirs within the city of Xew Orleans, or the parishes of Orleans, Jeflerson, and St. Ber- nard, except as provided in the act, and imposed a penalty of $250 for each violation of its provisions. The act then authorized the corporation to establish and erect, within the parish of St. Bernard and the corporate limits of Xew Oi'leans, at a designated place, (which was on the river below the occupied portions of the city,) wharves, stables, sheds, yards, and buildings necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals, and provided that animals destined for sale or slaughter in the city of New Orleans or its environs, should be landed at the wharves and yards of this company and be there yarded, sheltered, and protected, if necessary; and that the company should be entitled to certain prescribed fees for the use of its wharves and for each animal landed, and be authorized to detain the animals until the fees were paid, and if not paid within fifteen days to take proceedings for their sale. Every person violating any of these provisions, or landing, yard- ing, or keeping animals elsewhere was subjected to a fine of $250. - - ■ The act tlien required tlio eoriioration to erect a ^I'aiul slangliter-lionse ol' .^uHicient (liineiisions to accommodate all butchers, in wliieh tive hundred auiiiuds might be sUiughtered a day, with a sullieient uundier of sheds and stal)h's for the stock I'eceived at the [)ort of New Orhnins, and provided that when these buihlings were completed and thrown open for use, public notice should be given for tiiirty days, and within that time all other stock-land- ings and slaughter-houses within the pai'ishes of Orleans, Jetlerson,and kSt. J3ernard were to he closed, and it should no longer be lawful to slaughter animals in them, the meat of which was destined for sale within those parishes. The act then [irovided that the company should receive for every animal slaughtered in its buildings certain pre- scribed fees, besides the head, feet, gore, and entrails of all animals, except of swine. Other provisions of the act required the inspection of the animals before they were slaughtered. The exclusive privileges mentioned were granted for the period of twenty- five years. The language of the act was that the corpora- tion should 'Hiave the soJe rovisid upon the conijiany, can be said to destroy the bu.siness of the butcher, or seriously interfere with its pursuit. The l)ower here exercised by the Legislature of Louisiana is. in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may noir l)e ([uestioned in some of its details," lie tlu'ii cites from Kent and Sliaw as to tlie extent of that power, and continues : " This power is, and must be, from its \evy nature, incapable of any A-ery exact definition or limitation. Upon it depends the security of so- cial order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. ' It extends," says another eminent judge, 'to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State ; . . . and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity' of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.' '' To tliis proposition the minority of tlie court rephed, speaking through Judge Field : " That power [the police power of the State] undoubtedly extends to all regulations aflfecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional pro- hibitions or fundamental principles, they cannot be successfully^ assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not ditfcr from the majority of the court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Consti- tution intended to secure against abridgment. 138 " In the law in question there are only two provisions which can prop- erly he called police regulations— the one which requires the landing and slaughtering of animals helow the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When these requirements are complied with the sanitary purposes of the act are accomplished. In all other particulars the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is iu no way promoted. It is plain that if the corporation can, without endangering the health of the public, carry on the business of landing, keeping, and slaughtering cattle within a district below the city embracing an area of over a thousand square miles, it would not endanger the public health if other persons were also per- mitted to carry on the same business within the same district under similar conditions as to the inspection of the animals. The health of the city might require the removal from its limits and suburbs of all build- ings for keeping and slaughtering cattle, but no sijch object could po.ssi- bly justify legislation removing such buildings from a large part of the State for the benefit of a single corporation. The pretence of sanitary regulations for the grant of the exclusive privileges is a shallow one, which merits only this passing notice. "The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, pieviously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested ex- clusively for twenty-five years, for an extensive district and a large pop- ulation, in a single corxjoration, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions. "If e.Kclusive privileges of this character can be granted to a corpora- tion of seventeen persons, they may, in the discretion of the legislature, be equally granted to a single individual. If they may be granted for twenty-five years they may be equally granted lor a century, and in per- petuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter they may be equally granted for the landing and storing of grain and other products of the earth, or for any article of commei'ce. If they may be granted for structures in which animal food is prepared for market they may be equally granted for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privi- leges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld." The great interest, however, manifested in the opinions of the court, both in that of the majority and in those of the minority, ai'ose from the discussion the}' contained as 180 to tlic iniiiort iiiid iiieuuing ol' the inhibition of the foui" tceiith aiiKMuhni'ut. 'VUv majority hohl that the State was antliori^.ed to eon- ler the speeial [»rivik'u-es unless i-esti'aine;! hy that auiend- nient. Its tirst seetion, the only one whieh had any bear- inu' ni>on the question presented, is as lollows : "All per- sons Itoi'u or naturahzed in the Tnited Spates, and 8n1)ject to the juris(hetion thereof, are eiti/AMisof the I'nited States and of the State wherein tfiey resi(h', Xo State shall make or enforee any law whieh shall ahrid_<;'e the [trivi- leges or immunities of citizens of tlu' United States, nor sliall any State deprive any pei'son of life, liberty, or [»rop- erty without due proeess of law, nor deny to any person within its jurisdiction the equal protection of tlie laws." The majority of the court in their opinion first n'ive a history of the three amendments adopted since the war, the thirteenth, fourteenth and fifteenth, and state that their pervading purpose was the freedom of the slave race, the security and firm estahlishment of their freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had tH)rvnerly exercised unlimited dominion over them, and that in any fair and just construction of any section or phrase of the amend- ments it is necessary to keep this pervading purpose in view. They then take up the fourteenth amendment and observe that it opens with a definition of citizenship, not only of the United States, hut of tlie States, and that it recognizes and estahlishes a distinction Ijetween the two. Their language is as lollows: " Not only nmy a mau be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born ur natural- ized in the United States to be a citizen of the Union. " It is quite clear, then, that there is a citizenship of the United States and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. "We think this distinction and its explicit recognition in fiiis amend- ment of great weight in this argument, because the next paragraph of 140 this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assump- tion that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same, "The language is, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of tit e United States.'' It is a little remarkable, if this clause was intended as a protection to the citizen of a State against "the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in (;ontra«listinction to citizens of the United States, in the Aery sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose. " Of the privileges and immunities of the citizen of the United Stales, and of the privileges and immunities of the citizen of the State, and what they respectively are we will presently consider; but we wish to state here that it is only the former which are placed by this clau.se under the protection of the federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protec- tion by this paragraph of the amendment. " If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment." The doctrine advanced in this passage is the special feature o!" the opinion and has been the occasion of dis- cussion and disagreement among judges and members of the profession throughout the countr3^ The majority then consider the meaning attached to the terras "privileges and immunities " contained in the amend- ment and adopt substantially as correct the view expressed by Judge Washington in Cortield vs. Coryell, that they eml)race those rights of citizens which are fundamental in their nature, such as belong to citizens of all free govern- ments; and hold that their protection rests with the States and not with the United States. Their language is as follows : " It would be the vainest show of learning to attempt to prove by cita- tions of authority, that up to the adoption of the recent amendments no claim or pretence was set up that those rights depended on the federal gov- ernment for their existence or protection, beyond the very few express 141 limitationa wliich the federal ("onstitntion imposed nimn the States — sueh, for instanee, as the prohibition against ex pont farto laws, bills of at- tainder, and laws impairing the obligation of eontracts. Bnt with th»5 exception of th(>se and a few other restrietiona, the entire domain of the ])rivileges and immunities of citizens of the States, as above delined, lay ■within the constitutional and legislative jiower of the States, and with- out that of the federal government. Was it the purpose of the four- teenth aineiwlment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and imuuniitics of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclu- sively to the States ? "All this and more must follow, if the proposition of the plaintiffs in error be sound, for not only are these rights subject to the control of Con- gress, whenever in its discretion any of them are supposed to b§ abridged by State legislation, but that body may also pass laws in advance, limit- ing and restricting the exercise of legislative power by the States, in their most ordinary and most useful functions, as in its judgment it may think proper on all such subjects. And still further, such a construction fol- lowed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor npon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights as they existed at the time of the adoption of this amendment." The passage here given is generally cited a.-^ -showing the evil consequences of any other construction than the one adopted. The majority then refer to such [)rivileges and immunities of citizens of the United States as they suppose are intended, when the States are iuhihited from making or enforcing any law abridging them. These are the right of the citizen to come to the seat of government, to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to eno-ai-'e in administerino: its functions, to have free access to its seaports, to demand the care and protection of that goverinnent over liis life, liberty, and property on the high seas, or within the juris- diction of a foreign government; the right to peaceably assemble and petition for redress of grievances; the right 142 to use the navio-al.le waters of the United States, and oilier similar rights. To these positions of the majoir*y of the court several objections naturally arise. In the first place, if the inhibition upon the States does not refer to the fundamental rights of citizens, such as be- long to the citizens of all free governments, such as are expressed in the Declaration of Independence as the in- alienable rights of men, it is dithcult to see what was ac- complished by its insertion in the amendment. The priv- ileges and immunities which citizens previously enjoyed under the Constitution and laws of the United States, no State could lawfully interfere with. Any attempted in- terference with them could have l)eeu successfully resisted through the courts. The parties who drafted and advo- cated the fourteenth amendment thought that they would obtain thereby additional security for the rights of a citi- zen of the United States, not that they were merely con- tending for words which could have no eihcacy beyond provisions already in force. In the second place, the construction .asserted entirely io-nores the avowed purpose of the framers of the amend- ment, as stated in the discussion of the measure in both Houses of Congress. There w^as an entire concurrence of views on the part of all persons — Democrats and Repub- licans, Senators and Representatives — that the object of the amendment was to obviate the objections which had been urged to the validity of the civil rights act, or rather to legislation of a similar character. That act had stated in express terms that citizens of the United States had the right -Ho make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all the laws and proceedings for the secui'- ity of person and property." These were rights which, according to the interpretation of the majority, are now dependent for their protection upon the States alone. 143 Tliongli the (k'l)iites in Conii'ross cannot be w^ed to qualify tlie meaning of lano;naii"o, which i.s not snsceptil)lo of niis- constrnction, they can be resorted to in oi'diM- to sliow the general i)ni"[)ose of the framers of legishition, an on its passage. Willi pri\ ih'ges and im- munities thus designated or implied, no State couhl ever have interfered l)y its laws, and no new con.stitutional provision was required to inhil)it such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that char- acter. But if the amendment refers to the natural and inalienahle rights which helong to all citizens, the inhihiti(»n has a profound signiticauce and consequence. "What, then, are the privileges and immunities whicli are secured against abridgment hy State legislation ? " In the first section of the civil rights act Congress has given its inter- pretation to these terms, or, at least, has stated some of the rights which, in its judgment, these terms include ; it has there declared that they in- clude the right ' to make and enforce contracts, to sue, he parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceed- ings for the security of person and property.' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately. I should say, to obviate objections to legislation of a similar character, extending the protectmn of the national government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act, under the belief that what- ever doubts may have previously existed of its validity, they were re- moved Iw the amendment.* '"The terms, privileges and immunities are not newin the amendment : they w'cre in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that 'the citizens of each State shall be entitled to all privileges and immu- nities of citizens in the several States,' and they have been the subject of frequent consideration in judicial decisions. In Corfield vs. Coryell,t Mr. Justice Washington said he had ' no hesitation in confining these ex- pressions to those privileges and immunities which were, in their nature, fundamental ; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several * May 31st, 1870; 16 Stat, at Large, 144. t 4 Washington, Cir. Ct., 380. 150 States which compose the Union, from the time of their becoming free, independent, and sovereign ;' and, in considering what these fundamen- tal privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be 'all comprehended under the following general heads : protection by the government ; the enjoyment of life and liberty, with the right to acquire and possess prop- erty of every kind, and to pursue and obtain happiness and safety, sub- ject, nevertheless, to such restraints as the government may justly pre- scribe for the general good of the whole.' This appears to me to be a sound construction of the clause in question. The privileges and immu- nities designated are those ?y/\;"(?/t 0/ J7"r/7ii &e?o«(7 to the citizens of all free (/oi'i'rnmeiits. Clearly among these must be placed the right to pursue a lawful eniplo^yment in a lawful manner, without other restraint than such as equally atfects all persons. In the discussions in Congress upon the passage of the civil rights act repeated reference was made to this language of Mr. Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declaVed by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great funda- mental rights set forth in the act; and that they were set tbrth 'as appertaining to every freeman.' " The privileges and immunities designated in the second section of the fourth article of the Constitution are, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citi- zens. It is a clause which insures equality in the enjoyment of these rights between citizens of the several States whilst in the same State. " Nor is there anything in the opinion in the case of Paul vs. Virginia'^ which at all militates against these views, as is supposed by tiie major- ity of the court. " The whole purport of the decision [in that case] was, that citizens of one State do not carry with them into other States any special privileges or immunities conferred by the laws of their own States, of a corporate or other character. That decision has no pertinency to the questions in- volved in this case. The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them into other States and are secured by the clause in question, in their enjoyment upon terms of equality with * 8 Wallace, lfi8. 151 citizens of the latter States. This eipialily in one i)ai'tieular was en- forced by this court in the recent case of ^\'a^(l ns. The State of Mary- land, rejK)rte(l in the l-Mli of Wallace. .\ stalute of that State required tile payment of a larger sum from anon-resident trader for a license to enal)]e liini to sell his merchandise in the State, tlian it did of a resident trader, and the court held that the statute in thus discriniinatinn- against the non-resident trader contravened the clause securiuLi, to tlie citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which was an essential incident to his ownership, po.ssessed by the non-resident, was subjected by the statute of Maryland to a greater burdftu than was imposed upon a like privilege of her own citizens. . The privileges of the non-resident were in this i)articular abridged by that legislation. " What the clause in question did for tiie protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in tlie same or in different States. If, under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment the same equality is secured between citizens of the United States. "It will not be pretended that under the fourth article of the Consti- tution any State could create a monopoly in any known trade or manu- factu^e in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manutacture shoes or boots or silk, or the sole right to sell those articles in the State, so as to exclude non-resident citizens from engaging in a similar manufacture or sale. The uon-resi- deut citizens could claim equality of privilege under the provisions of the fourth article with the citizens of the State exercising the monopoly as well as with others, and thus, as respects them, the monopoly would cease. If this were not so, it would be in the power of the State to ex- clude at any time the citizens of other States from participation in par- ticular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them. " Now, what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the protection of every citizen of the United States against the creation of any monopoly what- ever. The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under the guardianship of the natioual authority. All monopolies in any known trade or manu- facture are an invasion of these privileges, ibr they encroach upon the 152 liberty of citizens to acquire property and i)ursiu" happiness, and were held void at common law in the great case ofMonopolies, decided during the reign of Queen Elizabeth. "A monopoly is defined ' to be an institution or allowance from the sovereign power of the State, by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything whereby any person or persons, bodies politic or cor- porate, are sought to be restrained of any freedom or liberty they had be- fore, or hindered in their lawful trade.' All such grants relating to any known trade or manufacture have been held by all the judges of Eng- land, whenever they have come up for consideration, to be void at com- mon law, as destroj'ing the freedom of trade, discouraging labor and indus- try, restraining persons from getting an honest livelihood, and putting it in the power of the grantees to enhance the price of commodities. The deiinition embraces, it will be observed, not merely the sole privilege of buying and selling particular articles, or of engaging in their manufac- ture, but also the sole privilege of using anything by which others may be restrained of the freedom or liberty they previously had in any law- ful trade, or hindered in sucih trade. It thus covers in every particular the possession and use of suitable yar-ds, stables, and buildings for keep- ing and protecting cattle and other aninrals, and for their slaughter. Such establishments are essential to the free and successful prosecution by any Imtcher of the lawful trade of preparing animal food for market. The exclusive privilege of supplying such yards, buildings, and other conveniences for the iirosicution of this business in a large district of country, granted liy the act of Louisiana to seventeen persons, is as much a monopoly as though it had granted to the company the exclusive priv- ilege of buying and selling the animals themselves. It equally restrains the butcliers in the freedom and lilierty they previously bad and hinders them in their lawful trade. "The reasons given for the judgment in the case of Monopolies apply with equal force to the case at bar. In that case a patent had been granted to the plaintiff giving him the sole right to import playing-cards, and the entire traffic in them, and the sole right to make such cards within the realm. The defendant, in disregard of this patent, made and sold some gross of such cards and imported others, and was accordingly sued for infringing upon the exclusive privileges of the plaintiff. As to a portion of the cards made and sold within the realm, he pleaded that he was a haberdasher in London and a free citizen of that city, and as such had a right to make and sell them. The court held the plea good and the grant void, as against the common law and divers acts of Parlia- ment. ' All trades,' said the court, ' as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the commonwealth, and therefore the 153 grant to the plaintiff to iiavc the sole inaking of them is cu/aitisf (he com- mon law and the benefit and tiherty of tlie anhjeet.' "••' Tlie case of Davenant and Hurdis was cited in sui)port of this ])osition. In that case a com- pany of merchant tailors in London, havioLi ixiwer by charter to make ordinances for the better rule and government of the company, so that they were consonant to law and reason, 7n;ide an ordiuiinee that any brother of the society who should have any cloth dressed by a cloth- worker, not being a brother of the society, should put one-half of his cloth to some brother of the same society who exercised the art of a cloth- worker, upon pain of forfeiting ten shillings, 'and it was adjudged that the ordinance, although it had the countenance of a charter, was against the common law, because if ims a(/ain»t the liherfi/ of the subject ; for every subject, by the law, has freedmn mid lilicrti/ to put his cloth to lie dremid by what cloth-worker he pleases, loid cannot be n.-^lrrdncd to ci rtain persons, for that in effect would be a monopoly, and, therefore, such ordinance, by color of a charter or any grant by charter to such effect, would be \ oid.' "Although the court, in its opinion, refers to the increase in prices and deterioration in quality of commodities which necessarily result from the grant of monopolies, the main ground of the decision was their interfer- ence with the liberty of the subject to pursue for his maintenance and that of his family any lawful trade or employment. This liberty is as- sumed to be the natural right of every Englishman. " The struggle of the Engli-sh people against monopolies forms one of the most interesting and instructive chapters in their history. It tinailj' ended in the passage of the statute of 21st James I., by which it was declared ' that all monopolies and all commLssions, grants, licenses, charters, and letters-patent, to any person or persons, bodies politic or corporate, what- soever, of or for the sole buying, selling, making, working, or using of anything ' within the realm or the dominion of Wales, were altogether contrary to the laws of the realm and uttei'ly void, with the exception of patents for new inventions for a limited period, and for printing, then supposed to belong to the prerogative of the King, and for the prepara- tion and manufacture of certain articles and ordnance intended for the prosecution of war. "The common law of England, as is thus seen, condemned all monopolies in any known trade or manufacture, and declared void all grants of special privileges whereby others could be deprived of any liberty which they previously had, or be hindered in their hiAvful trade. The statute of James I., to which I have referred, only embodied the law as it had been previously declared by the courts of England, although frequenth' disre- garded by the sovereigns of that country. " The common law of England is the basis of the jurisprudence of the United States. It was brought to this country by the Colonists, together with the English statutes, and was established here so far as it was ap- * 1 Coke Eept., part XT., p. 86. 154 plieable to their condition. That law and the benefit of such of the English statutes as existed at the time of tlieir colonizAtion, and which they had by experience found to be applicable to their circumstances, were claimed by the Conj^ress of the United Colonies in 1774 as a part of their ' indubitable rights and liberties.'* Of the statutes, the benefit of which was thus claimed, the statute of James I. against monopolies was one of the most important. And when the colonies separated from the mother country, no privilege was more fully recognized or more com- pletely incorporated into the fundamental law of the country, than that every free .subject in the British Empire was entitled to pursue his hap- jjiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the coun- try declared as self-evident truths that the Creator had endowed all men 'with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness ; and that to secure these rights governments are instituted among men.' "If it be said that the civil law aiul not the common law is the basis of the jurisprudence of Louisiana, I answer that tiie decree of Louis XVIth, in 1776, abolished all monopolies of trades and all special privileges of corporations, guilds, and trading companies, and authorized every person to exercise, without restraint, his art, trade, or jsrofession, and such has been the law of France and her colonies ever since, and that law pre- vailed in Louisiana at the time of her cession to the United States. Since then, notwithstanding the existence in that State of the civil law as the basis of her jurisprudence, freedom of pursuit has been always recog- nized as the common right of her citizens. Bat were this otherwise, the fourteenth amendment secures the like protection to all citizens in that State against any abridgment of tlieir coaimun rights, as in other States. That amendment was inteniled to give practical effect to the declaration of 177G of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes. If the trader in Lou- don could plead that he was a free citizen of that city against the en- forcement to his injury of monopolies, surely under the fourteenth amendment every citizen of the United States should be able to plead his citizenship of the Republic as a protection against any similar inva- sion of his privileges and immunities. "So fundamental has this privilege of every citizen to be free from dis- paraging and unequal enactments in the pursuit of the ordinary avoca-. tions of life been regarded, that few instances have arisen where the prin- ciple has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exceptioii of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactment interfering with the privilege of the citizen has been pro- *Journals of Congress, Vol. 1, pp. 28-80. 155 nnuiifed illi'Siil and void. When a case iind(>r the same law under whieh llie present cases have arisen came before the Circuit Court oftlic I'niled States in the District of Louisiana, there was no lusitatiou on the part of tlie court iu(K-cIarin-- tlir law, in its cxchisiv «■ features, lo ))e an invasion of one »[' \]\v fiuulanuMital [)ri\ il-ges of (he eiti/en.-- 'l"lu' presidioij; jus- tice, in delivering the opinion of the court, observed dial it uiiL;lit be dilti- cult to enumerate or define what were the essential privile^es of a eitizin of tlu' L'nitcd States, which a State could Jiot by its laws invade, but that so tar as the question under consideration was concerned, it might be safely .said that ' it is one of the privileges of every American (titizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see tit, without unreasonable regulation or mo- lestation, and without being restricted by any of those unjust, oppressive, and otlious manopolies or exclusive privilege-; which base been con- demned by all free governments.' And again, " there is no more sacred right of citizenship than the right to pursue uiimolestetl a lawi'ul cmploy- nu'ut in a lawful manner. It is nothing nu)ro nor less than the sacred right of labor.'" Otliof cases were cited in support oi" the po.sition of the opinion. The Judge conchided us follows : " In all these cases there is a recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declara- tion that all grants of exclusive privileges, in contravention of this equality, are against common right and void. " This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open Avithout other restrictions than such as are imposed equally upon all othei-s of the same age, sex, and condition. The. State may prescribe such regula- tions for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within tlu- conditions designated, and will conform to the regulations. Tiiis is the fundamental idea upon which our institutions rest, and unless adhered to in the legislation of the country our government will be a republic only in name. The four- teenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right .should be re- spected. How widely this eiinality has been departed from : how en- tirely rejected and trampled upon by the act of Louisiana, I ha\e already shown. And it is to me a matter of profound regret that its validity is * Live vStock, &c., Association vs. The Crescent City, lic, Company, 1 Abbott's U. S. Rep., p. 398. 156 recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.* As stated by the Supreme Court of Connecticut in tlie case cited, grants of exclusive privileges, such as is made by the act iu question, are op- posed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equiil, and impartial laws."}" The Power of the State to Control the Compensation Receivable for the Use of Private Property, and for Services in connection with it. — -The Chicago Ware- house Case. It is a recognized principle under all governments that every one must hold, use, and eiijoj' his property subject to such restrictions as the legislative authority of the State *"The property which every man has in his own labor," says Adam Smith, "as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands ; and to hinder him from em- ploying this strength and dexterity in what manner he thinks proper, witliout injui-y to his neighboi-, is a plain violation of this most .'acred property. It is a nianilcst encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at w hat lie thinks proper, so it hinders the others from eniploying whom they think proper." — (Smith's Wealth of Nations, b. 1, ch. 10, part 2.) In the edict of Louis 16th, in 1776, giving freedom to trades and pro- fessions, prepared by his minister, Turgot, he recites the contributions that had been made by the guilds and trade companies, and says : " It was the allurement of these fiscal advantages undoubtedly that prolonged the illusion and concealed the immense injury they did to industry and their infraction of natural right. This illusion had extended so far that some persons asserted that tlie right to work was a royal privilege which the king might sell, and that his subjects were bound to purchase from him. We hasten o correct this error and to repel the conclusion. God iu giving to man wants and desires rendering labor necessary for their satis- faction, conferred the right to lal)or njion all men, and this property is the first, most sacred and imprescriptible of all." . . . He, therefore, regards it " as the first duty of his justice, and the worthiest act of be- nevolence, to free his subjects from any restriction upon this inalienable right of humanity." t "Civil liberty, the great end of all human society and government, is that state in which each individual has the power to pursue his own hap- piness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws." — (1 Sharsvvood's Blackstone, 127, note 8.) 157 may prcseribo for the good order, pcneo, honltli, and nioi-als of the community, and so as not to iiilciicro willi tlie equal use and enjoyment by otliers of their property. And every one must, also, hold his property' suliject to taxation tor the suiii)ort of government, ov to he ayjpro- priated \'oy publie [>ur[>oses, upon a rt'gular appraisement and payment of its vahie. l)Ut uidess tliere is some spceial privilege conferred by the government in connt'etion witli one's property or with its use, interlerenee with his con- trol over it for any other purpose has not genei'ally been considered in this country, of hUe years, a legitimate sub- ject of legislation. Formerly, in European governments, where, theoretically, all power was in the sovereign, or in legislative assemblies or councils sitting under his sanction, the case was ditferent. Numerous regulations, as to the use of property and the compensation receivalde for its use, were there prescribed by law. In England, also, this was a common thing ; and many acts of legislation have been adopted in this country from the fact that precedents for like legislation have existed there, without considering their propriet}' or validity under our ditlerent system. In the recent case of Munn & Scott against the State of lUinois, this subject was brought to the consideration and judgment of the Supreme Court of the United States, and the decision rendered has attracted unusual attention as indicating a departure fi-oiu what was pre- viously considered to l)e the settled rule in this c;)untry. Munn & Scott were wai'ehousemen in Cliicago, Illinois, engaged in the storage of grain. They had constructed their warehouse and elevator in 1862 with their own means, upon ground leased by them for that purpose; and from that time until the filing of an information against them by the State, they had transacted the business of re- ceiving and storing grain for hire. The rates of storage charged by them were annually established by arrange- ment with the owners of ditferent elevators in Chicago, and were published in the month of .Tanuary. In 1.S70 158 tlie State of Illinois adopted a new eonstitntion. and l)y it ''all elevators or storehouses where grain, or other prop- erty, is stored for a compensation, whether the property stored he kept separate or not, are declared to be public warehouses." In April, 1871, the legislature of the State passed an act to regulate these warehouses, thus declared to be pub- lic, and the warehonsing and inspection of grain, and to give effect to this article of the constitution. By that act, public warehouses, as defined in the constitution, were di- vided into three classes, the first of which embraced all warehouses, elevators, or granaries located in cities having not less than one hundred thousand inhabitants, in which grain was stored in bulk, and the grain of different owners was mixed together, or stored in such manner that the identity of difi'erent lots or parcels could not be accurately preserved. To this class the warehouse of Munn & Scott belonged. The act prescribed the maximum of charges which the proprietor, lessee, or manager of the warehouse was allowed to make for storage and handling of grain, including the cost of receiving and dehvering it, for the first thirty days or any part thereof, and for each succeed- ing fifteen days or any part thereof; and it required him to procure from the circuit court of the county a license to transact business as a public warehouseman, and to give a bond to the people of the State in the penal sum of ten thousand dollars for the faithful performance of his duty as such warehouseman of the first class, and for his full and unreserved compliance with all laws of the State in relation thereto. The license was made revocable by the circuit court upon a summary proceeding for any violation of such laws. And a penalty was imposed upon every person transacting business as a public warehouseman of the first class without first procuring a license, or continu- ing in such business after his license had been revoked, of not less than one hundred or more than five hundred dol- lars for each day on which the business was thus carried 159 on. The court was nlso antliorizod to rci'nsc^ lor one vt^ir to renew tlie license, ov to gTant a now one to any jitTson whose license had l)een revoked. The maximum of cliaru'es pi'cserihed hy the act for tlie receipt and storage of grain was dift'erent from that wliich Munn & ^Scott had prc\'ionsly charged, and wliich had heen agreed to hy the owners of the grain, yiore extended periods of storage were required of them than they formeidy gaA'c for the same charges. What they formerly charged for the first twenty days of storage, the act allowed them to charge only lor the first thii'ty days of storage ; and what they formerly charged for each succeeding ten days after the first twenty, the act allowed them to charge only for each succeeding fifteen days after the first thirty. Munn & Scott, deeming that they had a right to use their own prop- erty in such manner as they desired, not inconsistent with the equal right of others to a like use, and denying the power of the legislature to fix prices for the use of their property and their services in coimection with it, refused to comply with the act hy taking out the license and giv- ing the hond required; hut continued to carry on the busi- ness and to charge for receiving and storing grain such prices as they had been accustomed to charge, and as had been agreed npon between them and the owners of the grain. For thus transacting their business without pro- curing a license as required by the act, they were prose- cuted and fined, and the judgment against them was affirmed l:)y the Supreme Court of the State. The case was then carried to the Supreme Court of the United States. The question thus presented for adjudication was whether it is within the conqjetency of a State to fix the compensa- tion which an individual may receive for the use of his own property in his private business and for his services in connection with it ? It was argued with great ability by distinguished counsel, Messrs. Goudy and Jewett, for Munn ifc Scott, and the Attornev-General of Illinois, for 160 the State. The Supreme Coiii't affirmed the judgment, two judges only, Field and Strong, disagreeing with it. Chief Justice Waite gave the opinion of the court; Judge Field filed a dissenting opinion. The Chief Justice, after stating generally that when one becomes a member of society he necessarily parts with some rights or privileges wliicli as an individual, not ati'ected by his relations to others, he might retain; that government acting for all, under what are termed its po- lice powers, regulates the conduct of its citizens toward each other, and the manner in which each shall use his property when such regulation becomes necessary for the public good, and that in their .exercise it has been custom- ary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common car- riers, hackmen, bakers, millers, wharfingers, and innkee|)- ers, said as follows : "From this it is apparent that, down to the time of the adoption ofthe fourteenth amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some cir- cumstances they may, but not under all. The ameudment does not change the law in this particular ; it simpl}' prevents the States from doing that which will operate as such a deprivation. "This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what is without its operative effect. Looking, then, to the common law, from whence came the right, which the Constitution protects, we find that when private property is 'affected with a public interest, it ceases to be juris prlvati only.' This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Fortibus Maris, (1 Harg. Law Tracts, 78,) and has been accepted without objection as an essential ele- ment in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public conse- quence, and affect the community at large. When, therefore, one de- votes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the inter- est he has thus created. He may withdraw his grant by discontinuing the use ; but so long as he maintains the use he must submit to the con- trol."— (94 U. S., 125-6.) 101 The (uu'triiu' \\vvo annonueod as to propm-ty beiiiti' affected with a }ml)lie interest, and the statement of the circunistances under whieli property is thus ati:eeted, con- stitute the principle of the decision, the reason of the judg- ment rendered. Several cases were also cited hy the Chief .Justice in supposed support of his position. Judge Field, as stated above, tiled a dissenting opinion. In that he answered the position of the Chief Justice, and examined the authorities referred to l)y him, and in the view of many very able judges and lawyers overthrew the ]>osition and showed that the authorities sustain the very contrary of the doc- trine to uphold wliich they were invoked. Speaking for himself and his associate the Judge said as follows : " The declaration of the constitution [of Illinois] of 1870, that pri- vate buildings used for private purposes shall be deemed public institu- tions, does not make them so. The receipt and storage of grain in a build- ing erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language, though used by a constitutional convention, which can change a private business into a public one, or alter the character of the building in which the business is transacted. A tailor's or a shoemaker's .shop would still re- tain its private character even though the assembled wisdom of the State should declare by organic act or legislative ordinance that such a place was a public workshop, and that the workmen were public tailors or pub- lic shoemakers. One might as well attempt to change the nature of col- ors by giving them a new designation. The defendants were no more public warehousemen, as justly observed by counsel, than the merchant who sells his merchandise to the public is a public merchant, or the blacksmith who shoes horses for the public is a public blacksmith ; and it was a strange notion that by calling them so they would be brought under legi.slative control. " The Supreme Court of the State— divided, it is true, by three to two of its members — has held that this legislation was a legitimate exercise of State authority over private business ; and the Supreme Court of the United States, two only of its members dissenting, has decided that there is nothing in the Constitutiou of the United States, or its recent amend- ments, which impugns its validity. It is, therefore, with diffidence I presume to question the soundness of the decision. " The validity of the legislation was, among other grounds, assailed in the State court as being in conflict with that provision of the State con- stitution which declares that no person shall be deprived of life, liberty, 11 1G2 or property without due process of law, ami with that provision of the 14th ameudment of the federal Constitution which imposes a similar re- striction upon the action of the State. The State court held in substance that the constitutional provision was not violated so long as the owner was not deprived of the title and possession of his property ; and that it did not deny to the legislature the power to make all needful rules and regulations respecting the use and enjoyment of the property, referring, in support of the position, to instances of its action in prescribing the in- terest on money, in establishing and regulating public ferries and public mills, and fixing the compensation in the shape of tolls, and in delegating power to municipal bodies to regulate the charges of hackmen and dray- men and the weight and price of bread. In this court the legislation was also assailed on the same ground, our jurisdiction arising upon the clause of the 14th amendment ordaining that no State shall deprive any person of life, liberty, or property without due process of law. But it. would seem from its opinion that the court holds that property loses something of its private character when employed in such a way as to be generally useful. The doctrine declared is that property ' becomes clothed with a public interest when used in a manner to make it of public consequence and atfect the community at large ;' and from such clothing the right of the legislature is deduced to control the use of the property and to de- termine the compensation which the owner may receive for it. "When Sir Matthew Hale, and the sages of the law in his day, spoke of property as affected by a public interest, and ceasing from that cause to be juris X)rivati solely, that is, ceasing to be held merely in private right, they re- ferred to property dedicated by the owner to public uses, or to property the use of Avhich was granted by the government, or in connection with which special privileges were conferred. Unless the propertj^ was thus dedicated, or some right bestowed by the government was held with the property, either by specific grant or by prescription of so long a time as to imply a grant originally, the property was not affected by any public interest so as to be taken out of the category of property held in private right. But it is not in any such sense that the terms ' clothing property with a public interest ' are used in this case. From the nature of the business under consideration — the storage of grain — which, in any sense in Avhich the word can be used, is a private business, in which the public are interested only as they are interested in the storage of otlier products of the soil, or in articles of manufacture, it is clear that the court intended to declare that whenever one devotes his property to a business which is useful to the public— 'affects the community at large ' — the legislature can regulate the compensation which the owner maj^ receive for its use and for his own services in connection with it. ' When, therefore,' says the court, 'one devotes his property to a use in which the public has an in- terest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by dis- 1G8 confinuiiiji, tlio use. l)nt so long as ho iiuiiiitains tlio use ho must submit to the control.' The building used by the defondants was lor the storage of grain; in such storage, says the court, the puldic has an interest; thorotbre tlu; dofendants, by devoting the building to that storage, have granted to tlio public an interest in that use, and must submit to have their compen,sation regulated by the legislature. "If this be sound hnv, if there be no protection either in the jjrinciples upon which our republican government is founded, or in the prohibitions of the Constitution against such invasion of private rights, all property and all business in the State are held at the mercy of a majority of its legislature. The public has no greater interest in the use of buildings for the storage of grain than it has in the use of buildings for the resi- dences of families, nor, indeed, anything like so great an interest ; and, according to the doctrine announced, the legislature may fix the rent of all tenements used for residences, without reference to the co.st of their erection. If tlie owner does not like the rates prescribed, he may cease renting his houses. He has granted to the public, says the court, an in- terest in the use of the buildings, and ' he may withdraw his grant by discontinuing the use ; but so long as he maintains the use he must sub- mit to the control.' The public is interested in the manufacture of cot- ton, woolen, and silken fabrics, in the construction of machinery, in the printing ami publication of books and periodicals, and in the making of utensils of every variety, useful and ornamental ; indeed, there is hardly an enterprise or business engaging the attention and labor of any consid- erable portion of the community in which the public has not an interest in the sense in which that term is used by the court in its opinion ; and the doctrine which allows the legislature to interfere with and regulate the charges which the owners of property thus employed shall make for its use, that is, the rates at which all these different kinds of business shall be carried on, has never before been asserted, so tar as I am aware, by any judicial tribunal in the United States. '■ The doctrine of the State court, that no one is deprived of his prop- erty, within the meaning of the constitutional inhibition, so long as he retains its title and po.sse.ssion, and the doctrine of this court, that when- ever one's property is used in such a manner as to atfect the community at large, it becomes by that fact clothed with a public interest and ceases to he. juris privati only, api)ear to me to destroy for all useful purposes the efiicacj^ of the constitutional guaranty. All that is beneficial in property arises from its use and the fruits of that use ; and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. If the constitutional guaranty extends no further than to prevent a deprivation of title and possession, and allows a de- privation of use and the fruits of that use, it does not merit the encomi- ums it has received. Unless I have misread the history of the provision now incorporated into all our State constitutions, and by the fifth and fourteenth amendments into our federal Constitution, and have misun- 1G4 derstood the interpretation it has received, it is not thus limited in its scope and thus impotent for good. It has a much more extended opera- tion than either court, State or federal, has given to it. The provision, it is to be observed, places property under the same protection as life and liberty. Except by due pi-ocess of law no State can deprive any person of either. The provision has been supposed to secure to every individual the essential conditions for the pursuit of happiness, and for that reason hiis not been heretofore, and should never be, construed in any narrow or restricted sense. "No State 'shall deprive any person of life, liberty, or property with- out due process of law,' says the 14th amendment to the Constitution. By the term ' life,' as here used, something more is meant than mere ani- mal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The i)rovision equally pro- hibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. The deprivation, not only of life, but of whatever God has given to every one with life, for its growth and enjoyment, is prohibited by the provision in question, if its efficacy be not frittered away by judicial decision. "By the term 'liberty,' as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness — that is, to pursue such callings and avocations as may be most suitable to develop his capacities and give to them their highest enjoyment. " The same liberal construction which is required for the protection of life and liberty, in all particulars in which life and liberty are of any value, should be applied to the protection of private jiroperty. If the legislature of a State, under pretence of providing for the public good, or for any other reason, can determine, against the consent of the owner, the uses to which private property shall be devoted, or the prices which the owner shall receive for its uses, it can deprive him of the property as completely as by a special act for its confiscation or destruction. If, for instance, the owner is prohibited from using his building for the purposes for which it was designed, it is of little consequence that he is permitted to retain the title and ijossession. Or if he is compelled to take as com- pensation for its use less than the expenses to which he is subjected by its ownership, he is for all practical purposes deprived of the property, as effectually as if the legislature had ordered his forcible dispossession. If it be admitted that the legislature has any control over the compen- sation, the extent of that compensation becomes a mere matter of legis- lative discretion. The amount fixed will operate as a partial destruc- tion of the value of the property, if it fall below the amount which the owner would obtain by contract, and, practically, as a complete destrue- 165 lion, il" it ))(■ less than the cost ot' ret:uiiiiig its possession. There is, in- deed, no protection of any valne under the constitutional provision which does not c xtend to the ■ use and income of t he l)roi)erty as well as to its title and ) lossessi on. '•Tliis (•! >urt Iki IS ll ere ■tolu re he Id in ni; my it 1st; inces tiiat a constitutional provision intend. ■d 1 ■or the pn)t( •eti on ol' ri-hts. )i' juivate property should belil.erall y const rn( ■d. It 1 lias s( ) h .•hi il 1 the nil melons cases where it has ))een calle. d upon 1 to iii ive ( dtect to the prov isi( )n ])i'ohibitinroperty when leased or loaned to others. The conditions upon which the privilege shall be enjoyed being stated or implied in the legislation authorizing its grant, no right is, of counse, impaired by their enforce- ment. The recipient of the privilege in effect stipulates to comply with the conditions. It matters not how limited the privilege conferred, its acceptance Implies an assent to the regulation of its use and the compen- sation for it. The privilege which the hackman and drayman have to the use of stands on the public streets, not allowed to the ordinary coach- man or laborer with teams, constitutes a sufficient warrant for the regula- tion of their fares. In the case of the warehousemen of Chicago, no right or privilege is conferred by the government upon them, and hence no as- sent of theirs can be alleged to justify any interference with their charges for the use of their property. " The quotations from the writings of Sir Matthew Hale, so far from suppoiting the positions of the court, do not recognize the interference of the government even to the extent which I have admitted to be legit- imate. They state merely that the franchise of a public ferry belongs to the King, and cannot be used l)y the subject except by license from him, or prescription time out of mind ; and that wlien the subject has a pub- lic wharf by license from the King, or from having dedicated his private wharf to the public, as in the case of a street opened by him through his own land, he must allow the use of the wharf for reasonable and mod- erate charges. Thus, in the first quotation, which is taken from his treatise ' De Jure Maris,' Hale says that the King has a 'right of fran- chise or privilege, that no man may set up a common ferry for all pas- sengers without a prescription time out of miiul or a charter from the King. He may make a ferry for his own use or the use of his family, but not for the common use of all the King's subjects passing that way ; * Wilkeson vs. Leland, 2 Peters, 657. 170 because it doth in conseqnent tend to a common charge, and is become a thing of public interest and use, and every man for his i)assage jiays a toll, which is a common charge, and every ferry ought to be under a pub- lic regulation, viz., that it give attendance at due times, keep a boat in due order, and take bat reasonable toll ; for if he fail in these he is fine- able.' Of coarse one who obtains a license from the King to establish a public ferry at which ' every man for his pa.ssage pays a toll,' must take it on condition that he charge only reasonable toll, and indeed subject to such regulations as the King may prescribe. "In the second quotation, which is taken from his treatise' De Porti- bus Maris,' Hale says: 'A man. for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, ho usellage, pesage ; ior he doth no more than is lawful for any man to do, viz., makes the most of his own. ... If the King or subject have a public wharf, unto wliicli all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharves only licensed by the King, . . . or because there is no other wharf in that port, as it may fall oat where a port is newly erected, in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c., neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled liy the King's license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to he juris privati only ; as if a man set out a street in new building on his own laud, it is now no longer bare private interest, bat is affected by the public interest.' The purport of which is that if one have a public wharf, by license from the government or his own dedication, he must exact only reasonable com- pensation for its use. By its dedication to public u.se a wharf is as much brought under the common law rule of subjection to reasonable charges as it would be if originally established or licensed by the Crown. All property dedicated to public use by an individual owner, as in the case of land for a park or .street, falls at once, by force of the dedication, un- der the law governing property appropriated by the government lor sim- ilar purpo.ses. " I do not doubt the justice of ths encomiums passed upon Sir Matthew Hale as a learned jurist of his day, but I am unable to perceive the per- tinency of his observations upon public ferries and public wharves, found in his treatises on ' The Rights of the Sea ' and on ' The Ports of the Sea,' to the questions presented by the warehousing law of Illinois undertak- ing to regulate the compensation receivable b^^ the owners of private property, when that property is used for prirate purposes. " The principal authority cited in support of the ruling of the court is that of Alnutt vs. Inglis, decided by the King's Bench, and reported in the 12th of E:ist. But that case, so far from sustaining the ruling, estab- lishes, in my judgment, the doctrine that every one has a right to charge 171 for his property, or for its use, whatever he pleases, unh^ss he enjoys in eoniieetiou with it some riji;ht or priviU^ge from the government not ac- (">)rded to others; and even then it only decides wliat is ahovc stated in the quotations from Sir Matthew Hale, that he must suhmit, so long aa he retains the right or privilege, to reasonahle rates. In that case the London Dock t'ouipany, under certain acts ol' rarliament, possessed the exclusive right of ri'ceiviug imported goods into their warehouses hefore Ihe dulics were paid ; and the question was whether the conipany was hound to receive them for a reasonal)le reward, or whether it could arbi- trarily lix its compensation. In deciding the case, the Chief Justice, Lord Ellenhorough, .said : ' There is no doubt that the general principle is favored both in law and justice, that every man may fi.x what price he pleases upon his own property, or the use of it ; but il', for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benelit of that monopoly, he must, as an ecjuivalent, perform the duty attached to it on reasonalde terms.' And coming to the con- elusion that the company's warehouses were invested with ' the monopoly of a public privilege,' he held that by law the company must contine it- self to take rea,sonable rates ; and added that if the Crown should there- after think it advisable to extend the privilege more generally to other persons and places, so that the public would not be restrained from exer- cising a choice of warehouses for the purpose, the company might be en- franchised from the restriction which attached to a monopoly; but so long as its warehouses were the only places which could be resorted to for that purpose, the company was bound to let the trade have the use of them for a reasonable hire and reward. The other judges of the court placed their concurrence in the decision upon the ground tliat the com- l)any possessed a legal monopoly of the business, having the only ware- houses where goods imported could be lawfully received without i^revious payment of the duties. P'rom this case it appears that it is only where some privilege in the bestowal of the government is enjoyed in connec- tion with the property, that it is affected with a public interest in any proper sense of the term. It is the public privilege conferred with the use of the property which creates the public interest in it. '■ In the case decided by the Supreme Court of Alabama, where a power granted by the city of Mobile to license bakers and to regulate the weight and price of bread, was sustained so far as regulating the weight of bread was concerned, no question was made as to the right to regulate the price.* There is no doubt of the competency of the State to prescribe the weight of a loaf of bread, as it may declare what weight shall constitute a pound or a ton. But I deny the power of any legislature under our government to lix the price which one shall receive for his property of any kind. If the power can be exercised as to one article it may as to all articles, and * 3 Ala., 137. 172 the prices ol' everything iVoni a calico gown to a city mansion may be the subject of legislative direction. •'Other instances of a similar character may no doubt be cited of at- tempted legislative interference with the rights of property. The act of Congress of 1820, mentioned by the court, is one of them. There Con- gress undertook to confer upon the city of Washington povs^er to regulate the rates of wharfage at private wharves, and the fees for sweeping chim- neys. Until some authoritative adjudication is had upon these and sim- ilar provisions, I must adhere, notwithstanding the legislation, to my opinion that those who own property liave the right to fix the compensa- tion at which they will allow its use, and thai those who control services have a right to fix the compensation at which they will be rendered. The chimney-sweeps may, I think, safely claim all the compensation which they can obtain by bargain for their work. In the absence of any con- tract for property or services the law allows only a reasonable price or compensation, but what is a reasonable price in any case will depend upon a variety of considerations, and is not a matter for legislative determina- tion. " The practice of regulating by legislation the interest receivable for the use of money, when considered with reference to its origin, is only the assertion of a right of the government to control the extent to which a privilege granted by it may be exercised and enjoyed. By the ancient common law it was unlawful to take any money for the nse of money ; all who did so were called usurers, a term of great reproach, and were ex- posed to the censure of the Church. And if, after the death of a person, it was discovered that he had been a usurer whilst living, his chattels were forfeited to the King, and his lands escheated to the lord of the fee. No action could be maintained on any promise to pay for the use of money, because of tlie unlawfulness of the contract. Whilst the common law thus condemned all usury, Parliament interfered and made it lawful to take a limited amount of interest. It was not upon the theory that the legislature could arbitrarily fix the compensation which one could receive for the use of property, which by the general law was the subject of hire for compensation, that Parliament acted, but in order to confer a privi- lege which the common law denied. The reasons which led to this legis- lation originally have long since ceased to exist, and if the legislation is still persisted in, it is because a long acquiescence in the exercise of a power, especially when it was rightfully assumed in the first instance, is generally received assufiicient evidence of its continued lawfulness.* ■•10 Bacon's Abridgment, 264. The stntute of 13 Elizabeth, C. 8, which allows ten per cent, interest, recites " th it all usury being forbidden by the law of God is sin and detestable;" anil the statute of 21 James tiie First, reducing the rate to eight per cent., provided that nothing in the law should be " construed to allow the practice of usury in point of religion or conscience," a clause introduced, it is said, to satisfy the bish- opsj who would not vote for the bill without it. 17?. "There was also recognized in England by tlie ancient conunon law certaiu privileges as belonging to the lord of the manor, which grew out of the state of the country, the condition of the people, and the relation existing l)et\veen him and his tenants under the feudal system. Among these was the right of the' lord to compel all the tenants within his manor to grind their corn at his mill. No one, thcrelbre, could set up a mill except by his license or by the license of the Crown, unless he claimed the right by prescri»ptiou, which presupposed a grant from the lord or Crown, and, of course, with such license went the right to regu- late the tolls to be received. Hence originated the doctrine which at onetime obtained generally in this country, that there could be no mill to grind corn for the public without a grant or license from the public authorities. It is still, I believe, asserted in some States. This doctrine being recognized, all the rest followed. The right to control the toll ac- companied the right to control the establi.shment of the mill. " It requires no comment to point out the radical differences between the ca.ses of public mills and interest on money and that of the warehouses in Chicago. No prerogative or privilege of the Crown to establish ware- liouses was ever asserted at the common law. The business of a ware- houseman was at common law a private bnsines.s, and is so in its nature. It has no special ijrivileges connected with it, nor did the law ever extend to it any greater protection than it extended to all other private business. No reason can be assigned to justify legislation interfering ^yith the legit- imate profits of that business that would not ecjually justify an inter- meddling with the bu.siness of every man in the community, so soon at least as his business became generally useful."* The Relations between the Federal Government and THE State Governments. — The Rights of the States. — The Virginia Jury Cases and the Election Cases FROM Ohio and Maryland. The governmetit of the Union is a erovernment of dele- gated powers. It can exercise only those powers and such as ma J be necessary and proper to give them full execu- tion. All other powers whicli are not thus delegated, and which are not prohibited by the Constitution, are reserved to the States or to the people. This is not a matter of argu- * See a learned note by Prof. Denslow upon the opinion of the court in the 16th vol., new series, of the American Law Register, p. 539-545. 174 nient and inference. It is the express langiiag'e of the tenth amendment, wliieh is as foUows : " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the peoi^le." All that there is of" State rights," properly understood, is contained in this amendment. When reference is made to the authority and jurisdiction of States, and not merely to their proprietary interests, "' rights " and "■ powers" are sj^nonymous terms. The rights of tlie States, or " State rights," as the phrase is, are nothing more than the powers of the States reserv^ed to them under the Constitution. The government of the Union is invested with great powers, such as are essential to present the whole country as one nation in its intercourse with other countries, whether in peace or war, and such as are essential to the preservation of j^eace at home, and to facilitate intercourse and commerce among its people. In all its po\^'~ers that government is supreme, and to their enforcement no im- pediment can be lawfully interposed. Is'o true advocate for the maintenance of the rights of the States can ever claim otherwise. The Constitution itself on its face de- clares that it, and laws made in pursuance thereof, " shall be the supreme law of the land." But the same supreme authority over matters delegated to it, which the government of the Union possesses, the States retain over matters not thus delegated. Over such matters the powers of the States are those of their orig- inal sovereignty. It vvas not for local matters, such as the management of the police of towns and cities, the opening of highways, the care of the sick, the education of children, the establishment of universities, the regula- tion, transfer, and descent of property, and the direction of the local interests of a community, that the government of the Union was created. It was creg,ted for the control of matters of common interest to all the States, which they could not in their separate capacities adequately manage. 175 Till' dual i^'oN'oninuMit oi' our iatluTs -that o!' llio 2:en- eral li-oViM-mnout aud tliat of the States — actiniz; to^'etlier solved the prohleui ol' a iVee ii'overinnent over a vast eouu- tr\\ end)faeiui2: dill'ereut eliinates, I'liniishino; dili'crent produets, aud haviiiu', iu ditlerent Bcctious, j»i'oj>le oi' dif- fereut hahits aud pursuits. Eaeh State can have its local policy to suit its people, without inteii'eriut;- with a ditt'eueut policy })ursued hy aiu>thei' State. Take, tor exauiple, the three States of Maine, Georgia, aud California. Maine, with its cool clinmte, its mountains of tindier, its water- power for manufacturing establishments, and its neigli- boiing fishiug-gr>»unds, may desire special legislation to develop its industries and promote its prosperity. Georgia, with its cotton fields, its bahiily air, aud its productive soil, may require a very different s3'Stem of measures for which the legislation of Maine would be unsuitable. California, with its gold* and silver mines, its seasons of rain and drought, the latter requiring [irovision for irrigation ; its vast production of cereals and fruits, its position on the Pacific Ocean encoui-aging commerce wdth Asia, may well call for other and diti'erent legislation. Under our federal system each of these States can pursue its own policy without au}^ jarring between them. The government of the Union is over all, preserving peace among them, and protecting them all from foreign aggression or violence. In the argument of the Cruikshank case before the Supreme Court, one of the counsel* used the followino- language, which well presents this sul)ject : " This complex government was curiously contrived to give liberty and safety to the people of all the States. It Avas fashioned by the people, in the name of the people, and for the people. Its aim was to keep the peace among the States and to manage atfairs of common concern, while it left to the States the entire management of their own afliiirs. Its found- ers were wise and practical men. They knew what history had taught from the beginning of Greek civilization, that a number of small repub- lics would perish without federation, and that federation would destroy the small republics without such a barrier as it was impossible to pass. David Dudley Field. 176 Liberty and safety were the ends to be won by the don])le and oomiilex organization; liberty from the States, and safety from the Union, and the founders thought that they had contrived a scheme which would make the States and the Union essential parts of a great whole ; that they liad set bounds to each which they could not pass ; in short, that they had founded ' liberty and union, one and inseparable.' " No man in his senses could have supposed, at the formation of the Constitution, or can now suppose, that a consolidated government, ex- tending over so much territory and so many people, can last a generation without the destruction of the States and of republican government with them. History is a fable, and political philosophy a delusion, if any government other than monarchical can stretch itself over tifty degrees of longitude and half as many of latitude, with fifty millions of people, where there are no local governments capable of standing by themselves and resisting all attempts to imperil their self-existence or impair their authority. The moment it is conceded that Washington may, at its dis- cretion, regulate all the concerns of New York and California, of Louisi- ana and Maine; that the autonomy of the States has no defence stronger than the self-denial of fluctuating congressional majorities; at that mo- ment the republic of our flithers will have disappeared, and a republic in name, but a despotism in fact, will have taken its place, to give way in another generation to a government with another name, and other attributes." Ill his dissenting- opinion in the Pensacola Telegraph case Judge Field gave expression to similar views, as follows: " The late war was carried on at an enormous cost of life and property that the Union might be preserved ; but unless the independence of tlie States within their proper spheres be also preserved the Union is value- less. In our form of government the one is as essential as the other ; and a blow at one strikes both. The general government was formed for national purposes, j)rincipally that we might have within ourselves uni- formity of commercial regulations, a common currency, one postal system and that the citizens of the several States might have in each equality of right and privilege ; and that in our foreign relations we might present ourselves as one nation. Bat the protection and enforcement of private rights of both persons and property, and the regulation of domestic af- fairs, were left chiefly with the States, and unless they are allowed to re- main there it will be impossible for a country of such vast dimensions as ours, with every variety of soil and climate, creating different pursuits and conflicting interests in different sections, to be kept together in peace. As long as the general government confines itself to its great but limited sphere, and the States are left to control their domestic affairs and business, there can be no ground for public unrest and disturbance. Disquiet can only arise from the exercise of nngranted powers." — (96 U. S., 23.) 177 Tlio fourtec'iitli aiuoiulnieut \ni< not diauged tliis con- trol of the Statos over matters of loeal concern. It only prohibits partial and discriminating legislation by them, requiring that all persons within their jnris(ncli()n shall receive the equal protection of the laws. It interferes with the previous powers of the States in no other respect. But by far the most exhaustive and elaborate consider- ation of the relations between the general government and that of the States, which has ever been liad in the Supreme Court, is found in the dissenting opinions of Judge Field in the recent jury cases from Virginia, and in the election cases from Ohio and Maryland. There were two jury cases ; one arising upon the in- dictment of a county judge for not selecting as jurors per- sons of the colored race; and the other upon the removal of prisoners from a State court to a federal court after their conviction because persons of that race were not selected as jurors in the State court. The first case arose as follows: In Virginia all male citizens between the ages of twenty- one and sixty, who are entitled to vote and hold office un- der tlie constitution and laws of the State, are lial)le, with certain exceptions, not material to be here mentioned, to serve as jurors. The judge of each county or corporation court is required to prepare annually a list of such inhab- itants of the county or corporation, not less than one hun- dred, nor exceeding three hundred in number, " as he shall think well qualified to serve as jurors, being persons of sound judgment and free from legal exception." The name of each person on the list thus prepared is to be written on a separate ballot and placed in a Ijox to be kept by the clerk of the court. From this box the names of persons to be summoned as grand and petit jur«)rs of the county are to be drawn. The law, in thus providing for the preparation of the list of persons from whom the jurors are to be taken, makes no discrimination against persons of the colored 12 178 race. The judge of the county or corporation court is re- stricted in his action oidy by the condition that the per- sons selected sliall, in his opinion, be "well qualified to serve as jurors," be " of sound judgment," and " free from legal exception." A¥hether they possess these qualifica- tions, is left to his determination. In 1878 J. D. Coles was the judge of the County Court ■ of the County of Pittsylvania, in A^irginia, and had held that office for some years. It was not pretended that, in the discharge of his judicial duties, he had ever selected as jurors persons who w^ere not qualified to serve in that character, or who were not of sound judgment, or who were not free from legal exception. It was not even sug- gested in argument that he had not at all times faithfully obeyed the law of the State ; yet he was indicted in the District Court of tlie United States for the Western Dis- trict of Virginia for having, on some undesignated day in the year 1878, excluded and failed to select as grand and petit juroj's, citizens of the county, on account of race, color, and previous condition of servitude. The indict- ment did not state who those citizens were, or set forth any particulars of the oti'ence, but charged it in the gen- eral words of a definition. The district court, neverthe- less, issued a bench warrant, upon which the judge was arrested and, refusing to give bail, he was held in custody to answer the indictment. He thereupon presented to the Supreme Court of the United States a petition for a certi- orari to that court to send up .the record of its proceedings for examination, and for a writ of habeas corpus, alleging that its action was without jurisdiction, and that his im- prisomnent thereunder was unlawful, and praying to be released therefrom. The Commonwealth of Virginia also presented a simi- lar petition, declaring that she was injured by being de- prived of the services of her judicial officer, by his un- lawful arrest and imprisonment. The indictment was founded upon the fourth section of 17I» tlij act of Congress of March 1st, 187'), ''to protccl all c-itizoiis in their civil and legal rights," which dcchuvs : '^ That no citizen possessing all other qualifications, which are or may be prescribed by law, shall be disqualified for service as grand or petit juror, in any court of the United States, or of any State, on account of race, coloi-, or pre- vious condition of servitude ; and any officer or other per- son charged with au}^ duty in llie selection or summoning of jurors, who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars." The case was elaborately and ably argued liydudge Robertson and the Attorney-General of Virginia for the })etitioner, Coles, and the Commonwealth ; and l)y the Attorney-General of the United States and Judge AYil- oughby in opposition. The court held the act of Congress constitutional, the indictment valid, and denied the petitions of Judge Coles and the Commonwealth of Virginia. A very elaborate opinion on sustaining their action was given by Judge Strong for the majority of the court. Judges (^liftbrd and Field dissented, Judge Field dehvering a dissenting opin- ion. In that opinion lie contended that the district court exceeded its jurisdiction in issuing its process for the arrest of Judge Coles, on two gi-ounds: 1st, because, assuming that the act of Congress of 1875 was constitutioiud and valid legislation, the indictment described no ofience uiuler it, but was void on its face; and 2nd, because that act, in the section upon which the indictment was founded, so far as it related to jurors in State courts, was unconstitutional and void. On the second ground Judge Field said as follows : " Previous to the late amendments it would not have been contended, by any one familiar with the Constitution, that Congress was vested with any power to exercise supervision over the conduct of State officers in the discharge of their duties under the laws of the State, and prescribe a punishment for disregarding its directions. It would have been con- 180 ceded that the selection of jurors was a subject exclusively for regulation by the States ; that it was for them to determine who should act as jurors in their courts, from what class they should be taken, and what qualifi- cations they should possess ; and that their officers in carrying out the laws in this respect were responsible only to them. The States could have abolished jury trials altogether, and required all controversies to be submitted to the courts without their intervention. The sixth and sev- enth amendments, in which jury trials are mentioned, apply only to the federal courts, as has been repeatedly adjudged. " The government created by the Constitution was not designed for the regulation of matters of purely local concern. The States required no aid from any external authority to manage their domestic affairs. They were fully competent to provide for the due administration of justice between their own citizens in their own courts, and they needed no di- rections in that matter from any other government, any more than they needed directions as to their highways and schools, their hospitals and charitable institutions, their public libraries, or the magistrates they should appoint for their towns and counties. It was only for matters which concerned all the States, and which could not be managed by them in their independent capacity, or managed only with great difficulty and embarrassment, that a general and common government was desired. Whilst they retained control of local matters, it was felt necessary that matters of general and common interest, Avhich they could not wisely and efficiently manage, should be entrusted to a central authority. And so to the common government, which grew out of this prevailing neces- sity, was granted exclusive jurisdiction over external affiiirs, including the great powers of declaring war, making peace, and concluding treaties ; but only such powers of internal regulation were conferred as were es- sential to the successful and efficient working of the government estab- lished ; to facilitate intercourse and commerce between the people of the different States, and secure to them equality of protection in the several States. " That the central government was created chiefly for matters of a general character, which concerned all the States and their people, and not for matters of interior regulation, is shown as much by the history of its formation, as by the express language of the Constitution. The Union preceded tlie Constitution. As happily expressed by the late Chief Jus- tice, ' it began among the Colonies and gi-ew out of common origin, mu- tual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation.'— (Texas vs. White, 725. ) Those articles were prepared by the Continental Congress, which was called to provide measures for the common defence of the colonies against the encroachments of the British Crown, and which, foiling to secure redress, declared their independence. Its members foresaw that when the independence of the Colonies w;as 181 established and acknowleilgcd, their condition as separate and independ- ent States woiihl he beset with dangers throaleninu' their peaee and safety ; tliat disputes arisini;- tVoni o;inllietinu' interests and rivah-ies, always inci- dent to nei<>;hborin,n- nations, would lead to arni<>d collisions and expose them to re-conquest by tlie niolher country. To ])rovide against the jiossibility of evils of this kiny them with i)owers supposed to be ampleto secure these ends, aiul declared that there sliould be freedom of intercourse and commerce between the inhabitants of the several States. They provided for a general Congress, and, among other things, invested it with the ex- clusive liower of determining on peace and war, except in case of iava- sioa of a State by enemies or imminent danger of such invasion by In- dians; of sending and receiving ambassadors, entering into treaties and alliances ; of regulating the alloy and value of coin struck by the au- thority of the States or of the United States; of fixing the standard of weights and measures ; of regulating the trade and managing all affliirs with the Indians ; and of establishing and regulating post-offices from one State to another ; and they placed numerous restraints upon tlie States. But by none of the articles was any interference authorized with the purely internal affairs of the States, or with any of the instrumentalities by which the States administered their governments and dispensed .jus- tice among their people ; and they declared in terms that each State re- tained its sovereignty, freedom, and independence, and every power, ju- risdiction, and right which was not by the articles expressly delegated to the United States in Congress assembled. " When the government of the Confederation failed, chiefly through the want of all coercive authority, to carrv^ into effect its measures, its power being only that of recommendation to the States, and the present Con- stitution was adopted, the same general ends were sought to be attained, namely, the creation of a central government, which would take exclu- sive charge of all our foreign relations, representing the people of all the States in that respect as one nation, and would at the same time secure at home freedom of intercourse between the States, equality of protection to citizens of each State in the several States, uniformity of commercial regulations, a common currency, a standard of weights and measures, one postal system, and such other matters as concerned all the States and their people. " Accordingly, the new government was invested with powers adequate to the accomplishment of these purposes, with which it could act directly upon the people, and not by recommendation to the States, and enforce 182 its measures through tribunals and olticers of its own creation. There were also restraints placed upon the action of the States to prevent in- terference with the authority of the new government, and to secure to all persons protection against punishment by legislative decree, and eu- sure.the fulfillment of contract obligations. But the control of matters of purely local concern, not coming within the scope of the powers granted or the restraints mentioned, was left, where it had always existed, with the States. The new government being one of granted powers, its au- thority was limited by them and such as were necessarily implied for their execution. But lest from a misconception of their extent these powers might be abused, the tenth amendment was at an early day adopted, declaring that ' the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' " Now. if we look into the Constitution we shall not find a single word from its opening to its concluding line, nor in any of the amendments in force before the close of the civil Avar, nor, as I shall hereafter endeavor to show, in those subsequently adopted, which authorizes any interference by Congress with the States in the administration of their governments, and the enforcement of their laws with respect to any matter over which jurisdiction was not surrendered to the United States. The design of its framers was not to destroy the States, but to form a more perfect union between them, and whilst creating a central government for certain great purposes, to leave to the States in all matters, the jurisdiction of which was not surrendered, the functions essential to separate and independent eKistence. And so the late Chief Justice, speaking for the court in 1869, said: ' Not only, therefore, can there bs no loss of separate and independ- ent autonomy to the States, through their union und:^r tlie Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the de- sign and care of the Constitution as the preservation of the Union and the maintenance of the national government,' and then he adds, in that strikino- language which gives to an old truth new force and significance, that ' the Constitution, in .all its provisions, looks to an indestructible Union composed of indestructible States.'— (Texas vs.White, 7 Wall., 725.) " And Mr. Justice Nelson, also speaking for the court, in 1871, used this language : ' The general government, and the States, although both exist within the same territorial limits, are separate and distinct sov- ereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the lan- guage of the tenth amendment, 'reserved,' are as independent of the gen- eral government as that government within its sphere is independent of the States.' And again : ' We have said that one of the reserved powers was that to establish a judicial department ; it would have been more ac- curate, and in accordance with the existing state of things at the time, to 188 liavo said llic i)o\vcr to iiiaiutaiu a JLulicial (lipartmciil. All ol' the thirteen Htates were in the possession of this power and had exercised it at the adopt ion of the Constitntiou ; and it is not pretended that any grant of it to tlic geni'ral government is I'onnd in that instrument. It is, therefore, one (jf tlii' sovereign powers vesu-d in tlie States by their con- stitutions, which remained unaltered and unimpaired, and in respect to which the State is as independent of the general government as that government is independent of the States.' — (The Collector vs. Day, 11 Wall., 1-24-6.) "The cases of Texas vs. White, and Collector vs. Day, were decided after the thirteenth and fourteenth amendments, upon which it is sought to maintain the legislation in question, were adopted ; and wi^i their IKOvisions the Chief Justice and Mr. Justice Nelson, and the court for which they spoke, v.-ere familiar. Yet neitlier they, nor any other judge of the court, suggested that the doctrines announced in the opinions, from which I have quoted, were in any respect modi lied or affected l)y the amendments. "Nothing, in my judgment, could have a greater tendency to destroy the independence and autonomy of the States ; reduce them to a humili- ating and degrading dependencs upon the central government ; engender constant irritation ; and destroy that domestic tranquillity which it was one of the objects of the Constitution to insure, than the doctrine asserted in this case, that Congress can exercise coercive authority over judicial officers of the States in the discharge of their duties under State laws. It will be only another step in the the same direction towar.ds consolida- tion, when it assunres to exercise similar coercive authority over gov- ernors and legislators of the States. "The Constitution declares that a 'person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he ll;'d, be delivered up, to be removed to the State having jurisdiction of the crime.' And yet in the case of The Common- wealth of Kentucky vs. Dennison, where a fugitive from justice from Kentucky was demanded from the governor of Ohio, and on his refusal application was made to this court for a mandamus to compel him to perform his duty in this respect, it was held that there was no clause or provision in the Constitution which armed the government of the United States with authority to compel the executive of a State to xierform his duty, nor to inflict any punishment for his neglect or refusal. ' Indeed, such a power,' said Mr. Chief Justice Taney, speaking for the whole court, ' would place every State under the control and dominion of the general government even in the administration of its internal concerns and reserved rights.' — (24 How., 107.) And Mr. Justice Nelson, in the case of Collector vs. Day, where it was held that it was not competent for Congress to impose a tax upon the salary of a judicial officer of a State, said, that ' any government whose means employed in conducting 184 its operations are mafle subject to the control of another and distinct gov- ernment, can exist only at the mercy of that government.' I could add to these authorities, if anything more were required, that all the re- corded utterances of the statesmen who participated in framing the Con- stitution and urging its adoption, and of the publicists and jurists who have since studied its language and aided in the enforcement of its pro- visions, are inconsistent with the pretension advanced in this case by the counsel of the government. " The duties of the county judge in the selection of jurors were judi- cial in their nature. They involved the exercise of discretion and judg- ment. He was to determine who were qualified to serve in that charac- ter, am* for that purpose whether they possessed sound judgment and were free from legal exceptions. The law under which he acted had been in force for many years, and had been always considered by the judicial authorities of Virginia to be in conformity with its constitution, wliich inhibits the legislature from requiring of its judges any other than judi- cial duties. A test as to the character of an act is found in the power of a writ of mandamus to enforce its performance in a particular way. If the act be a judicial one, the writ can only require the judge to proceed in the discharge of his duty with reference to it ; the manner of per- formance cannot be dictated. Here the writ could not command the county judge to select as jurors any particular persons, black or white, but only to proceed and select such as are qualified, its command in that respect being subject to the limitation incident to all commands of such writs upon judicial officers toucliing judicial acts. " The thirteenth and fourteenth amendments are relied upon, as al- ready stated, to support the legislation in question. The thirteenth amendment declares 'That neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.' The fourteenth amendment, in its first section, which is the only one having any bearing upon the questions involved in this case, declares that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of cit- izens of the United States ; nor shall any State deprive any i^erson of life, liberty, or property without due process of law; nor denj' to any person within its jurisdiction the equal protection of the laws.' The fif- teenth amendment, which declares that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude,' is not material to the question before us, except as showing that it was only with respect to the suffrage that an interdict was in terms placed against legislation on account of race, color, or previous condition of servitude. Equality in their civil rights was in other waj's 1S5 scoured to persons of the colored nice ; and tlie hnllol Ixiiiii assured to them, an elTeetual means against unjust lejiislal ion svas phieed in tlieir liands. To each of these amendments a clause is achled autliori/.in^ Con- gress to enforce its ])rovisions ]>y ' aii])rojiriate legishition.' •'The history of thi' amendments is fresh in tiie recollection of all of us. They grew out of the late civil war and the events which followed it. They were primarily designed to give freedom to persons of the Afri- can race, prevent their future enslavement, make them citizens, jjrevent discriminating State legislation against their rights as freemen, and se- cure to them the ballot. The generality of the language used neces.sa- rily extends some of their provisions to all iier.sons of every race and color; but in construing the amendments and giving effect to Iheni, the occasion of their adoption and the luirposes tln^y a\ ere designed to attain should be always borne in mind. Xor should it Ix^ forgot I en thai they are additions to the previous amendments, and are to Ik" construed in con- nection with them and the original Constitution as one in.strninent. They do not, in terms, contravene or repeal anything which previously existed in the Constitution and those amendments. Aside from the ex- tinction of slavery, and the declaration of eitizen.ship, their provisions are merely prohibitory upon the States; and there is nothing in their lan- guage or purpose which indicates that they are to be construed or en- forced in any way different from that adopted with reference to previous restraints upon the States. The provision authorizing Congress to enforce them by appropriate legislation does not enlarge their scope, nor confer any authority which would not have existed independently of it. No legislation would be appropriate which should contravene the express prohibitions upon Congress previously existing, as, for instance, that it should not pass a bill of attainder or an ex post facto law. Nor would legislation be appropriate which should conflict with the implied prohi- bitions upon Congress. They are as obligatory as the express prohibi- tions. The Constitution, as already stated, contemplates the existence and independence of the States in all their reserved powers. If the States were destroyed there could of course be no United States. In the lan- guage of this court, in Collector vs. Day, ' without them the general gov- ernment itself would disappear from the family of nations.' Legislation could not, therelbre, l)e appropriate which, under pretence oi' proliil)iting a State from doing certain things, should tend to destroy it, or any of its essential attributes. To every State, as understood in the American sense, there must be, with reference to the subjects over which it has jurisdic- tion, absolute freedom from all external interference in the exercise of its legislative, judicial, and executive authority. Congress could not under- take to prescribe the duties of a State legislature and the rules it sliould follow, and the motives by which it should be governed, and authorize criminal prosecutions against the members if its directions were disre- garded; for the independence of the legislature is essential to the inde- pendence and autonomy of the State. Congress could not lay down rules 186 for the guidance of the State judiciary, and prescrihe to it the hiw and the motives by which it should be controlled, and if these were disre- garded, direct criminal proceedings against its members ; because a. judi- ciary independent of external authority is essential to the independence of the State, and, also, I may add, to a just and efficient administration of justice in her courts. Congress could not dictate to the executive of a State the bills he might approve, the pardons and reprieves he might grant, or the manner in which he might discharge the functions of his office, and assume to punish him if its dictates were disregarded, because his independence, within the reserved powers, is essential to thut of the State. Indeed, the independence of a State consists in the independence of its legislative, executive, and judicial officers, through whom alone it acts. If this were not so, a State would cease to be a self-existing and an indestructible member of the Union, and would be brought to the level of a dependent municipal corporation, existing only with such powers as Congress might prescribe. "I cannot think I am mistaken in saying that a change so radical in the relation between the federal and State authorities, as would justify legislation interfering with the independent action of the different de- partments of the state governments, in all matters over which the States retain jurisdiction, was never contemplated by the recent amendments. The i^eople in adopting them did not suppose tliey were altering the fundamental theory of their dual system of governments. The discus- sions attending their consideration in Congress, and before the people, when presented to the legislatures of the States for adoption, can be suc- cessfully appealed to in support of this assertion. The Union was pre- served at a fearful cost of life and property. The institution of slavery in u portion of the country was the cause of constant irritation and crimination between the people of tli3 S.ates where it existed and those of the free States, which finally led to a rupture between them and to the civil war. As the war progressed its sacrifices and burdens filled the people of the loyal States with a determination, that not only should the Union be preserved, but that the institution, which, in their judgment, had threatened its dissolution, should be abolished. Th;^ emancipation proclamation of President Lincoln expressed this determination, though placed on the ground of military necessity. The thirteenth amend- ment carried it into the organic law. That amendment prohibits slavery and involuntary servitude, except for crime, within the United States, or any place subject to their jurisdiction. It, language is not re- stricted to the slavery of any particular class. It applies to all men ; and embraces in its comprehensive language not merely that form of slavery which consists in the denial of personal rights to the slave, and subjects him to the condition of a chattel, but also serfage, vassalage, peonage, villanage, and every other form of compulsory service for the benefit, pleasure, or caprice, of others. It was intended to render every one within the domain of the Eepublic a freeman, with the right to follow the 187 ordinary pursuits of life without other restraints tlian such asaroaiiplicd to all others, and to enjoy equally witli llicm the caruiugs of his lalior. ]>ut it confers no political rights : it leaves the States free, as Ijefore its adoption, to determine wlio shall hohl tlieir oflices and i.artieii)ate in (lie ailniiiiisfration ol' their laws. A similar proliil)iti()ii ol' slavery and in- voluntary servitude was in the constitution of several Slates ]>revi(uis to its adoption by the United States: and it was never ludd to confi.te(l it. never eoii- templateil that the i)r()hihiti()!i was to l>e eiiloreed in any other way than throuiili the jiidieial t riliuiials, as previous pvohihit ions upon the >States ha;ress could, as an appropriate means to eutbrcc the proliibition, prescrilie criminal i)r()seeuti()ns ibr its infrac- tion against legislators, judges, and other officers of tlie States, it would be authorized to frame a vast portion of their laws, for there are few sub- jects upon which legislation can be had besides life, liberty, and property. In determining what constitutes a deprivation of property, it might pie- scribe the conditions upon wiiich property shall be aecinired and hehl ; and declare as to what sulvjeets proiierty rights .shall e.xist. In determin- ing what constitutes deprivation of liberty, it might prescribe in wliat way and by what means the liberty of the citizen shall be deemed i)ro- tected. In prescribing punishment for deprivation of life, it might pre- scribe a code of criminal procedure. All this and more might be done if it once be admitted, as the court asserts in this case, that Congress can authorize a criminal pi-o.secution for the infraction of the prohibitions. It cannot prescribe punishment without defining crime, and, therefore, must give expression to its own views as to what constitutes protection to life, liberty, and property. " The fourth clause in the first section of the amendment declares that no State shall 'deny to any person within its jurisdiction the equal pro- tection of the laws.' Upon this clause the counsel of the district judge chiefly rely to sustain the validity of the legislation in question. But the universality of the protection secured necessarily renders their posi- tion untenable. All persons within the jurisdiction of the State, whether permanent residents or temporary sojourners, whether old or young, male or female, are to be equally protected. Yet no one will contend that equal protection to women, to children, to the aged, to aliens, can only be secured by allowing i>er,sons of the class to which they belong to act as jurors in cases affecting their interests. The equality of protection intended does not requii-e that all persons shall be permitted to partici- pate in the government of the State and the administration of its laws, to hold its offices, or be clothed with any public trusts. As already said, the universality of the protection assured repels any such conclusion. "The equality of the protection secured extends only to civil rights as distinguished from those which are political, or arise from the ibrm of the government and its mode of administration. And yet the reach and influence of the amendment are immense. It opens the courts of the country to every one, on the same terms, for the security of his person and property, the prevention and redress of wrongs, and the enforcement of contracts; it assures to every one the same rules of evidence and modes of procedure ; it allows no impediments to the acquisition of property, and the pursuit of happiness, to which all are not subjected ; it suffers no other or greater burdens or charges to be laid upon one than such as are 190 eqnalh' borne by others; ami in the administration of criminal justice it permits no different or greater punishment to be imposed upon one than such as is prescribed to all for like offences. It secures to all persons their civil rights upon the same terms ; but it leaves political rights, or such as arise from the form of government and its administration, as they stood previous to its adoption. It has no more reference to them than it has to social rights and duties, which do not rest upon any positive law, though they are more potential in controlling the intercourse of individuals. In the consideration of questions growing out of these amendments much confusion has arisen from a failure to distinguish between the civil and the political rights of citizens. Civil rights are absolute and personal. Political rights on the other hand ai'e conditioned and dependent upon the discretion of the elective or appointing power, whether that be the people acting through the ballot, or one of the departments of their gov- ernment. The civil rights of the individual are never to be withheld, and may be always judicially enforced. The political rights which he may enjoy, such as holding office and discharging a public trust, are qual- ified because their possession depends on his fitness, to be adjudged by tliose whom society has clothed with the elective authority. The thir- teenth and fourteenth amendments were designed to secui'c the civil rights of all persons of every race, color, and condition, but tliey left to the States to determine to whom the possession of political power sliould be entrusted. This is manifest from the fact that when it was desired to confer political power upon the newly-made citizens of the States, as was done by inhibiting the denial to them of the suffrage on account of race, color, or previous condition of servitude, a new amendment was required. " Thedoctrine of the district judge, forwhich the counsel contend, would lead to some singular results. If, "when a colored person is accused of a criminal offence, the presence of persons of his race on the jury by which he is to be tried is essential to secure to him the equal protection of the laws, it would seem tliat the presence of such persons on the bench would be equally essential, if the court should consist of more than one judge, as in many cases it may ; and if it should consist of a single judge, that such protection would be impossible. A similar objection might he raised to the composition of any appellate court to which the case, after ver- dict, might be carried. " The position that in cases where the riglits of colored persons are con- cerned, justice will not be done to them unless they have a mixed jury, is founded upon the notion that in such cases white persons will not be fair and honest jurors. If this position be correct there ought not to be any white persons on the jury where the interests of colored porsons only are involved. Tliat jury would not be an honest or fair one, of which any of its members shouhl be governed in his judgment* by other consid- erations than tiie law and the evidence ; and that decision would hardly be considered just which should be reached by a sort of compromise, in which the prejudices of one race were set off against the prejudices of the other. To be consistent, those who hold this notion should contend that 191 in cases an'octinc moinl)ors of the colored race only tlie juries should I)C composed entirely of colored persons, and that the presiding jiidjie should he of the sume race. To this result the do(;trine asserted by the District Conrt loj-icallN- leads. The jury de medicUUc linf/tix, anciently allowed in England lor the trial of an alien, was expressly authorized by statute probably as much because of the diftercncc of language and customs V)e- tweeu him and Englisluuen. and the greater probability of his defence being more fully understood, as because it would be heard in a nion- friendly spirit by jnrors of his own country and language. " If these views as to the purport and meaning of the thirteenth and fourteenth amendments of the Constitution be correct, there is no warrant for the act of Congress under which the indictment in this (;ase was found, and the arrest and imprisonment of the petitioner were unlawful, and his release should be ordered. " The case is one which should not be delayed for the slow process of a trial in the court below, and a subsequent appeal, in case of convic- tion, to this court to be heard years hence. The Commonwealth of Vir- ginia lias represented to ns that the services of her judicial officer arc needed in her courts ibr the administration of justice between her citi- zens, and she asks that the highest tribunal of the Union will release him from his unlawful arrest, in order that he may perform the duties of his otfice. Those who regard the independence of the States in all their re- served powers— and this includes the indejiendence of their legislative, judicial, and executive departments— as essential to the successlnl mainte- nance of our form of government, cannot fail to view w ith the gravest apprehension for the future, the indictment, in a conit of the United States, of a judicial officer of a State for the manner in which he has dis- charged his duties under her laws, and of which she makes no complaint. The proceeding is a gross offence to the State : it is an attack upon her sovereignty in matters over which she has never surrendered her juris- diction. The doctrine which sust«ins it, carried to its logical results, would degrade and sink her to the level of a mere local municipal corporation ; for if Congress can render an officer of a State criminally liable for the manner in which he discharges his duties under her laws, it can prescribe the nature and extent of the penalty to which he shall be subjected on conviction ; it may imprison him for life or punish him by removal from office. And if it can make the exclusion of persons from jury service on account of race or color a criminal offence, it can make their exclusion from office on that account also criminal ; and, adopting the doctrine of the district judge in this case, the failure to appoint tl/bm to office will be presumptive evidence of their exclusion on that ground. To such a result are we logically led. The legislation of Congress is founded, and is sustained by this court, as it seems to me, upon a theory as to what constitutes the equal protection of the laws, which is purely speculative, not warranted by any experience of the country, and not in accordance with the understanding of the people as to the meaning of those terms since the organization of the government." 192 The decision of the court in this case attracted great attention throughout the country, for the views expressed seemed to indicate a wide departure from previous doc- trines, and to recognize in the general government a power over the States never before supposed to exist. All the principal journals contained comments upon it. The following extracts from a leading Republican paper of California express witli much force the sentiments of thoughtful men of all parties : "THE LAST STEP TOWARDS CENTRALIZATION. From the Record-Union of March 20th, 1880. "In the interpretation of the last judicial advance towards govern- mental ceutralizati(*a, the public judgment is warped by partisan preju- dice, and Republicans are led to believe that they have witnessed a fresh triumph for the principles of their party, when in reality they are un- wittingly consenting to the removal of all those checks to centralization which afford the strongest guarantees of popular liberty. The decision of the United States Supreme Court, in the matter of J. D. Coles and the Commonwealth of Virginia, petioners for the writ of habeas corpus, marks a decided forward step in that modern policy of governmental metamor- phosis which is gradually withdrawing from and denying to the States those elements of independent sovereignty and local self-government never surrendered by them to the federal government. So insidiously is this transformation proceeding, that it promises to have ext&nded beyond the possibility of clieck or retracement before the nation has clea'rly realized what it is that is being done. Twenty years ago the perception of the reserved riglits of the States was so much keener than now tliat such a decision as this would certainly have created a profound sensation, and as certainly have provoked the most energetic and earnest censure, whereas to-day it passes with no more notice than consists in the cus- tomary indorsement held indispensable by every party serf when a doc- trine supposed to be partisan in its character is promulgated. In fact the concernment here is not partisan, but national. Because the Com- monwealth of Virginia is a party to the proceeding, and the political rights of negroes are in question, it has been hastily concluded that the whole matter w* one of reconstruction, and that inasmuch as the court had ruled against the State, another defeat for the ' Secessionists ' was to be scored. It is necessary to point out that, though in truth reconstruc- tion is here dealt with, it is not alone the technical reconstruction of the Southern States, but the absolute reconstruction of the Union between the States that is now in course of being arranged. " It is neither necessary nor desirable to import any political bias into the consideration of this subject. It transcends all party issues, for it in- volvcs the qiifstiou ol' Uic liUiia- of tlie whole K'epiihlie. It is liere de- liberatelj^ set forth by the highest judicial authority that the constitu- tional amendments give the federal government powers over the States which are incompatible with the maintenance of any independenct; what- ever, and which not only facilitate but hasten the transformation of the government from a federation of sovereign States to a centralized demo- cratic absolutism. The doctrine now asserted goes the length of subor- dinating all State authority to federal authority ; for it involves the right of the latter to traverse all State legislation, to set aside the rules made by State legislatures for the government of the State Judiciary, to puiiish State officials for obeying State laws, and in a word, to reduce all tlie States to the level of mere municipalities, existing only at the will and caprice of Congress. The tendency in this direction lias, as we have oiteu pointed out, increased continually since the close of the war. All liistory shows that the diffusion of institutional self-government to the greatest possible extent is necessary to the securing of the largest meas- ure of freedom and the mo.st just and least burdensome government. This diffusion the American States enjoyed originally, and it is this which is threatened. The danger lies not alone in the strongly marked centralizing policy of the Supreme Court, but in the formidable support which the corrupt condition of politics gives to this movement. The greater a country becomes, the denser its population, the more complex its interests, the more necessary is it that the people everywhere should keep the levers of self-government in their own hands. For the removal ot authority to a distance always involves the weakening of responsibility and the encouragement of corruption." The second jiiiT ca>e from Viri>-lin:i ai'ose in tliis wise: Two colored persons in Virginia wei-e indicted in a county court in that State for the crime of murder. The person aUeged to ])avc 1:)een murdered was a white man. On heiiio- arraigned they pk^adcd not guiUy, and on their demand their trial was removed to the circuit court of the county. They there moved that the panel of jurors summoned, which was composed entirely of wdute persons, should he so moditied as to allow one-third of the numher to he per- sons of the colored race. This motion was denied, as it satisfactorily appeared that the jurors had been drawn from the jury-box according to law. The prisoners then presented a petition for the re- moval of the case to the United States Circuit C'ourt, alleg- ing, in suhstance. that the rights .secured by the law pro- viding for the equal civil riglits of all citizens of the 13 194 United States were denied to them, inasmuch as their ap- phcation for a inixed jniy had heen refused. It also al- leged that a strong prejudice existed in the community against them on the ground of their color, the person al- leged to have been murdered being a white man. Their petition was denied and the prisoners were separately tried and convicted of murder. Both ol)tained new trials, one by motion to the court, and one on appeal to the Court of Appeals. When they were brought up for a second trial they again moved to have the prosecution removed to the Circuit Court of the United States. This was also denied. They were then tried separately. In one case the jury dis- agreed and the prisoner was removed to jail to await another trial. In the other case the prisoner was convicted and he was sentenced to imprisonment in penitentiary. Whilst the prisoners were in jail, one w^aiting for a new trial and the other until he could be removed under his sentence to the penitentiary, they procured a copy of the record of proceedings against them and presented it to the Circuit Court of the United States for the Western Dis- trict of Virginia, then held by Alexander Hives, the dis- trict judge, with the petition for removal presented to the State court, and prayed that the prosecution might be there docketed and proceeded with. The circuit court granted the petition, directed the cases to be placed on the docket and authorized the clerk to issue a writ of habeas corpus to the marshal of the district to take the prisoners into his cus- tody, and to summon for their trial twenty-iive jurors to attend at the next term. A writ of hahe/is corpas was ac- cordingly issued, and pursuant to its command the prison- ers were taken into the custody of the marshal. There- upon the Commonwealth of Virginia presented a petition to the Supreme Court of the United States praying for a mandamus to be directed to the district judge, command- ing him to order tlie marshal to re-deliver the prisoners to her authorities, upon the ground that the judge in his proceedings had transcended the jurisdiction of his court, 195 and exercised powers not vested in liini. An order was aceordingh^ issued to the judi>-e to sliow caust' wliy ilic writ should not issue. In his return he a(hnitted tlie laets stated, and Justitied his action on the ^-rouinl that the re- tusal of the State court to set aside the panel of jurors, and to give the prisoners a jurv composed in part of tlieir own race, was a denial to them of the e([ual pnttection ol' the laws, and brotight their eases within the proxision of the act of Congress authoi-izing a removal of criminal prose- cutions to the federal courts. The attorney -general of Vir- ginia, contending that the return was insuiiicient, moved that the writ might be issued as pi'aved. The application was argued by the same counsel who argued the iirst jury case. The court granted the writ and ordered that the prisoners should be returned to the State court, but it placed its decision on the ground that the act of Congress, providing for the removal of criminal prosecutions from State to federal courts, was only intended for cases where the application was made l)efore a trial or final hearing had commenced, and that the denial of rights for which a removal was autliorized was such as resulted from the constitution or hnvs of the State and not such as might l)e manifested at the trial or hear- ing ; but it left open the question whether Congress could not authorize a transfer of a case to the federal courts at any stage of its proceedings wdienever a ruling is made denying to the defendant the equal protection of the laws. Judges Field and Clitibrd concurred in the judgment of the court that the prisoners should be I'e- turned to the othcers of Virginia from whose cttstody tliej' were taken ; that the prosecution against them should he re- numded to the State court from which it was removed, and that a mandamus to the district jtidge was an appropriate remedy to etiect those ends, but as tliey did not agree with all the views expressed in the opinion of the court, and there were other reasons equally cogent with those given for the decision rendered, Judge Field thonght propei- to 196 i>tate, in a separate opinion, the gronncls of their concur- rence. After discussing at length the right of the court to issue a mandamus in the case, and referring to tlie act of Congress, he said as follows : "By this enactment it appears that in order to obtain a removal of a prosecution from a State to a federal court — except where it is against a public officer or other person for certain trespasses or conduct not mate- rial to consider in this connection — the petition of the accused must show a denial of, or an inability to enforce in the tribunals of the State, or of that part of the State where the prosecution is pending, some right secured to him by the law providing for the equal rights of citizens or jiersons within the jurisdiction of the United States. But how must the denial of a right under such a law, or the accused's inability to enforce it in the judicial tribunals of the State, be made to appear? So far as the accused is concerned, the law requires him to state and verify the facts, and from them the court will determine whether such denial or inability exists. His naked averment of such denial or inability can hardly be deemed sufficient; if it were so, few prosecutions would be retained in a State court for insufficient allegations when the accused imagined he would gain by the removal. — (Texas vs. Gaines, 2 Woods, 844.) There must be such a presentation of facts as to lead the court to the conclusion that the averments of the accused are well founded. There are many ways in which a person may be denied his rights, or be iiuable to enforce them in the tribunals of a State. The denial or ina- bility may arise from direct legislation, depriving him of their enjoy- ment or the means of their enforcement, or discriminating against him or the class, sect, or race to which he belongs. And it may arise from popular prejudices, passions, or excitement, biasing the minds of jurors and judges. Religious animosities, political controversies, antagonisms of race, and a multitude of other causes will always operate, in a greater or less degree, as impediments to the full enjoyment and enforcement of civil rights. We cannot think that the act of Congress €ontemplated a denial of, or an inability to enforce one's rights from these latter and similar causes, and intended to authorize a removal of a prosecution by reasofi of them from a State to a federal court. Some of these causes have al- ways existed in some localities in every State, and the remedy for them has been found in a change of the place of trial to other localities where like impediments to impartial action of the tribunals did not exist. The civil rights act, to which reference is made in the section in question, was only intended to secure to the colored race the same rights and priv- ileges as are enjoyed by white persons ; it was not designed to relieve them from those obstacles in the enjoyment of their rights to which all other per- sons are subject, and which grow out of popular prejudices and passions. "The denial of rights or the inability to enforce them, to which the section refers, is, in n\y opinion, such as arises from legislative action of 19 Iho State, as, for oxaniple, an act oxcliidiiii;' colored i)er.soi)s from being witnesses, inakin;>; contracts, a','([uirintection of the laws.' As the State, in the administration of its government, acts through its executive, legislative, and judicial departments, the inhibition applies to them. But the executive and judicial departments only construe and enforce thelawsof the State ; the inhibition, therefore, is in effect against passing and enforcing any laws which are designed to accomplish the ends forbidden. If an executive or judicial officer exeix'ises power with which he is not invested l)y law, and does unauthorized acts, the State is not responsible for them. Tlie action of tlie judicial officer in such a case, where the rights of a citizen under the laws of the United States'are dis- regarded, may be reviewed and corrected or reversed by this court; it cannot be imputed to the State, so as to make it evidence that she in her so\ ereign or legislative capacity denies the rights invaded or refuses to allow their enforcement. It is merely the ordinary case of an erro- neous ruling of an inferior tribunal. Nor can the unauthorized action of an executive officer, impinging upon the rights of the citizen, be taken as evidence of her intention or policy so as to charge upon her a denial of such rights. " If these views are correct, no cause is shown in the petition of the prisoners that justified a removal of the prosecutions against them to the federal court. No law of Virginia makes any discrimination against per- sons of the colored race, or excludes them from the jury. The law re- specting jurors provides that ' all male citizens, twenty-one years of age and not over sixty, who are entitled to vote and hold office under the con- stitution and laws of the State,' with certain exemptions not material to the question presented, may be jurors ; and it authorizes an annual selec- tion in each county, by the county judge, from the citizens at large, of from one to three hundred persons, whose names are to be placed in a box, and from them the jurors, grand and jjetit, of the county are to be drawn. There is no restriction placed upon the county judge in selecting 198 them, except that they shall be such as he shall think ' well qualified to serve as jurors, being persons of sound judgment and free from legal ex- ception.' The mode thus provided, properly carried out, cannot fail to secure competent .jurors. Cei'tain it is that no rights of the prisoners are denied by this legislation. The application to the State court, upon the refusal of which the peti.ion was presented, was for a venire composed of one-third of their race, a proceeding wholly inadmissible in any jury sys- tem which obtains in the several States. " From the return of the district judge it would seem that in his judg- ment the presence of persons of the colored race ou the jury is essential to secure to them ' the equal protection of the laws ;' but how this con- clusion is reached is not apparent, except upon the general theory that such protection can only be aftbrded to parties when persons of the class to whicli they belong are allowed to sit on their juries. The correctness of this theory is contradicted by every day's experience. Women are not allowed to sit on juries ; are they thereby denied the equal protection of the laws ? -Foreigners resident in the country are not permitted to act as jurors, yet they are protected in their rights equally with citizens. Persons over sixty years of age in Virginia are disqualified as jurors, yet no one will pretend that they do not enjoy the equal protection of the laws. If when a colored person is indicted for a criminal offence it is es- sential, to secure to him the equal protection of the laws, that persons of his race should be on the jury by which he is tried, it would seem that the presence of such persons on the bench should be equally essential, where the court consists of more than one judge ; and that if it should consist of only a single judge, such protection would be impossible. To such an absurd result does the doctrine lead, which the circuit court an- nounced as controlling its action. " The equality of protection assured by the fourteentli amendment to all persons in the State does not imply that they shall be allowed to par- ticipate in the administration of its laws, or to hold any of its offices, or to discharge any duties of a public trust. The nniversality of the pro- tection intended excludes any such inference. Were this not so, aliens resident in the country, or temporarily here, of whom there are many thousands in each State, would be without that equal protection which the amendment declares that no State shall deny to any person within its jurisdiction. " It follows from these views as to the meaning and purpose of the act of Congress that the removal of the prosecution in this case from the State to the federal court is unauthorized by it ; and that the order of the circuit court to the marshal to take the prisoners from the custody of the State authorities is illegal and void. " The second objection of the Commonwealth to the legality of the re- moval is equally conclusive. The prosecution is for the crime of mur- der, committed within her limits by persons and at a place subject to her jurisdiction. The offence charged is against her authority and laws, and 1!>9 slie alone has tlic rijiht to iiuiuire into its coiuinissioii. ami to puiii.sli tlie ot^ender. IMiinlcr is not an ofi'ence against the United States, except when committed on an American vessel on the higli seas, or in some port or liavtn without the jurisdiction of the State, or in the District of Co- lumbia, or in the Territories, or at other places where the national gov- ernment has exclusive jurisdiction. The offence within the limits of a State, except where jurisdiction has been ceded to the I'nited States, is as much beyoud the jurisdiction of their courts as though it had been committed on another continent. The prosecution of the olVence in suclj a case does not, therefoi'c, arise under the Constitution and laws of the United States; and the act of Congress which attempts to give the fed- eral courts jurisdiction of it is, to my mind, a clear infraction of the Con- stitution. That instrument defines and limits the judicial power of the United States. " It declares, among other things, that the judicial power shall extend to cases in law and equity arising under the Constitution, laws, and trea- ties of the United States, and to various controversies to which a State is a party ; but it does not include in its enumeration controversies between a State and its own citizens. There can be no groiind, therefore, for the- assumption by a federal court of jurisdiction of offences against the laws of a State. The judicial power granted by the Constitution does not cover any such case or controver.sy. And whilst it is well .settled that the exercise of the power granted maj* be extended to new cases as they arise under the Constitution and laws, the power itself cannot be enlarged by Congress. The Constitution creating a government of limited powers puts a bound upon those which are judicial as well as those which are legislative, which cannot be lawfully passed. " This view would seem to be conclusive against the validity of the attempted removal of the prosecution in this case from the State court. The federal court could not in the iirst instance have taken jurisdiction of the offence charged, aud summoned a grand jury to present an indict- ment against the accused ; and if it could not have taken jurisdiction at iirst. it cannot do so upon a removal pf the i^rosecution to it. The juris- diction exercised upon the removal is original and not appellate, as is sometimes erroneously asserted, for, as stated hy Chief Justice Mar-shall in Marburg- vs. Madison, already, cited, it is of the essence of appellate jurisdiction that it revises and corrects proceedings already had. The removal is only an indirect mode by which the federal court acc[uires original jurisdiction. — (Railroad Co. vs. Whitton, 13 Wall., 287.) '' The Constitution, it is to be observed, in the flistribution of the judi- cial power, declares that in the cases enumerated in which a State is a party, the Supreme Court shall have original jurisdiction. Its framers seemed to have entertained great respect for the dignity of a State, v,iiich was to remain sovereign at least in its reserved powers, notwithstanding the new government, and theretbre provided that when a State should have occasion to seek the aid of the judicial power of the new govern- 200 ment, or should be brought under its subjection, that power shoukl be invoked only in its highest tribunal. It is difficult to believe that the wise men who sat in the convention which framed the Constitution and advocated its adoption, ever contemplated the possibility of a State being required to assert its authority over offenders against its laws in other tri])uiKils than those of its own creation, and least of all in an inferior tribunal of the new government. I do not think I am going too far in asserting that had it been supposed a power so dangerous to the inde- pendence of the States, and so calculated to humiliate and degrade them, lurked in any of the provisions of the Constitution, that instrument would never have been adopted. ''There are many other difficulties in maintaining the position of the circuit court, which the counsel of the accused and the Attorney- (ieneral have earnestly defended. If a criminal prosecution of an offen- der against the laws of a State can be transferred to a federal court, what ofiScer is to prosecute the case ? Is the attorney of the Commonwealth to follow the case from his county, or will the United States district attorney take charge of it ? Who is to summon the witnesses and pro- vide for their fees ? In whose name is judgment to be pronounced ? If the accused is convicted and ordered to be imprisoned, who is to enforce the sentence? If he is deemed worthy of executive clemency, who is to exercise it— the governor of the State, or the President of the United States? Can the President pardon for an offence against the State? Can tlie governor release from the judgment of a federal court? These and other (piestions which might be asked show, as justly observed by the counsel of Virginia, the incongruity and absurdity of the attempted proceeding. " Undoubtedly, if in the progress of a criminal prosecution as Avell as in the progress of a civil action, a question arise as to any matter under the Constitution and laws of the United States, upon which the defend- ant may claim protection, or any benefit in the case, the decision thereon may be reviewed by the federal judiciary, which can examine the case so far and so far ouly as to determine the correctness of the ruling. If the decision be erroneous in that respect it may be reversed and a new trial had. Provision for such revision was made in the 25th section of the judiciary act of 1789 and is retained in the Revised Statutes. That great act was penned by Oliver Ellsworth, a member of the convention which framed the Constitution, and one of the early chief justices of this court. It may be said to reflect the views of the founders of the Kepublic as to the proper relations between*the federal and State courts. It gives to the fed- eral courts the ultimate decision of federal questions without infringing upon the dignity and independence of the State courts. By it harmony between them is secured, the rights of both federal and State governments maintained, and every privilege and immunity which the accused could assert under either can be enforced." 201 The Ehufion O/.^r,^' from Oliio and Mari/hniil : Ex-parf,' Clarke, 'rial E.r-p'irte Siehold. Tin' Coiistitntion declares that 'Mlie tiiiios, pUu-os, and iiiamicro!" holding elections for senators and rcprc-sfiita- tives shall be prescribed in earh Slate by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, exeept as to the jilaccsoi' cdioosing senators." Congress is tlius authorized to make sueh reg- ulations itself or to alter those prescribed by tlie States, the making or alteration end)ra('ing every pai-ticular of time, place, and manner except the place of idioosing sen- ators. The regulations, however, can only extend to the designation of the mode in which the will of the voter shall he expressed and ascertained. The power is not lodged in Congress to prescribe the qualifications of voters; that matter is left to the States, subject to the provision that the electors of representatives in Congress must have the qualifications required of electors of the most numer- ous branch of the State legislature, and the provision of the fifteenth amendment relating to the sufirage of tlie colored race. Whatever is involved in the nvinncr of holdhi'i Congress can prescribe, and it is possible that so far as the election of representatives is concerned this may embrace all necessary provisions for ascertaining the names of the voters — thus sanctioning a registry law- — and the ap- pointment of officers of election to collect the votes and announce the result. So far as the election of senators is concerned, whatever regulations are prescribed, they must be such as a legislative Itody can conform to without im- pairment of its independent functions. The constitutional provision was adopted in order that the general government might have the means of its own preservation against a possible dissolution from the re- fusal or neglect of the States to provide for the election of representatives. To obtain this end in case of hostile action of the States, Congress must be able to authorize all necessary measures to ensure the holding of an election. 202 Xo one disputes this doctrine. The dispute bet\Yeen -the two great [larties of the country u^ion the election laws of Congress has not arisen from any exercise of the powers conferred by the clause of the Constitution in question, for no regulations have been adopted by Con- gress as to the holding of the elections, except as to the times of electing representatives and senators, and in case of senators by requiring the separate and joint action of the two houses of of the State legislatures. These regula- tions require no interference in their execution with the officers of the State. The dispute has arisen from the attempt of Congress to enforce the regulations prescribed by the State and to exercise a supervision over its officers, interfering with their action, and endeavoring to arrest and punish them for alleged violations of State laws. Previous to the election laws of Congress it was sup- posed to be a well-established doctrine that State officers were responsible only to the State for the manner in which they discharged their duties under State laws ; tliat when- ever the federal government desired to enforce by coer- cive measures and punitive sanctions the performance of a dut}^ wdiich it could prescribe, it was bound to appoint its own officers, upon whom its power could be exerted; and that if it entrusted the performance of such duty to officers of a State, it was obliged to take their agency on the terms which the State permitted. In other words, although Congress could l)y law presciibe I'cgulations for the election of representatives, and appoint its own oliicers for their execution, if it entrusted their execution to State officers it must take their agency upon the conditions which the State might exact. If on the other hand regu- lations were prescribed by the State, it was for the officers of the State to enforce them, and not the officers of the United States. Again, regulations for the election of State officers can only be prescribed by the State, and anj^ regulations by Congress for the election at the same time of representa- 203 tivos in ConiiToss must lie so iVaniofl as not to interfere with the Tree elerlion of State oifu-crs utKh'r tlie State hiws. Complaint has been made that hy the hiws of C\)nii-ress that freedom of election was invaded. This subject came up for consideration before the Su- preme Court of the United States at the October term, 1870, At an election held in the First Congressional Dis- trict of Oliiojin October, 1878, at which a rei)resentative in Congress was voted for, one Clarke was appointed under the laws of the State, and acted as a judge of election at a pre- cinct in one of the wards of Cincinnati. At an election held in the Fourth and Fifth Congressional Districts of Mary- land, in November, 1878, at which a like representative was voted for, one Siebold and four others were appointed under the laws of the State and acted as judges of election at diti'erent precincts in the city of Baltimore. For al- leged misconduct as such otficers of election these }iarties were indicted in the Circuit Court of the United States for their respective districts, tried, convieted, and sentenced to imprisonment for twelve months, and in some of the cases also to pay a tine. Clarke was charged in the in- dictment with having violated a law of the State of Ohio. The parties from Maryland were charged with having pre- vented federal officers from interfering with them and su- pervising their action in the execution of the laws of that State. All of them petitioned the Supreme Court for writs of hdhciis rorpi'^', praying that they might be released, on the alleged ground that their imprisonment was unlaw- ful, in that the acts of Congress under whii-h they were prosecuted were unconstitutional and void. The cases were elaborately argued by George Iloadly, of Cincinnati, for the petitioner from Ohio ; by Bradley Johnson, of Baltimore, for the petitioners from Maryland, and by the Attorney-General of the United States on the other side. The Supreme Court held that the acts of Congress were valid, and that the parties were rightly indicted and con- 204 victed. They, tliei'efore, refused the wi-its. Judii'es CHfi:V)rd and Field dissented from the jiidgnuMit, JudiiX" Field rend- ing a dissenting opinion. In it he eoufined himself prin- cipally to the case of the petitioner from Ohio, as the principle which governed that case dis[)0sed of all of them; for, as he said, if Congress could not punish an officer of a State for the manner in which he discharged his duties under her laws, it could not subject him to the supervision and control of others in the [lei'formance of such duties, and punish him for resisting their interference. In the cases from Maryland, it appeared that the laws ot the State under which the petitioners were appointed judges of elec- tion, and the registration of voters for the election of 1878 was made, were not in existence when the act of Congress was passed providing for the appointment of supervisors to examine the registration and scrutinize the lists, and of special deputy mai'shals to aid and protect them. The act of Congress was [)assed in 1871, and re-puhlislied in the Revised Statutes, which are declarator}' of the law in force, December 1st, 1873. The law of Maryland, under which the registration of voters was had, was enacted in 1874, and the law under which the judges of election were ap- pointed was enacted in 187(:), and these judges were required to possess ditterent qualitications from those required of judges of election in 1871 and 187->. The act of Congress upon which the indictment of the petitioner of Ohio was founded is contained in section 5,515 of the Revised Statutes, which declares that " every officer of an election, at which any representative or del- egate in Congress is voted for, whether such officer of election be appointed or created by or under any law^ or authority of the United States, or by or under any State, territorial, district, or municipal law or authority, who ne- glects or i-efuses to perform any duty in regard to such election required of him by any law^ of the United States, or of any State or Territory thereof ; or who violates any duty so imposed; or who knowingly does any acts thereby 20;> nnantli(H'i/iMl, willi iiitciu to afi't-ct any siidi t'lrctioii orllic rosult iluTc'oi', . . . sluill 1h' punislu'd as pi-cKcriLcMr' in a [iri'xioiis siH-tioii, that is, liy a I'nu- not exceeding one tliousaiul dollars, or in4»risonnient not more than one year, or hy hoth. The provisit):is of the aet of Congress relating to the appointment o! su[»ei'viso]-8 of election, ioi- resisting and interfering with whom the petitioners from Maryland were convicted, authorized the supervisors to supervise tlie ac- tion of the State officers fi'oni the registration of voters down to tlie close of the polls on the day of election; re- quired the marshals to aid and protect them; ])rovided for the appointment of special deputy marshals in towns and cities of over twenty thousand inhahitants; and invested them witli a power to arrest and take into custody persons without process, more extended than has ever before been entrusted to any one in this country in time of peace. In his dissenting opinion Judge Field, speaking for him- self and associate, said as follows: " In wl);it I have to say I shall endeavor to show; 1st, that it is not competent for Congress to punish a State officer for the manner in Avhich he discharges duties imposed upon him by the laws of the State, or to subject him in the performance of such duties to the supervision and control of others, and punish him for resisting their interference : and, 2d, that it is not competent for Congress to make the exercise of its puni- tive power dependent ui)on the legislation of the States. "There is no doubt that Congress may adopt a law of a State, but in that case the adopted law must be entbrced as a law of the United States. Here there is no pretence of such adoption. In the case from Ohio it is for the violation of a State law, not a law of the United States, that the indictment was found, The judicial power of the United States does not extend to a case of that kind. The Constitution defines and limits that power. It declares that it shall extend to cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority ; to cases affecting ambassadors, other public min- isters and consuls; to cases of admiralty and maritime jurisdiction, and to various controversies to which t^he United States or a State is a party, or between citizens of different States, or citizens of the same State claim- ing lands under grants of different States, or between citizens of a State and any foreign State, citizens, or subjects. The term controversies as here used refers to such only as are of a civil as distinguished from those 206 of a criminal nature. Tlie judicial power thus delined may be applied to new cases as they arise under the Constitution and laws of the United States, but it cannot be enlarged by Congress so as to embrace cases not enumerated in the Constitution. It has been so held by this court from the earliest period. It was so adjudged in 1803 in Marbury vs. Mad- ison, and the adjudication has been affirmed in numerous instances since. This limitation upon Congress would seem to be conclusive of the case from Ohio. To authorize a criminal prosecution in the fed- eral courts for an offence against a law of a State, is to extend, the judi- cial power of the United States to a case not arising under the Con- stitution or laws of the United States. "But there is another view of this subject which is equal I3' conclusive against the jurisdiction of the federal court. The act of Congress asserts a power inconsistent with, and destructive of, the independence of the States. The right to control their own officers, to prescribe the duties they shall perform, without the supervision or interference of any other authority, and the penalties to which they shall be subjected for a viola- tion of duty is essential to that independence. If the federal government can punish a violation of the laws of the State, it may punish obedience to them, and graduate the punishment according to it^ own judgment of their propriety and wisdom. It may thus exercise a control over the legislation of the States subversive of all their reserved rights. However large the powers conferred upon the government formed by the Constitu- tion, and however numerons its restraints, the right to enforce their own laws by such sanctions as they may deem appropriate is left, where it was originall}% with the States. It is a right which has never been sur^ rendered. Indeed a State could not be considered as independent in any matter, with respect to which its officers, in the discharge of their duties, could be subjected to punishment by any external authority ; nor in which its officers, in the execution of its laws, could be subject to the supervision and interference of others. " The invalidity of coercive measures by the United States, to compel an officer of a State to perform a duty imposed upon him by a law of Congress, is asserted in explicit terms in the case of The Commonwealth of Kentucky vs. Dennison. — (24 How., 66.) The Constitution declares that ' a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on de- mand of the executive authority of the State from which he tied, be de- liveied up to be removed to the State having jurisdiction of the crime.' And the act of Congress of 1793, to give effect to this clause, made it the duty of the executive authority of the State, upon the demand mentioned, and the production of a properly authenticated copy of the indictment or affidavit charging the person demanded with the commission of treason, felony, or other crime, to surrender the fugitive. The governor of Ohio having refused upon a proper demand to surrender a fugitive from jus- tice from Kentucky, the governor of the latter State applied to this 207 court lor a UKUKlanius lo (•(iiniicl the pcrrDnnancc ol'tliat duty. P.nl llic court, after observin<; that, thoiiiih tlif words 'il shall he the duty,' iu ordinary legislation ini]ilicd the assertion of the jiowcr to eoniniand and to eausc oludii'iice. said, that lookino to thr suhj. el -matter of tlie law and -tlie relations which the United i^tates and the sev.-ral States hear to eaeli other," it was of opinion that the words were not used as manda- tory and compulsory, but as declaratory of the moral duty created, when Congress liad provided the mode of carrying the provision into execution. 'The act does not provide," the court added, ' any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the State; nor is there any clause or })ro- Tision in the Constitution which arms the government of tlu- United States with this power. Indeed, such a power would place every State under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights. And we think it clear that the federal government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it ; for if it possessed this power it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. It is true that Congress may authorize a particular State officer to perform a particular duty ; but if he declines to do so, it does not follow that he may be coerced or punished for his refusal. And we are very far from supposing that in using this word ' duty,' the statesmen who framed and pa.ssed the law, or the President who approved and signed it, intended to exercise a coercive poAver over State officers not warranted by the Constitution.' And again : ' If the governor of Ohio refuses to discharge this duty, there is no power dele- gated to the general government, either through the judicial department or any other department, to use any coercive means to compel him.' " If it be incompetent for the federal government to enforce, by coer- cive measures, the performance of a plain dut,y imj)osed by a law of Con- gress upon the executive officer of a State, it would seem to be equally incompetent for it to enibrco, hj similar nieasures, the performance of a duty imposed upon him by a law of a State. If Congress cannot impose upon a State officer, as such, the performance of any duty, it would seem logically to follow that it cannot subject him to punishment lor the neg- lect of such duties as the State may impose. It cannot ])unish for the non-performance of a duty which it cannot prescribe. It is a contradic- tion in terms to say that it can inflict punishment for disobedience to an act, the performance of which it has no constitutional power to command. " I am not aware that the doctrine of this case, which is so essential to the harmonious working of the State and federal governments, has ever been ciiialitied or departed from by this court until the recent decisions in the Virginia cases, of which I shall presently speak. It is true that, 208 at an early period in the history oftlie government, laws were passed by Congress anthoriziug State courts to entertain jurisdiction of proceedings by the United States, to enforce penalties and forfeitures under the reve- nue laws, and to hear allegations, and take proofs if applications were made for their remission. To these laws reference is made in the Ken- tucky case, and the court observes, that the powers, which they conferred, were for some years exercised by the State tribunals without objection, until in some of the States their exercise was declined because it inter- fered with and retarded the performance of duties which properly be- longed to them as State courts ; and in other States because doubts arose as to the power of the State courts to inflict penalties and forfeitures for offences against the general government, unless specially authorized to do so by the States ; and that the co-operation of the States in those cases was a matter of comity which the several sovereignties extended to one another for their mutual benefit, and was not regarded by either party as an obligation imposed by the Constitution. " It is to be observed that by the Constitution the demand for the sur- render of a fugitive is to be made by the executive authority of the State from which he has fled, but it is not declared upon whom the demand shall be made. That was left to be determined by Congress, and it provided that the demand should be made upon the executive of the State where the fugitive was found. It might have employed its own agents, as in the enforcement of the fugitive slave law, and compel them to act. But in both cases, if it employed the officers of the State it could not restrain nor coerce them. " Whenever, therefore, the federal government, instead of acting through its own officers, seeks to accomplish its purposes through the agency of officers of the States, it must accept the agency witli the conditions upon wliich the officers are permitted to act. For example, the Constitution in- vests Congress with the 'power to establish a uniform rule of naturaliza- tion ;' and this power, from its nature, is exclusive. A concurrent power in the States would prevent the uniformity of regulations required on-the subject. — (Chirac vs. Chirac, 2 Wheaton, 259; The Federalist, No. 42.) Yet Congress, in legislating under this power, has authorized courts of record of the States to receive declarations under oath by aliens of their intention to become citizens, and to admit them to citizenshii) after a limited period of residence, u^ion satisfactory proof as to character and attachment to the Constitution. But when Congress prescribed the con- ditions and proof upon which aliens might, by the action of the State courts, become citizens, its power ended. It could not coerce the State courts to hold sessions for such applications, nor fix the time when they .should hear the applicants, nor the manner in which they should admin- ister the required oaths, nor regulate in any way their procedure. It could not compel them to act by mandimus from its own tribunals; nor subject their judges to criminal prosecution for th^ir non-action. It could accept the agency of those courts only upon such terms as the States :2(ili should pr('sci'il)('. Tlic suinc tiling is true in all cases where the ajijency of State officers is used ; and this doctrine applies with special force to judges of elections at which numerous State officers are chosen at the same time with representatives to Congress. So far as the election of State officers and the registration of voters for their election are con- cerned, the federal government has confessedly no authority to interfere. And yet the supervision of and interference with the State regulations, sanctioned by the act of Congress, when representatives to Congress are voted for, amount ])ra<;tical]y to a supervision of and an interference with the electiouof State officers, and constitute a jjlain encroachment upon the rights of the States, which is well calculated to create irritation towards the federal government, and disturb the harmony that all good and pa- triotic men should desire to exist between it and the State governments. " It was the purpose of the framers of the Constitution to create a government which could enforce its own laws, through its own oiiicers and tribunals without reliance upon those of the States, and thus avoid the principal defect of the government of the Confederation: and they fully accomplished their purpose, for, as said by Chief Justice Marshall in the McCullough case, ' No ti'ace is to be found in the Constitution of an intention to create a dependence of the federal government on the govern- ments of the States for the execution of the great powers assigned to it. Its means are adecxuate to its ends, and on those means alone was it ex- pected to rely for the accomplishment of its ends.' When, therefore, the federal government desires to compel by coercive measures and punitive sanctions the performance of any duties devolved upon it by the Consti- tution, it must appoint its own officers and agents, upon whom its power can be exerted. If it sees lit to entrust the performance of such duties to officers of a State, it must take their agency, as already stated, upon the conditions which the State may impose. The co-op)erative scheme to which the majority of the court give tlieir sanction, by which the gen- eral government may create one condition and the States another, and each make up for and supplement the omissions or defects in the legisla- tion of the other, touching the .same subject, with its separate penalties for the same oifence, and thus produce a harmonious mosaic of statutory regulation, does not appear to have struck the great jurist as a feature in our system of goNernment or one that had been sanctioned by its thund- ers. " It is true that since the recent amendments of the Constitution there has been legislation by Congress asserting, as in the instance before us, a direct control over State otficers, which previously was never supposed to be compatible with the independent existence of the States in their reserved ijowers. Much of that legislation has yet to be brought to the test of judicial examination ; and until the recent decisions in the Vir- ginia cases, I could not have believed that the former carefully considered and repeated judgments of this court upon provisions of the Constitution, and upon the general character and pui'poses of that instrument, would 14 210 have been disregarded and overruled. These decisions do indeed, in my judgment, constitute a new departure. They give to the federal govern- ment the power to strip the States of the right to vindicate their author- ity in their own courts against a violator of their laws, when the trans- gressor happens to be an officer of the United States, or alleges that he is denied or cannot enforce some right under their laws. And they assert for the federal government a power to subject a judicial officer of a State to iHinishment for the manner in which he discharges his duties under her laws. The power to punish at all existing, the nature and extent of the punishment must depend upon the will of Congress, and may be carried to a removal from office. In my judgment, and I say it without intend- ing any disrespect to ray associates, no such advance has ever before been made toward the conversion of our federal system into a consolidated and centralized government. I cannot think that those who framed and ad- vocated, and the States which adopted the amendments, contemplated any such fundamental change in our theory of government as those de- cisions indicate. Prohibitions against legislation on particular subjects previously existed, as, for instance, against passing a bill of attainder and an ex post facto law, or a law impairing the obligation of contracts ; and in enforcing those prohibitions it was never supposed that criminal pros- ecutions could be authorized against members of the State legislature for passing the prohibited laws, or against members of the State judiciary for sustaining them, or against executive officers for enforcing the judi- cial determinations. Enactments prescribing such prosecutions would have given a fatal blow to the independence and autonomy of the States. So of all or nearly all the prohibitions of the recent amendments the same doctrine may be a.sserted. In few instances could legislation by Congress be deemed appropriate for their enforcement, which should pro- vide for the annulment of in'ohibited laws in any other way than through the instrumentality of an appeal to the judiciary, when they impinged upon the rights of parties. If in any instance there could be such legis- lation authorizing a criminal prosecution for disregarding a prohibition, that legislation should define the offence and declare the punishment, and not invade the independent action of the different departments of the State governments within their ai>propriate spheres. Legislation by Congress can neither be necessary nor appropriate which would subject to criminal prosecution State officers for the performance of duties pre- scril>ed by State laws, not having for their object the forcible subversion of the government. '■ The clause of the Constitution, upon which reliance was placed by counsel, on the argument, for the legislation in question, does not, as it seems to me, give the slightest support to it. That clause declares that ' the times, places, and manner of holding elections for senators and rep- resentatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regula- tions, except as to the places of choosing senators.' The power of Con- {.'iTssllius conlVMied is ritlicr to alter tlie icjiulations i)resoril)cd by tlic State or to make new ones; the alteration or new creation enibraeinji every partienlar of time, i)lace. and manner, exeej)! the. place of choosing senators. But in neitlier mode nor in any resiiect has Congress inter- fered with the regnlations i)res(ril)ed by the leiiislatnre of Ohio, or with those prescribed by the legiskiture of Maryhxnd. It has not altered them or made new ones. It has simply provided for (he ai)p()intment of oHi- i-ers to snpervise tlie execution of the State laws, and of marshals to aid and i)rote(t them in such supervision, and has added a new penalty for disolirying those laws. This is not euibrciug an altered or a new regu- lation. NNhatever Congress may properly do touching the regulations, one of two things must follow ; either the altered or the new regulation remains a State law, or it bec(mies a law of Congress. If it remain a State law, it must, like other laws of the State, be enforced through its instrumentalities and agencies, and with the penalties which it may see tit to f)rescribe, and without the supervision or interference of federal of- ficials. If, on the other hand, it become a law of Congress, it must be carried into execution by such officers and with such sanctions as Con- gress may designate. But as Congress has not altered the regulations for the election of representatives prescribed by the Legislature of Ohio or of Maryland, either as to time, place, or manner, nor adopted any regu- lations of its own, there is nothing for the federal government to enforce on the subject. The general authority of Congress to pass all laws nec- essary to carry into execution its granted powers, supposes some attempt to exercise those powers. There must, therefore, be some regulations made by Congress, either by altering those prescribed by the State, or by adopting entirely new ones, as to the times, places, and manner of hold- ing elections for representatives, before any incidental powers can be in- voked to compel obedience to them. In other words, the implied power cannot be invoked until some exercise of the express power is attempted, and then only to aid its execution. There is no express power in Con- gress to enforce State laws by imposing penalties for disobedience to them; its punitive power is only implied as a necessary or proper means of enforcing its own laws ; nor is there any power delegated to it to su- pervise the execution by State officers of State laws. "If this view be correct, there is no power in Congress, independently of all other considerations, to authorize the appointment of supervisors and other officers to superintend and interfere with the election of repre- sentatives under the laws of Ohio and Maryland, or to annex a penalty to the violation of those laws, and the action of the circuit courts was Avithout jurisdiction and void. The act of Congress in question was })a.ssed, as it seems to me, in disregard of the object of the constitutional provision. That was designed simply to give to the general government the means of its own preservation against a possible dissolution from the hostility of the States to the election of representatives, or from their neglect to provide suitable means ibv holding such elections. This is 212 evident from the language of its advocates, some of them members of the convention, when the Constitution was presented to the country for adop- tion. In commenting upon it in his report of the debates, Mr. Madison said, that it was meant ' to give the national legislature a power not only to alter the jn-ovisions of the States, but to make regulations, in case the States should fail or refuse altogether:— (EUiotVs Debates, 402.) And in the Virginia convention called to consider the Constitution, he observed that ' it was found Impossible to fix the time, place, and manner of the election of representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State govern- monts, as being best acquainted Avith the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity, and prevent its own dissolution.'' — (3 Elliott's Debates, 367.) And in the Federalist. Hamilton said, that the propriety of the clause in question rested ' upon the evidence of the plain proposition that ever^^ government should contain in itself the means of its own preservation.' " Similar language is found in the debates in conventions of the other States and in the writings of jurists and statesmen of the period. The conduct of Rhode Island was referred to as illustrative of the evils to be avoided. That State was not represented by delegates in Congress for years, owing to the character and views of the i)revailing party; and Congress was often embarrassed by their absence. The same evil, it was urged, might result from a similar cause, and Congress should, therefore, possess the power to give the people an opportunity of electing represen- tatives if the States should neglect or refuse to make the necessary regu- lations. '■ In the conventions of several States which ratified the Constitution, an amendment was pi-oposed to limit in express terms the action of Con- gress to cases of neglect or refusal of a State to make proper provisions for congressional elections, and Avas supported by a majority of the thir- teen States; but it was finally abandoned upon the ground of the great improbability of congressional interference so long as the States performed their duty. When Congress does interfere and. provide regulations, the duty of rendering them effectual, so far as they may require affirmative action, will devolve solely upon the federal government. It will then be federal power which is to be exercised, and its enforcement, if promoted by punitive sauctions, must be through federal officers and agents; for, as said by Mr. Justice Stary in Prigg vs. Pennsylvania. ' The national government, in the absence of all positive provisions to the contrary, is bound, through its own proper department, legislative, judicial, or execu- tive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution.' If State officers and Stat§ agents are employed, they must be taken, as already said, with the conditions upon which the States may permit them to act, and without responsibil- ity to the federaj authorities. The power vested in Congress is to alter the regulations prescribed by the legislatures of the States, or to make new ones, as to thi^ times, jilaees, and manner of liohl'nuj the elections. Tliose whieh relate to the times and ])laces will seldom recjnire any allirm- ative action beyond their designation. And reiiulations as to the inanmr of hohliny them cannot extend beyond the desij;nation of the nuxh' in whieh the will of the voters shall be cxiinsscd and ascertained. The power does not antiioii/.e ('oniiress to detennine who .shall participate in the election, or what siiall i>e the qualilicat ions of voters. These are mat- ters not pertaining to or involved in the manner of holding the election, and their regnlation rests exclu.sively with the States. The only restric- tion upon them with respect to these matters is found in the provision that the electors of representatives in Congress shall have the qualitica- tions required for electors of the most numerous branch of the State leg- islature, and the provision relating to the suffrage of the colored race. And whatever regulations Congress may prescribe as to the manner of holding the election for representatives must be so framed as to leave the election of State officers free, otherwise they cannot l:e maintained. In one of the niunbers of the Federalist, Mr. Hamilton, in defending the adoption of the clause in the Constitution, uses this language : ' Suppose an article had been introduced into the Con.stitutiou empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable trans- position of power, and as a premeditated engine for the destruction of the State governments ? The violation of principle in this case -would have required no comment.' By the act of Congress sustained by the court an interference with State elections is authorized almost as destructive of their control by the States as the direct regulation whieh he thought no man would hesitate to condemn. ■'The views expressed derive further support from the fact that the constitutional provision applies equally to the election of senators, excejjt as to the place of choosing them, as it does to the election of representa- tives. It M ill not be pretended that Congress could authorize the ap- pointment of supervisors to examine the roll of members of State legi.s- latures and pa.ss upon the validity of their titles, or to scrutinize the bal- loting for senators ; or could delegate to special deputy marshals the power to arrest any member resisting and repelling the interference of the su- pervisors. But if Congress can ^authorize such officers to interfere with the judges of election apjjointed under State laws in the discharge of their duties when representatives are voted for, it can authorize such officers to interfere with members of the State legislatures when senators are voted for. The language of the Constitution conferring power upon Congress to alter the regulations of the States, or to make new regulations on the .subject, is as applicable in the one case as in the other. The objection to such legislation in both cases is that State officers are not responsible to the federal government for the manner in which they perform their du- ties, nor subject to its control. Penal sanctions and coercive measures by federal law cannot be enforced against them. Whenever, as in some in- 214 stances is the case, a State officer is required by the Constitution to per- form a duty, the rnanner of which may be prescribed by Congress, as in the election of senators by members of State legislatures, those officers are responsible only to their States for their official conduct. The federal government cannot touch them. Tliere are remedies for their disregard of its regulations, which can be applied without interfering with their oificial character as State officers. Thus if its regulations for the election of senators should not be followed, the election had in disregard of them might be invalidated ; but no one, however extreme in his views, would contend that in such a case the members of the legislature could be sub- jected to criminal prosecution for their action. With respect to the elec- tion of representatives, so long as Congress does not adopt regulations of its own and enforce them through federal officers, but permits the regula- tions of the States to remain, it must depend for a compliance with them upon the fidelity of the State officers and their responsibility to their own government. All the provisions of the law, therefore, authorizing super-' visoi's and marshals to interfere with those officers in the discharge of their duties, and providing for criminal prosecutions against them in the federal courts, are, in my judgment, clearly in conflict with the Constitu- tion. The law was adopted, no doubt, with the object of preventing frauds at elections for members of Congress, but it does not seem to have occurred to its authors that the States are as much interested as the gen- eral government in guarding against frauds at those elections and in main- taining their purity, and, if possible, more so, as their principal officers are elected at the same time. If fraud be successfully perpetrated in any case, they will be the first and the greatest sufferers. Tliey are invested with the sole power to regulate domestic affairs of the highest moment to the prosperity and happiness of their people, affecting the acci(uisition, enjoyment, transfer, and descent of property ; the marriage relation, and the education of children ; and if such momentous and vital concerns liiay be wisely and safely entrusted to them, I do not think that any ap- prehension need be felt if the supervision of all elections in their respec- tive States should also be left to them. " Much has been said in argument of the power of the general govern- ment to enforce its own laws, and in so doing to preserve the peace, though it is not very apparent what pertinency the observations have to the questions involved in the cases before us. No one will deny that in the powers granted to it the general government is supreme, and that, upon all subjects within their scope, it can make its authority respected and obeyed throughout the limits of the Republic ; and that it can repress all disorders and disturbance which interfere with the enforcement of its laws. But I am unable to perceive in this fact, which all sensible men acknowledge, any cause for the exercise of ungranted power. The greater its lawful power, the greater the reason for not usurping more. Unrest, disquiet, and disturbance will always arise among a people, jealous of their rights, from the exercise by the general government of powers which they have reserved to themselves or to the States. 215 " My second proposition i.s that it is not ronipctont for Congress to make the exercise of its punitive power dejtcndent ui)on the legishition of th*^ States. The act, upon which the indictment of the jjctitioner from Ohio is founded, makes the neglect or violatidu of a duty prescribed by a hiw oi' the State in regard to an election at wiiicli a representative in Con- gress is voted for, a criunual otrincc. It docs not say that the neglect or disregard of a duty prcserihcd by any r.ris/iin/ law shall t-oustitule such an oll'ence. it is the neglect or disregard of (Oiij dniij prescribed by (Oiy law of the State, present or future. The act of Congress is not changed in terms ^vitli the changing laws of the State ; but its penalty is to be shifted with the shifting humors of the State legislatures. I cannot think that such punitive legislation is valid which varies, not by direc- tion of the federal legislators, upon new knowledge or larger experience, but 1)y the direction of some external authority which makes the same act lawful in one State and criminal in another, not according to the views of Congress as to its propriety, but to those of another body. The Constitution vests all the legislative power of the federal government in Congress ; and from its nature this power cannot be delegated to others, except as its delegation may be involved by the creation of an inferior local government or department. Congress can endow- territorial govern- ments and municipal corporations with legislative powers, as the posses- sion of such powers for certain purposes of local administration is indis- pensable to their existence. So, also, it can invest the heads of depart- ments and of the army and navy with power to prescribe regulations to enforce discipline, order, and efficiency. Its possession is implied in their creation ; but legi-slative power over subjects which come under the im- mediate control of Congress, such as defining ofteuces against the United States, and prescribing punishment for them cannot be delegated to any other government or authority. Congress cannot, for example, leave to the States the enactment of laws and restrict the United States to their enforcement. There are many citizens of the United States in foi-eign countrres, in Japan, China, India, and Africa. Could Congress enact that a crime against one of those States should be punished as a crime against the United States ? Can Congress abdicate its functions and depute foreign countries to act for it ? If Congress cannot do this with respect to offences against those States, how can it enforce penalties for otienees against any other States, though they be of our own Union ? If Congress could depute its authority in this way ; if it could say that it will punish as an otfence what another power enacts as such, it might do the .same thing with respect to the commands of any other authority, as, for example, of the President or the head of a department. It could enact that wiiat the President proclaims shall be law ; that w hat he declares to Ije olfences shall be puni.shed as such. Surely no one will go so far as this, and yet I am vinable to see the distinction in principle between the existing law and the one I suppose, which seems so extravagant and absurd. " I will not pursue the subject further, but those who deem this ques- tion at all doubtful or difficult, may find something worthy of thought 216 in the opiuioiiS of the Court of Appeals of New York and of the supreme courts of several other States, where this subject is treated with a full- ness and learning, which leaves nothing to be improved and nothing to be added." CORPOKATIOXS. — CASEt? RELATING T(3 THEIR PoWERS AND Liabilities, and their Subjection to the Control of THE State. Cor|i()ratioii.s of all kinds, puhlic and private, foreign and domestic, commercial, benevolent, and religious, have been the frequent subject of consideration liy the Supreme Court, Their powers and lialuHties, their creation, amendment, and dissolution; how far they arc to 1)e regarded as con- tracts within tlie prolnl)ition of the Constitution against State impairment, and how far they arc subject to tlie con- trol of the State, have been treated in numerous cases with exhaustive fullness. Every judge on the bench has given opinions in some of the cases. Judge Field has given opinions in several of them; and, among otiiers, in the following : Paul vs. Virginia (8 Wallace, 168) ; Marsh vs. Fidton County (10 Wallace, 676); Tomhnson vs. Jes- sup (15 Wallace, 4o4); Minot vs. The Philadelphia, Wil- mington and Baltimore Railroad Company (18 Wallace, 206); Board of Commissioners of Tippecanoe County vs. Lucas, Treasurer (93 IT. S., 108); Broughton vs. Pensa- cola (Ibid., 266); and United States vs. New Orleans (98 IT. S., 381). In the case of The Pensacola Telegraph Company vs. The Western Union Telegraph Company he wrote a dissenting opinion (96 U. S., 14), In Paul vs. Virginia the court held that corporations were not citizens within the meaning of the clause of the Constitution which declares that " the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States ;" that the terms " citi- zens " as there used applied only to natural persons, mem- 217 l)ors of the l»o(ly-]»olitie, owing alleginnce to tlio St:\t(\, and not to avtitic'uil luTsons created by the li-gislatiuH! and [losses^sing only the attrihutes wliieh the legii>hitui-L' had prescribed. It was true, the conrt observed, that it bad been held that where contracts or rights of property wei'c to l)e enforced })\ or against a (Hir[)oration, the courts of llic I'nited States will, for ibe pui-posc of maintaining jurisdii'tion, consider tlie cor[>oration as reiircscnting citi- zens of the State unihM- the biws of which it was created, and to that extent would treat a coi-jioi'ation as a citizen within the cbmsc of the ( 'onstitntion extending the jndic- icial power of the United States to controvci'sies between citizens of ditrerent States; bnt the court added tliat in no case iiad a corporation liecn consiik'rcd a citizen witlnn the meaning of the provisit^i, whicli declares that "the citizens of each State shall he entitled to all tlie privileges and immunities of citizens in the several States." AVith respect to that provision Judge Field, speaking for the court, said as follows : '■ It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing -svith citizens of other States, so far as the advantages resulting from citizenship in those States are con- cerned. It relieves them from the disabilities of alienage in otherStates ; it inhil)its discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them : it insures to them in other States the same freedom po.ssessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no pro- vision in the Constitution has tended so strongly to constitute the citi- zens of the United States one people as this.* Indeed, without some pro- vision of the kind removing from the citizens of each State the disabili- ties of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists. " But the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under * Lcmmon vs. The I'eople, 20 New York, 607. 218 their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to gi\e to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be en- joyed at home, unless the assent of other States to their enjoyment therein be given. "Now a grant of corporate existence is a grant of special privileges to the corporators, enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise specially pro- vided) from individual liability. , The corporation beingthe mere creation of local law, can have no legal existence beyond the limits of the sov- ereignty where created. As said by this court in Bank of Augusta vs. Earlc, ' it must dwell in the place of its creation, and cannot migrate to another sovereignty.' The recognition of its existence even by other States, and the enforcement of its contracts made therein, depend purely upon the comity of those States — a comity which is never extended where the existence of the corporation or the exercise of its powers are preju- dicial to their interests or repugnant to their policy. Having no absolute right of recognition in other States, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those States may think jjroper to impose. They nuiy ex- clude the foreign corporation entirely ; they may restrict its business to particular localities, or they nray exact sucli security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion. " If, on the other hand, the provision of the Constitution could be con- strued to secure to citizens of each State in other States the peculiar privileges conferred by their laws, an extra-territorial operation would be given to local legislation utterly destructive of the independence and the harmony of the States. At the present day corporations are multiplied to an almost iudetinite extent. Tiiere is scarcely a business pursuetl re- quiring the exjienditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them. And if, when comjiosed of citizens of one State, their corporate jjowers and franchises could be exercised in other States without restric- tion, it is easy to see that, with the advantages thus possessed, the most important business of those States would soon pass into their hands. The principal business of every State would, in fact, be controlled by cor- porations created by other States. " If the right asserted of the foreign corporation, when composed of citizens of one State, to transact business in other States were even re- stricted to such business as corporations of those States were authorized 210 to transact, it would still follow that those Htatcs would bo miablo to limit tlu' numhor of corporations doing business therein. They could not charter a company for any purpose, however restricted, without at once openins the door to a liood of corporations from other States to cn- gaii-e in the sanu> pursuits. They could not repel an intruding corporation, excl on tlie condition of refusing incori>nration for a similar pur^iosc to their own citizens, and yet it might be of the highest public interest that the number of corporations in tbe Stale should be limited ; that they sliouhl be re(iuired to give publicity to their transactions; to sub- mit their atfairs to proper exaiuinalion ; to be sul)ject to forfeiture of their cori)orate rights in case of mismanagement, and that their officers should be held to a strict accountability for the manner in which the business of the corporation is managed, and lie liable to sumuuiry re- nu>val. " ' It is impossible,' to repeat the language of this court in i:'i,iL- „f An- ffiisfa IS. Ein-lc, 'upon any sound principle, to give such a construction to the article in question,' — a construction which would lead to results like these." Ill Marsh vs. Fnlton County the court hold thtir where honds of a county wore issued without autliorily hy its supervisoivs to a raih-oad company, tliey were iiivahd in the liands of an innocent purchaser; that the Mutliority to contract innst exist hefore any protection as such' purchaser can be cUiinied hy the hoUUa-. And furtlier, tint where the supervisors possessed no authority to make a subscrip- tion or issue bonds to a raih'oad company in the first in- stance, without the previous sanction of the qualified voters of the county, they could not ratify a subscription to the company already made without sucli authority. Said the coitrt, speaking through Judge Field, as h)llows : " A ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the quali- fied voters of the county. The supervisors, in that particular, were the mere agents of the county. They could not, therefore, ratify a subscrip- tion without a vote of the county, becaiase they could not nuike a sub- scription in the first instance without such authorization. It would be absurd to say that they could, without such vote, by simple expressions 220 of approval, or in some other indirect way, give validity to acts, when they were directly in terms prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his principal, could give validity to such act by its indirect recognition.'^ " We do not mean to intimate that liabilities may not be incurred by counties independent of the statute. Undoubtedly they may. The obligation to dojustice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compen- sation. But this is a very difl[erent thing from enforcing an obligation attempted to be created in one way, when the statute declares that it shall only be created in another and different way."' Ill Touilinson vs. Jessnp the court lielrl that, where a general hiw of South Carohna })assedin 1841 provided that the chart c^-r of every corporation snhse(piently granted, and any renewal, amendment, or modificaticni thereof, should he suhject to amendment, alteration, or repeal hy legisla- tive authority, unless the act granting the charter or the renewal, amendment, or modiUcation, in express terms excepted it from the general law, it was competent for the legislature of the State to alter an amendment to a corporation suhsequently created, which exempted its prop- erty from taxation without such exception, and to subject the property to taxation; that the ])ower reserved to the State hy the general law authorized any change in the contract of the corporation, created hy the charter between the corporators and the State, as it originally existed, or as subsequently' modified, or its entire revocation. On this point. Judge Field, speaking for the court, said as follows : " The object of the reservation, and of similar reservations in other charters, is to prevent a grant of corporate rights and privileges in a form which will preclude legislative interference with their exercise if the public interest .should at any time require such interference. It is a provision intended to preserve to the State control over its contract with the corporatora, which without that provision would be irrepealable and protected from any measures aftecting its obligation. Immunity from taxation, constituting in these cases a part of the contract with the gov- ernment, is, by the reservation of power such as is contained in the law * McCraclceu vs. City of San Francisco, 16 Cal., G24. 221 of 1841, sn1)ii-ct to iKMVVokcd (Hiually willi any oilier i>r..\ isiun of (lir oliarter whenover the leyislaturo may (Iccin il cxiicdicut lur llic i)ul)lir iutorfflic work, they have heen vested with authority to borrow money or incur an obligation, they liavo the power to levy a tax to raise revenue to pay the nione}' or discharge the obligation without any special mention that such power is granted, and that in case of a refusal to provide for the payment of the indebtedness contracted, a mandamus should be issued to compel the levying of such tax. On this point the court said, speak- ing through Judge Field : "The position that the power of taxation belongs exelusively to the legislative branch of the government, no one will controvert. Under our system it is lodged nowhere else. But it is a power that may be dele- gated by the legislature to municipal corporations, which are merely the instrumentalities of the State for the better administration of the govern- ment in matters of local concern. When such a corporation is created the power of taxation is vested in it as an essential attribute for all the purposes of its existence, unless its exercise be in express terms prohib- ited. For the accomplishment of those purposes, its authorities, however limited the corporation, must have the power to raise money and control its expenditure. In a city, even of snuill extent, they have to provide for the preservation of peace, good order, and health, and the execution of such measures as conduce to the general good of its citizens ; such as the opening and repairing of streets, the construction of sidewalks, sew- ers, and drains, the introduction of water, and the establishment of a fire and police department. In a city like New Orleans, situated on a navi- gable stream, or on a harbor of a lake or sea, their powers are usually en- larged so as to emijrace the building of wharves and docks or levees for the benelit of commerce, and they may extend also to the construction of roads leading to it, or the contributing of aid towards their construction. The number and variety of works which may be authorized, having a general regard to the weltare of the city or of its people, are mere mat- ters of legislative discretion. All of tliem require for their execution considerable expenditures of money. Their authorization without pro- viding the means for such expenditures would be an idle and futile pro- ceeding. Tlieir authorization, therefore, implies and carries with it the power to adopt the ordinary means employed by such bodies to raise funds for their execution, unless such funds are otherwise pi'ovided. And the ordinary means in such cases is taxation. A municipality with- out the power of taxation would be a body without life, incapable of acl- iug, and serving no usel'ul purpose'. "For the same reason, when authority to borrow money or incur an obligation in order to execute a public work is conferred upon a munici- pal corporation, the power to levy a tax for its payment or the discharge of the obligation accompanies it ; a"nd this, too, without any special men- tiou tliat such power is Liraiitcd. This arisi's iVom tiic lact Ihal such cor- l)orations sel(h)iu possess — so seldom, iiKh'ed, as to be exceptioiuil — any means to disc-barge their pecnniary ol)ligations except by taxation. ' It is, therefore, to l)e interred,' as observed by tliis court in Loan Association vs. Topeka, (20 Wall., (JtiO,) ' that when the legislature of a State authorizes a county or city to contract a debt by bond, it inteiuls to authorize it to levy such taxes as. arc necessary to pay the dclit, unless there is in tlu' act itself, or in some general statute, a limitation u])ou tlu' power ol' tax- ation w hi(-h repels sueli an inference.'" Ill tlu! case of The Pensacola 'LY'leii'raiili Coiiipany vs. 'I'lie WeskTii ITuioii TeleoTajili ('(iiii|iaii_v a Itill w:is tiled to ol)laiii an iujiAiietiou restraiuing the (lei'eii(laiit, tlie West- ern ITnion Co., troin erecting, usino-, or maintaining a tel- egrapli line in the county of Escaiubia, Florida, on the ground that l»y a statute of the State, passed in December, 1866, the complainant, the Fensacola Co., had acquired the exckisive right to erect and use lines of telegraph in that county for the period of twenty years. The court be- low (k'liied the injunction and dismissed the bill, upon the ground that the statute was in conflict with the act of Congress of July 24tli, 1866, entitled '• An act to :ud in the construction of telegraph lines, and to secure to the government the nse of the same for postal, military, and other purposes," tlie first section of whieh provides "■ that any telegraph company now organized, (n- which may hereafter be organized, under the laws of any State in this Union, shall have the right to construct, main- tain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States, which have 1)een or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States: PmrnJcd, That sucli lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on sueli military or post roads. And any of said compaiiit's shall have the right to take and use from sueh puf)lic lands the necessary stone, timber, and other materials for its posts, 15 226 piers, stations, and otlier needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the nnoccnpied public lands subject to pre-emption, through which its said lines of telegraph may be located, as maybe necessary for its stations, not exceeding forty aci-es for each station, but such stations shall not be within lifteen miles of each other." * The statute of Florida incorporated the Pensacola Tel- egraph Company, which had been organized in December of the previous year, and in terms declared that it should enjoy " the sole and exclusive privilege and right of es- tablishing and maintaining lines of electric telegraph in the counties of Escambia and Santa Rosa, either from dif- ferent points within said counties, or connecting with lines coming into said counties, or either of them, from other points in this or any other State," Soon after its organization and in 1866 the company erected a line of telegraph from the city of Pensacola, through the county of Escambia, to the southern boundary of Alabama, a distance of forty-seven miles, which has since been open and in continuous operation. It was lo- cated, hy permission of the Alal)ama and Florida Rail- road C\unpany, along its line of railway. After tlie charter was obtained, the line was substantially rebuilt, and two other lines in the county were erected by the company. In February, 1873, the Legislature of Florida passed an act granting to the Pensacola and Louisville Railroad Company, which had become the assignee of the Alabama and Florida Railroad Company, the right to construct and operate telegraph lines upon its right-of-way from the bay of Pensacola to the junction of its road with the Mobile and Montgomery railroad, and to connect the same with the lines of other companies. By an amendatory act passed in the following year (February, 1874), the rail- road company was authorized to construct and operate the * 14 statutes at Large, 221. lines, ii:)l onlv nloii.u' its road :i< lli;'!! li.catc.ljmt as it might 1)1' thoreal'tcr located, and aloiiii- coinu'etiiii;- roads in tlie eountv, to (lie boundary of AlaKania, and to con- nect and consolidate tlieni with other tele;;-i'a[(li conqianies, and to sell and assig-n the property a[)pert;iining' to them, and the rights, privileges, and franchises conferred by the act; and it empowered the assignee, in such case, to con- struct and operate the lines and to enjoy these rights, privileges, and franchises. Under this amendatory act, and soon after its [)assage, the railroad company assigned the rights, privileges, and franchises thus ac(piired to the Western Union Telegraph Company, a ccn-poration created under the hiws of the State of New York, which at once proceeded to erect a line from the city of Pensacola to the southern boundary of Alabama, along tlie identical railway on which tlie complainant's Hue was erected in 1860, and ever afterwards located, with the avowed intention of using it to transmit for compensation messages for the public in the county and State. By the erection and operation of this line, the complainant alleged that its property- would become val- ueless, and that it would lose the benefits of the franchises conferred by its charter. The Supreme Court affirmed the decision of the circuit court, dismissing the bill, holding that the act of Congress of July 24, 1866, so far as it declared that the erection of telegraph lines should, as against State interference, be free to all who accepted its terms and conditions, and that a telegraph company of one State should not, after accept- ing them, be excluded by another State from prosecuting its business witliin her jurisdiction, was a legitimate regu- lation of commercial intercourse among the States, and appropriate legislation to execute the powers of Congress over the postal service. And further, that the right-of-way which the act granted was not limited to such military and post roads as were upon the public domain. The Chief Justice, who delivered the opinion of the court, said as follows : 228 '■' It [tlie act of Congvcs-s of 1866] substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is con- cerned, be free to all who will submit to the conditions imjiosed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded by an- other from prosecuting their business within its jurisdiction, if they ac- cept the terms proposed by the national government for this national privilege. To this extent, certainly, the statute is a legitimate regulation of commercial intercourse among the States, and is appropriate legisla- tion to carry into execution the powers of Congress over the postal ser- vice. It gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary struc- tures for its business, but it does provide that, whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are Avilling to avail themselves of its privileges. " It is insisted, however, that the statute extends only to such military and post roads as are upon the public domain ; but this, we, think, is not so. Tlie language is, ' Through and over any portion of the public do- main of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States.' There is nothing to indicate an inten- tion of limiting the effect of the words employed, and they are, there- fore, to be given their natural and ordinary signification. Read in this way, the grant evidently extends to the public domain, the military and po.st roads, and the navigable waters of the United States. These are all within the dominion of the national government to the extent of the na- tional powers, and are, therefore, subject to legitimate congressional regu- lation. No (juestiou arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public projierty alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No com- pulsory proceedings are authorized. State sovereignty urider the Consti- tution is not interfered with. Only national privileges are granted." From this decision Judges Field and Hunt dissented, Judge Field delivering a dissenting opinion. In that opinion he said as follows : " There can be no serious question that the State of Florida possessed the absolute right to confer upon a corporation created- by it the exclu- sive privilege for a limited period to construct and operate a telegraph line within its borders. Its constitution, in existence at the time, em- 229 powered the legislature to grant exclusive privileges and franchises to private coriiorations for a period not exceeding twenty years. The ex- clusivenoss of a jirivilcge often constitutes tlie only inducement for nn- dirtakings holding out little ])rospect of inunediate returns. Tlie uncer- tainty ol' tlic results of an ciiterjjrise will often deter capitalists, naturally cautious and distrustful, from making an investment without some as- suraiu-e that in easi^ tlu' Imsiness Itecome prolilalile they shall not en- counter the dangei: of its destruction or diniinut i(Ui liy conipetition. It has. lluTelore, l)een a common practice in all the States to encourage en- terprises having for their ohject the promoticm of the puhlic good, such as the construction of bridges, turnpikes, railroads, and canals, by grant- ing for limited periods exclusive privileges in connection with them. Sucrh grants, so far from being deemed encroachments upon an}' rights or powers of the United States, are held to constitute contracts, and to be within the protecting clause of the Constitution prohibiting any impair- ing of their obligation. '"The grant to the complainant was invaded by the subsequent grant to the Pensacola and Louisville Railroad Company. If the first grant was valid, the second was void, according to all the decisions of this court upon the power of a State to impair its grant since the Dartmouth Col- lege case. The court below did not hold otherwise, and I do not under- .stand that a different view is taken here; but it decided, and this court sustains the decision, that the statute making the first grant was void by reason of its conflict with the act of Congress of July 24th, 1866. " With all deference to my associates, I cannot see that the act of Con- gress has anything to do with the case before us. In my judgment, it has reference only to telegraph lines over and along military and post roads on the public domain of the United States. The title of the act expresses its purpose, namely, ' to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military, and other purposes.' The aid conferred was the grant of a right of way over the public domain ; the act does not propose to give aid in any other way. Its language is that any telegraph company organized under the laws of a State 'shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public donuiiu, over and along any of the military and post roads which have been, or may here- after be, declared such by. act of Congress, and over and across the navi- gable streams or waters of the United States.' The portion of the public domain which may be thus used is designated by reference to the mili- tary and post roads npcju it. Were there any doubt that this is the cor- rect construction of the act, the provision which follows in the same sec- tion would seem to remove it, namely, that any of the said companies shall ' have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied 230 2mbUe lands, subject to pre-emption, through which its said lines of tele- graph may be located, as may be necessary for its stations, not exceeding forty acres for each station, but such sections shall not be within fifteen miles of each other.' In the face of this language, the italics of which are mine, there ought not to be a difference of opinion as to the obj ect of the act, or as to its construction. The conclusion reached by the major- ity of the court not only overlooks this language, but implies that Con- gress intended to give aid to the telegraph companies of the country — those existing or thereafter to be created — not merely by allowing them to construct their lines over and along post roads upon the public lands, but also over and along such roads within the States which are not on the public lands, where heretofore it has not l>een supposed that it could rightfully exercise any power. " The only military roads belonging to the United States within the States are in the military reservations ; and to them the act obviously does not apply. And there are no post roads belonging to the United States within the States. The roads upon which the mails are carried by parties, under contract with the government, belong either to the States or to individuals or to corporations, and are declared post roads only to protect the carriei-s ft'om being interfered with, and the mails fi-oni being delayed in their transportation, and the postal service from frauds. The government has no other control over them. It has no proprietary inter- est in them or along them to bestow ujion any one. It cannot use them without paying the tolls chargeable to individuals for similar uses. It cannot prevent the State from changing or discontinuing them at its pleasure; and it can acquire no ownersliip or property interest in them, except in the way in which it may acquire any other property in the States, namely, by purchase or by appropriation upon making just com- pensation,* " The i^ublic streets in some of our cities are post roads under the dec- laration of Congress;]- and it would be a strange thing if telegraph lines could be erected by a foreign corporation along such streets without the consent of the municipal and State authorities, and, of course, without power on their part to regulate its charges or control its management. Yet the doctrine asserted by the majority of the court goes to this length : that if the owners of the property along the streets consent to the erec- tion of such lines by a foreign corporation, the municipality and the State are powerless to prevent it, although the exclusive right to erect them maj' have been granted liy the State to a corporation of its own creation. " If by making a contract Avith a party to carry the mails over a par- ticular road in a State, which thus becomes by act of Congress for that purpose a post road. Congress acquires such rights with respect to the road that it can authorize corporations of other States to construct along * Dickey vs. Turnpike Road Co., 7 Dana (Ky.), 113. t Rev. Stats., sec. 3,964. 231 and over it a line of telegraph, why may it not authorize them to con- strnct alon.L>- the road a railway, or a turnpike, or a caual, or any other work which may be used for the promotion of eomnieree? If the au- thority exists in tlie one case, I cannot see why it does not equally exist ill the other. And if Congress can authorize the corporations of one State to construct telegraph lines and railways in anotiier State, it must have the right to authorize them to condemn i)rivate pro])erty for that purpose. Tlie act under consideration does not, it is true, provide for such condemnation, but if the right exist to authorize the construction of the lines, it cannot be defeated from the inability of the corporations to acquire the necessary property by purchase. The power to grant im- l)lies a power to confer all the authority necessary to make the grant ef- fectual. It was for a long time a debated question whether the United States, in order to obtain property required for their own purposes, could exercise the right of eminent domain within a State. It has been decided, only within the past two years, that the government, if such property cannot be obtained liy i)urchase, may ajipropriate it upon making just compensation to the owner,* but never has it been suggested that the United States could enable a corporation of one State to condemn prop- erty in another State, in order that it might transact its private business there. " We are not called upon to say that Congress may not construct a rail- road as a post road, or erect for postal purposes a telegraph line. It may be that the power to establish post roads is not limited to designating the roads which shall be used as postal routes ; a limitation which has been asserted by eminent jurists and statesmen. f If it be admitted that the power embraces also the construction of such roads, it does not follow that Congress can authorize the corporation of one State to construct and operate a railroad or telegraph line in another State for the transaction of private business, or even to exist there, without the permission of the lat- ter State. By reason of its previous grant to the complainant Florida was incompetent to give such permission to the assignor of the defendant, or to any other company, to construct a telegraph line in the county of Es- cambia. The act of the State of February 3d, 1874, in the fac." of this grant, can only be held to authorize the construction of telegraph lines by different companies in other counties. If, therefore, the defendant has any rights in that county they are derived solely from the act of Congress. "A corporation can have no legal existence beyond the limits of the sovereignty which created it. In The Bank of Augusta vs. Earle, it was said by this court that ' it must dwell in the place of its creation and ■■ Kohl vs. U. S., 1 Otto, 8G7. t Elliott's Debates, edition of 1836, 433, 487 ; Views of President Mon- roe accompanying his veto message of May 4th, 18:2-2; Views of Judge ^McLean in his dissenting opinion in the Wheeling Bridge Case, 18 How., p. 441-2. cAuuot migrate to another sovereignty.'* And in Panl vs. Virginia we added that 'the recognition of its existence even by other States, and the enforcement of its contracts made therein, depend purely upon the com- ity of those States, a comity which is never extended where the exist- ence of the corporation or the exercise of its powers is prejudicial to their interests or repugnant to their policy. Having no absolute right of rec- ognition in other States, but depending for such recognition and the en- forcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those States may think proper to impose. They may exclude the for- eign corporation entirely ; they may restrict its business to particular localities, or they may exact such security for the performance of its con- tracts with their citizens as in their judgment will best promote the pub- lic interest. The whole matter rests in their discretion. 'f If, therefore, foreign corporations can exist in the State of Florida, and do business there by the authority of Congi-ess, it must be because Congress can cre- ate such corporations for local business, — a doctrine to which I cannot assent, and which to my mind is pregnant with evil consequences. " In all that has been said of the importance of the telegraph as a means of intercourse, and of its constant use in commercial transactions, I fully concur. Similar language maybe used with regard to railways; indeed, of the two the railway is much the more important instrument of commerce. But it is difficult to see how from this fact can be deduced the right of Congress to authorize the corporations of one State to enter within the borders of another State and construct railways and telegraph lines in its difterent counties for the transaction of local business. The grant to the complainant in no way interferes with the power of Congress, if it possess such power, to construct telegraph lines or railways for pos- tal service or for military purposes, or with its power to regulate com- merce between the States. The imputation that Florida designed by the grant to obstruct the powers of Congress in these respects, is not war- ranted by anything in her statute. A like imputation, and Avith equal justice, might be made against ever}' State in the Union which has au- thorized the construction of a railway or telegraph line in any of its counties, with a grant of an exclusive right to operate the road or line for a limited period. It is true the United States, equally with their citizens, may be obliged in such cases to use the road or line, but it has not here- tofore been supposed that this fact impaired the right of the State to make the grant. AVhen the general government desires to transact business within a State it necessarily makes use of the highways and modes of transit provided under the laws of the State, in the absence of those of its own creation. " The position advanced, that if a corporation be in any way engaged in commerce it can enter and do business in another State without the - 13 Peters, 588. t 8 Walhice, 181. 233 hitler's coiisciif, is iKivcl :m(l startliu.-i'. T.ct this doctrine be once cs- lal.lislivd, aiHltlic -iiratcr part of the trade and coiiinierce of every State will soon l)e carried on by corporations created without it. The business of the country is to 87 t(i year, or oiilv :it lln' matiii'ily of llic IxmkIs at tlic omI of the thii'ty years, and was eairied lielore llie Court of Claims for adjiidiration, and eaiiie, on aiii-eal from its division. Iieiore the Supreme C\>urt of tlie I'lnti'd States at tlie Cetol)er tei'iii of 1S7'). It was thert' held hy the eourt unaniuHaisly that the interest was not payahle hy the company until the maturity of the lionds. Judge Davis gave the o[iinion of the t-ourt. — (See Cnited States vs. The Union Pacilic Kaih'oad, 91 U. S., 72.) The same conclusion was reached h}' the Judiciary Com- mittee of hoth Houses of Congress. The Committee on the Judiciary of the Senate consisted at the time of Sen- ators Trumhull. Stewai't, Edmunds, Carpenter, Conkling, Thurman, and Kice. Xotwithstanding tliere was no complaint against the companies that they had not complied in all respects with the acts of Congress, or that there was any impairment of the value of their property, on the 7th of Ma}", 1878, Congress passed tlie funding act, commoidy known as the " Thurman act." It is entitled "An act to alter and amend the railroad acts of 18(52 and 18(U," giving their titles. This act requires that tlie whole amount of compensa- tion w'liich ma}' from time to time be due to tlie compa- nies for services rendered for the government, shall be retained by the United States, one half to be applied to the Hquidation of the interest paid by the United States on its bonds, and the other half to be turned into a sink- ing fund, which the act establishes, in the treasury of the United States. The act requires the Secretary of the Treasury to invest moneys of that fund in bonds of the United States. It also provides that on the 1st of Febru- ary of each year, one half of the compensation for ser- vices mentioned shall be credited to that limd, and re- quires the Central Pacific Company to pay into that fund on that day in each year 11,200,000, or so much thereof as may be necessary to make the five per centum of the net earnings payable to the United States under the act of 238 18G2, and llie wliole snm earned as compensation for ser- vices, and the snm thus paid to amount in the aii'greo'ate to twenty-five per centum of the whole net earnings of tlie company. The act requires tlie Union Pacific Company to pay $850,000 into the sinking fund on the 1st day of Feb- ruary of each year, or so mucli thereof as, with the five per centum and compensation for services, and the amount paid, shall equal twenty-five per cent, of its net earnings. And the act declares that no dividend shall be voted or paid to any stockholder or stockholders in either of the compa- nies, when the company is in default in respect of the pay- ment of the sums required into the sinking fund, or in respect of the five per centum of the net eai-nings, or in respect of any interest uj)on any debt the lien of which is paramount to that of the United States; and any officer or person who shall vote, declare, or pay any stockholder of said companies any dividend contrary to the provisions of the act, and any stockholder who shall receive any, shall be hable to the United States for the amount, and shall be deemed guilty of a misdemeanor, and, on convic- tion, shall be punished by a fine not exceeding ^10,000, and by imprisonment not exceeding one year. It is the validity of this act, thus changing the conditions and obligations of the companies under the acts of 1862 and 1864, which was considered in the cases mentioned. In both cases judgments wei-e given in the com-fs below as a matter of form against the companies, and by them appeals were taken to the Supreme Court. Tiie questions involved were there elaborately and ably argued by dis- tinguished counsel. Messrs. Samuel Shellabarger and Jeremiah M. Wilson appearing for the Union Pacific; Mr. B. H. Hill, of the United States Senate, and Mr. S. AV. Sanderson, of California, appearing for the Central Pacific ; the Attorney-General, and Mr. George H. Williams, and Mr. Edwin J3. Smith, the Assistant Attorney-General, ap- pearing for the United States. The Supreme Court affirmed the judgment in both cases, holding that the act of May 289 7tli, 1S7S, was coiisCitiilional, ami tlial tlic cslaMislniKMit of tlio sinkinu- i'lind was a rcasoiiahlo ro<;'iilatioii for the ad- luinistralioii of tlu' affairs of \\iv coinitaiiii's and was wai"- ranted uink'rtlu' clauses ivserviiii;' to Couutcss the- riLi'lit to alt(M- and aninid the acts of 1S(;2 and 1S(;4. Jiid.ii-i's Slron--, Bradley, and Field dissenl.Ml from tlio judu-nient, and each of tliem read a dissenting- opinion, ,]\u\'j:c Field eontinin-- himself principally to the case of the Central Pacific. His o[)inioii is as follows : "The ilocision [rendered] will, in my opinion, tend to ereute insecurity in the title to corporate property in the country. It, in eti'ect, determines that the general government, in its dealings with the Pacific Kailroad Com- panies, is under no legal obligation to fulfill its contracts, and that whether it shall do so is a question of policy and not of duty. It also seems to me to recognize the right of the government to appropriate by legislative de- cree the earnings of those companies without judicial inquiry and deter- mination as to its claim to such earnings, thus sanctioning the exercise of judicial functions in its own cases. And in respect to the Central Pacific Company it asserts a supremacy of the federal over the State government in the control of the corporation which, in my judgment, is subversive of the rights of the State. I, therefore, am constrained to add some sugges- tions to those presented by my associates, Justices Strong and Bradley. In what I have to say I shall confine myself chiefly to the case of the Central Pacific Company. That company is a State corporation, and is the successor of a corporation of the same name, created before the railroad acts of Congress were passed, and of four other corporations organized under the laws of the State. No sovereign attributes possessed by the general government were exercised in calling into existence tlie original company, or any of the companies with which it is now consolidated. They all derived their powers and capacitiC'^ from the State, and held them at its will. \ " The relation of the general government to the Pacific companies is two-fold: that of sovereign in its own territory, and that of c(mtractor. As sovereign, its power extends to the enforcement of such acts and reg- ulations by the companies as will insure, in the management of their roads, and conduct of their officers in its territory, the safety, convenience, and comfort of the public. It can exercise such control in its territory over all common carriers of passengers and property. As a contractor, it is bound by its engagements equally with a private individual ; it cannot be relieved from them by any assertion of its sovereign authority. " Its relation to the original Central Pacific Company, and to the present company as its successor, in the construction and equipment of its road, and its use for public purposes, was and is that of a contractor, and the 240 riglits and obligations of both are to be measured, as in the case of sim- ilar relations between other parties, b^" the terms and conditions of the contract. " By the first section of the original railroad act of Congress, passed in July, 1862, certain persons therein designated were created a corporation by the name of the Union Pacific Railroad Company, and authorized to construct and operate a continuous railroad and telegraph line from a designated point on the 100th meridian of longitude west from Green- Avich to the eastern boundary of Nevada Territory, and were invested with the powers, privileges, and immunities necessary for that purpose, and with such as are usually conferred upon cori^orations. " By subsequent provisions of the act and the amendatory act of 1864, three grants were made to the company thits created : a grant of a right- of-way over the public lands of the United States for the road and tele- graph line ; a grant of ten alternate sections of land on each side of the road, to aid in its construction and that of the telegraph line; and a grant of a certain number of subsidy bonds of the United States, each in the sum of one thousand dollars, payable in thirty years, with semi-annual interest — patents for the lands and the bonds to be issued as each twenty consecutive miles of the road and telegrai^h should be completed. These grants were made upon certain conditions as to the completion of the road and telegraph line, their construction and use by the government, and their pledge as security for the ultimate payment of the bonds. They were the considerations offered by the government to the company for the work which it undertook. " By the act which thus incorporated the Union Pacific Company, and made the grants mentioned, the United States proposed to the Central Pacific that it should construct in like manner a railroad and a telegr.iph line through the State of California from a point near the Pacific Coast to its eastern boundary, upon the same terms and conditions, and after com- pleting them across the State, to continue their construction through the territories of the United States until they should meet and connect with the road and telegraph line of the Union Pacific. " They, in eftect, said to the company, that if it would construct a rail- road and a telegraph line from the Pacific Ocean ea.stward to a connection with the Union Pacific— the road to be in all respects one of first class — and keep them in repair, so that they could be used at all times by anj^ department of the government for the transmission of despatches and the transportation of mails, troops, munitions of war, supplies, and public stores, at reasonable rates of compensation, not exceeeding such as were charged private persons for similar services, and allow the government at all times the preference in the use of the road and telegraph, — they would grant the company a right-of-way over the public lands for the construc- tion of the road and telegraph line, and grant to it ten alternate sections of land on each side of the road, and give it their bonds, each for the sum of $1,000, payable thirty years after date, with semi-annual interest, such 241 bonds to bo issued at tbe rate ofsixteen, thirty-two, or lbrty-ei<^bt the mih^, accordiiif!; to the character of the country' over wliich the road shoiihl be constructed ; and would issue patents for the hinds, and the subsidy bonds as each twenty consecutive miles of the road and telej^raph should be com- pleted in the manner prescribed ; it being agreed that the company should jiay the bonds as they should mature, and that for the security of their payment they should constitute a second mortgage upon the whole line of the road and telegraph, and that one-half of the compensation earned for services to the government, and, after the completion of the road, five per cent, of its net earnings should be retained and applied to the pay- ment of the bonds; and also, that the company should complete the road by the first of July, 187G, and keep it in repair and use thereafter, or upon failure to do so, that the government might take possession of the road and complete it, or keep it in repair and use as the case might be. And they farther, in etfect, said that if these terms and conditions were satisfactory, the company should file its written acceptance thereof with the Secretary of the Interior, within six mouths thereafter ; and that thereupon there should be a contract between them. " This proposition of the government the Central Pacific accepted, and filed its acceptance as required, and thereupon the provisions of the act became a contract between it and the United States, as complete and per- fect as could be made by the most formal instrument. The United States thus came under obligation to the company to make the grants and issue the bonds stipulated, upon the construction of the road and telegraph line in the manner prescribed. The corporate capacity of the company in no respect aftected the nature of the contract, or made it iu anj' par- ticular diftereut from what it would have been had a natural person been one of the parties. The company was not a creature of the United States, and Congress could neither add to nor subtract from its corporate powers. The exercise of the right of eminent domain allowed in the Territories was not the exercise of a corporate power. That right belongs to the sovereign authority, and whoever exercises it does so as the agent of that sovereignty. Nor was its character as a State institution changed by the fact that it was permitted by Congress to extend its road through the territory of the United States. This permission was no more than the license which is usually extended by positive agreement, or by comity in the absence of such agreement, by one State to the corporations of another State, to do business and own property in its jurisdiction. Such license is not the source of the corporate powers exercised. Insurance companies, express companies, and, indeed, companies organized for almost every kind of business, are, by comity, permitted throughout the United States, and generall}' throughout the civilized world, to do business, make con- tracts, and exercise their corporate powers in a jurisdiction where, iu a strict legal sense, they have no corporate existence. The Pacific Mail Steamship Company, for example, to take an illustration mentioned bj' counsel, is a corporation created under the laws of the State of Xew York, IB 242 and, like the Central Pacific, has been subsidized by the United States. Its ships visit Central America, California, Japan, and China, and in all these places it leases or owns wharves and makes and enforces contracts necessary to the transaction cf its business, yet no one has ever pretended or suggested that it derived any of its corporate powers from the United States, or from the authorities of any of the places named. By consent of those authorities, expressed in terms, or implied in what is understood as their comity, it exercises powers derived solely from the State of New York. "When, therefore. Congress assented to the extension into the territory of the United States of the road which the Central Pacific was authorized by its charter to construct in California, it was deemed important for the company to obtain also the consent and authority of the State to act with- out its limits and assume respon.sibilities not originally contemplated. Accordingly, in 1864. the legislature of the State at its second session after the adoi)tion of the original railroad act of Congress, in order to en- able the company to comply with its provisions and conditions, author- ized the company to construct, maintain, and operate the road in the ter- ritory lying east of the State, and invested it with rights, privileges, and powers granted by the act of Congress, with the reservation, however, that the company should be subject to all the Inirs of the State concerning railroad and telegraph lines, except that messages and property of the United States, of the State, and of the company should have priority of transmission and transportation. The extent of the power which was thus reserved we shall hereafter consider. It is sufficient at present to observe that it was as ample and complete as it is possible for one sov- ereignty to exert over institutions of its own creation, and that its exer- cise is incompatible with the control asserted by the law of Congress of 1878, which has given rise to the present suit. " The Central Pacific Company having accepted, as already stated, the conditions proflered by Congress, proceeded at once to the execution of its contract. In the face of great obstacles, doubts, and uncertainties its di- rectors commenced and prosecuted the work, and within a period several years less than that prescribed, its telegraph line and road were completed, the latter with all the appurtenances of a first-class road, and were ac- cepted by the government. Patents for the land granted, and the sub- sidy bonds mentioned, were accordingly issued to the company. Since then the road and telegraph line have been kept in repair and use and the government has enjoyed all the privileges in the transmission of des- patches over the telegraph, and in the transportation of mails, troops, munitions of w ar, supplies, and public stores over the road, which were stipulated. There has been no failure on the part of the company to comply with its engagements, nor is any complaint of delinquency or ne- glect in its action made by the government. The road is more valuable now than on the day of its completion ; it has been improved in its rails, bridges, cars, depots, turn-outs, machine-shops, and all other appurte- 24:] nances. Its earnin;L>;s havt' been constantly incrca.siiiji;, and it constitutes to-day a far bi-tter security to the United States for the nitiinate payment of the subsidy bonds than at anj' period since its comph-tion, and to the government it has caused, with the connecting road of the Union Pacilh-, an immense saving of expense. The records of the ditTerent departments show an annual saving, as compared with previous expenditures, in the item of transportation alone of the mails, troops, and public stores, of five millions, aggregating at this day over fifty millions of dollars. " Whilst the company was thus complying in all respects with its en- gagements, the act of May 7, 1878, was passed, altering in essential par- ticulars the contract of the company and greatly increasing its obligations. By the contract only one-half of the compensation for transportation for the government is to be retained and applied towards the payment of the bonds. Bj' the act of 1878 the whole of such compensation is to be re- tained and thus applied. By the contract five per cent, onh' of the net earnings of the road are to be paid to the United States to be applied upon the subsidy bonds. By the act of 1878 twenty-five per cent, of the net earnings are to be thus paid and applied. By the contract the only secu- ritj^ Avhich the governmenti had for its subsidy bonds was a second mort- gage on the road audits appurtenances and telegraph line ; and the com- pany was allowed to give a first mortgage as security for its own bonds, issued for an equal amount^ Bj^ the act of 1878 additional security is re- quired for the ultimate payment of its own bonds, and the subsidy bonds of the United States, by the creation of what is termed :i sinking fund, that is, by compelling the company to deposit twelve hundred thousand dollars a year in the treasury of the United States, to be held for such payment, or so much thereof as may be necessary to make the five per cent, net earnings, the whole sum earned as compensation tor services, and sufficient in addition to make the whole reach twenty-live per cent, of the net earnings. '■ It is not material, in the vie^v I take of the subject, whether the de- posit of this large sum in the treasury of the creditor be termed a pay- ment, or something else. It is the exaction from the company of money for which the original contract did not stipulate which constitutes the objectionable feature of the act of 1878. The act thus makes a great change in the liabilities of the company. Its purpose, however disguised, is to coerce the payment of money years in advance of the time prescribed by the contract. That such legislation is beyond the power of Congress I cannot entertain a doubt. The clauses of the original acts reserving a right to Congress to alter or amend them do not, in my judgment, justify the legislation. The power reserved under these clauses is declared to be for a specific purpose. The language in the act of 1862 is as follows : 'And the better to accomi^lish the object of this act, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure the government at all times (but particularly in time of war") the use and benefits of the same 244 for postal, military, and other purposes, Congress may at any time — hav- ing due regard lor the rights of said companies named herein — add to, alter, amend, or repeal this act.' — (Sec. 18.) The language of the amend- atory act of 1864 is more general : ' That Congress may at any time alter, amend, or repeal this act.' The two acts are to be read together ; they deal with the same subject ; and are to be treated as if passed at the same time.— (IVescott vs. Railroad Co., 16 AVall., 603.) The limitations, there- fore, imposed upon the exercise of the power of alteration and amendment in the act of 1862 must beheld to apply to the power reserved in the act of 1864. They are not repealed, either expressly or impliedly, by any- thing in the latter act. If this be so, the legislation of 1878 can find no support in the clauses. The conditions upon which the reserved power could be exercised under them did not then exist. The road and tele- graph had years before been constructed, and always kept in working order ; and the government has at all times been secured in their use and benefits for postal, military, and other purposes. " But if the reserved power of alteration and amendment be consid- ered as freed from the limitations designated, it cannot be exerted to aflfect the conti'act so far as it has been executed, or the rights vested under it. When the road was completed in the manner prescribed and accepted, the company became entitled as of right to the land and subsidy bonds stipulated. The title to the land was perfection the issue of the patents ; the title to the bonds vested on their delivery. Any alteration of the acts under the reservation clauses, or their repeal, could not revoke tlie title to the land or recall the bonds or change the right of the company to either. So far as these are concerned the contract was, long before the act of 1878, an executed and closed transaction, and they were as much beyond the reach of the government as any other property vested in pri- vate proprietorship. The right to hold the subsidy bonds for the period at which they are to run without paying or advancing money on them before their maturity, except as originally provided, or furnishing other security than that originally stipulated, was, on their delivery, as perfect as the right to hold the title to the land patented unencumbered by fu- ture liens of the government. Any alteration or amendment could only operate for the future and affect subsequent acts of the company ; it could have no operation upon that which had already been done and vested. " There have been much discussion and great difference of opinion on many points as to the meaning and effect of a similar reservation in statutes of the States, but on the point that it does not authorize any interference with vested rights all the authorities concur. Such was the language of Chief Justice Shaw in the case cited from the Supreme Court of Massachusetts; and such is the language of Mr. Justice Clifford in the cases cited from this court. And such must be the case or there would be no safety in dealing with the government where such a clause is inserted in its legislation. It could undo at pleasure everything done under its authority, and despoil of their property those who had trusted 245 to its Hiitli. — (Esspx Co. vs. The Comiuonwealtli, l.'J (jlray, 25:{ ; Miller vs. The State, 15 Wall., 4!)8 ; Kolyoke Co. vs. Lyman, Ibid., 52:> ; see also Shields vs. Ohio, 95 U. S., 324, and Sage vs. Dillard, 15 B. Monroe, 35.) " The ol)j(ct 1)1' a reservation of this kind in acts of incorporation is to insure to the governnient control over corporate franchises, rights, and privileges which, in its sovereign or legislative capacity, it may call into existence, not to interfere with contracts which the corporation created by it may make. Such is the purport of our language in Tomlinson vs. .Jessup, where we state the object of the reservation to be ' to prevent a grant of corporate rights and privileges in a form which will preclude legislative interference with their exercise, if the public interest should at any time require such interference,' and that ' the reservation atfects the entire relation between the State and corporation, and places under legis- lative control all rights, privileges, and immunities derived hy Us charter directly from the State.'' — (15 Wall., 454.) The same thing we repeated, with greater distinctness, in the case of The Railroad Company vs. Maine, where we said that by the reservation the State retained the power to alter the act incorporating the company, in all particulars constituting the ffranf to it of corporate rights, privileges, and immunities ; and that 'the existence of the corporation, and its franchises and immunities, derived directly from the State, were thus kept under its control.' But, we added, that ' rights and interests acquired by the company, not constituting apart of the contract of incorporation, stand upon a diiferent footing.' — (96 U. S., 499.) " Now, there was no grant by the United States to the Central Pacitic Company, of corporate rights, privileges, and immunities. No attribute of sovereignty was exercised by them in its creation. It took its life, and all its attributes and capacities, from the State. Whatever powers, rights, and privileges it acquired from the United States it took under its con- tract with them and not otherwise. The relation between the parties be- ing that of contractors, the rights and obligations of both, as already stated, are to be measured by the terms and conditions of the contract. And when the government of the United States entered into that con- tract, it laid aside its sovereignty and put itself on terms of equality with its contractor. It was then but a civil corporation, as incapable as the Central Pacific of releasing itself from its obligations, or of finally deter- mining tiieir extent and character. I; could not, as justly observed by one of the counsel who argued this case, ' release itself and hold the other party to the contract. It could not change its obligations and hold its rights unchanged. It cannot bind itself as a civil corporation, and loose itself by its sovereign legislative power.' This principle is aptly ex- pressed by the great conservative statesman, Alexander Hamilton, in his report to Congress on the public credit, in 1795 : ' When a government,' he observes, ' enters into a contract with an individual, it deposes, as to the matter of the contract, its constitutional authority, and exchanges the character of legislator for that of a moral agent, with the same rights 246 and obligations as an individual. Its promises may be justly considered out of its power to legislate, unless in aid of them. It is, in theory, im- possible to reconcile the two ideas of a promise ichich obliges with a power to make a law which can vary the effect of i<.'— (Hamilton's Works, vol. 3, p. 518, 519.) " When, therefore, the government of the United States entered into the contract Avith the Central Pacific, it could no more than a private cor- poration or a private individual finally construe and determine the extent of the company's rights and liabilities. If it had cause of complaint against the company, it could not undertake itself, by legislative decree, to redress the grievance, but was compelled to seek redress as all other civil corporations are compelled, through the judicial tribunals. If the con?i)any was wasting its property, of which no allegation is made, or impairing the security of the government, the remedy by .suit was am- ple. To declare that one of two contracting parties is entitled, under the contract between them, to the iiaynient of a greater sum than is ad- mitted to be payable, or to other or greater security than that given, is not a legislative function. It is a judicial action; it is the exercise of judicial power — and all such power, with respect to any transaction aris- ing under the laws of the United States, is vested by the Constitution in the courts of the country. " In the case of The Commonwealth vs. The Proprietors of New Bedford Bridge, a corporation of Massachusetts, the supreme court of that State, speaking with reference to a contract between the parties, uses this lan- guage : ' Each has equal rights and privileges under it, and neither can interpret its terms authoritatively so as to control and bind the rights of the other. The Commonwealth has no more authority to construe the charter than the corporation. By becoming a party to a contract with its citizens, the government divests itself of its sovereignty in respect to the terms and conditions of the contract and its construction and interpreta- tion, and stands in the same position as a private individual. If it were otherwise, the rights of parties contracting with the government would be held at the caprice of the sovereign, and exposed to all the risks aris- ing from the corrupt or ill-judged use of misguided power. The inter- pretation and construction of contracts when drawn in question belong exclusively to the judicial department of the government. The legisla- ture has no more power to construe their own contracts with their citi- zens than those which individuals make with each other. They can do neither without exercising judicial powers which would be contrary to the elementary principles of our government, as set fortli in the Declara- tion of Rights.'— (2 Gray, 350.) " In that case the charter of the corporation authorized the building of a toll-bridge across a navigable river, with two suitable draws at least thirty feet wide. A subsequent act required draws to be made of a greater width ; but the court held that the question whether the draws already made were suitable, and constructed so as not iinreasonable or unnec- 247 essarily to obstruct or iinpodc public nuvigatiou, was not u question to be determined by the legislature, or by the cor])oration, but by the courts. It was a (luestion whicii could not l)e authoritatively determined by either party so as to control and liiiid tlie other, 'Like all other matters in- volvinjj; a controversy concerninii' pul)licduty and pri\ate rights,' said the court, 'it is to be adjusted and settled in the regular tribunals, where questions of law and fact are adjudicated on fixed and established prin- ciples, and according to the forms and usages best adapted to secure the imi)artial administration of justice.' In the case at bar, the government, by the act of 1878, undertakes to decide authoritatively what the obliga- tions of the Central Pacific are, and in eftect declares that if the direc- tors of the company do not respect its construction, and obey its man- dates, founded upon such construction, they shall be subject to fine and imprisonment. " Tlie distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had ; the other prescribes what the law shall be in future cases arising under it. Wherever an act under- takes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions. Thus an act of the Legislature of Illinois authorizing the sale of the lands of an intes- tate, to raise a specific sum, to pay certain parties their claims against the estate of the deceased for moneys advanced and liabilities incurred, was held unconstitutional on the ground that it involved a judicial deter- mination that the estate was indebted to those parties for the moneys ad- vanced and liabilities incurred. The ascertainment of indebtedness from one party to another, and a direction for its payment, the court consid- ered to be judicial acts whicli could not be performed by the legislature. — (3 Scam., 238.) So also an act of the Legislature of Tennessee authoriz- ing a guardian of infant heirs to sell certain lands of which their ances- tors died seized, and directing the proceeds to be applied to the payment of the ancestor's debts, was, on similar grounds, hehl to be unconstitu- tional. — (Jones vs. Perry, 10 Yerger, 59.) Tested by the principles thus illustrated the act of 1378 must be held in many ways to transcend the legislative power of Congress. " I cannot assent to the doctrine which would ascribe to the federal government a sovei-eign right to treat as it may choose corporations with which it deals, and would exempt it from that great law of morality which should bind all governments, as it binds all individuals, to do justice and keep faith. Because it was deemed important, on the adop- tion of the Constitution, in the light of wdiat was known as tender laws, appraisement laws, stay laws, and installment laws of the States, which Story says had prostrated all private credit and all private morals, to in- sert a clause prohibiting the States from passing any law impairing the obligation of contracts, and no clause prohibiting the federal government 248 from like legislation is found, it is argued that no such prohibition upon it exists. " ' It is true,' us I had occasion to observe in another case, ' there is no provision in the Constitution forbidding in express terms such legislation. And it is also true that there are express powers delegated to Congress, the execution of which necessarily operates to impair the obligation of contracts. It was the object of the framers of that instrument to create a national government, competent to represent the entire country in its relations with foreign nations and to accomplish by its legislation measures of common interest to all the people, which the several States in tlieir in- dependent capacities were incapable of effecting, or if capable, the execu- tion of which would be attended with great difficulty and embarrassment. They, therefore, clothed Congress Avith all the powers essential to the successful accomplishment of these ends, and carefully withheld the grant of all other powers. Some of the powers granted, from their very nature, interfere in their execution with contracts of parties. Thus war suspends intercourse and commerce between citizens or subjects of bellig- erent nations; it renders during its continuance the performance of con- tracts previously made, unlawful. These incidental consequences were contemplated in the grant of the war power. So the regulation of com- merce and the imposition of duties may so affect the prices of articles imported or manufactured as to essentially alter the value of previous contracts respecting them; but this incidental consequence was seen in the grant of the power over commerce and duties. There can be no valid objection to laws passed in execution of express powers, that consequences like these follow incidentally from their execution. But it is otherwise when such consequences do not follow incidentally, but are directly en- acted.' " ' The only express authority for any legislation affecting the obligation of contracts is found in the power to establish a uniform system of bank- ruptcy, the direct object of which is to release insolvent debtors from their contracts upon the surrender of their property.' — (12 Wallace, 663.) From this express grant in the case of bankrupts the inference is deduc- ible that there was no general power to interfere with contracts. If such general power existed there could have been no occasion for the delega- tion of an expre.ss power in the case of bankrupts. The argument for the general power from the absence of a special prohibition proceeds upon a misconception of the nature of the federal government as one of limited powers. It can exercise only such powers as are specifically granted or are necessarily implied. All other powers, not prohibited to the States, are reserved to them or to the people. As I said in the case referred to, the doctrine that where a power is not expressly forbidden it may be ex- ercised, would change the whole character of our government. Accord- ing to the great commentators on the Constitution, and the opinions of the great jurists, who have studied and interpreted its meaning, the true doctrine is, that where a power is not in terms granted, and is not 249 necessary or proper for the exercise of ;i power tlins granted, it does not exist. It would not be pretended, for example, had there been no amend- ments to the Constitution as originally adopted, that Congress could have passed a law respecting an establishment of religion or prohibiting the flee exercise thereof or abridging the freedom of speech, or the right of the people to assemble and petition for a redress of grievances. The amendments prohibiting the exercise of any such power were adopted in the language of the preamble accompanying them, when presented to the States, ' in order to prevent misconception or almse' of the jtowers of the Constitution. " Independent of these A'iews, there are many considerations whi(;h lead to the conclusion that the power to impair contracts, by direct action to that end, does not exist with the general government. In the tirst place, one of the objects of the Constitution, expres.sed in its ju-eamble, was the establishment of justice, and what that meant in its relations to contracts is not left, a-s was justly said by the late Chief .Tustice, in Hep- burn A's. Griswold, to inference or conjecture. As he observes, at the time the Constitution was undergoing discussion in the Convention, the Congress of the Confederation was engaged in framing the ordinance for the government of the Northwestern Territory, in which certain articles of compact were established between the people of the original States and the people of the territory, for the purpose, as expres.sed in the instru- ment, of extending the fundamental principles of civil and religious lib- erty, upon which the States, their laws and constitutions, were erected. By that ordinance it was declared, that in the just preservation of rights and property, ' no law ought ever to be made, or have force in the said territory, that shall, in any manner, interfere with or affect private con- tracts or engagements bona fide and without fraud previousl}' formed.' The same provision, adds the Chief Justice, found more condensed ex- pression in the prohibition upon the States against imjiairing the obliga- tion of contracts, which has ever been recognized as an efficient safeguard against injustice, and. though the prohibition is not applied in terms to the government of the United States, he expressed the opinion, speaking for himself and the majority of the court at the time, that it was clear ' that those who framed and those who adopted the Constitution, intended that the spirit of this prohibition should pervade the entire body of legis- lation, and that the justice which the Constitution was ordained to estab- lish was not thought by them to be compatible with legislation of an op- posite tendency.' — (8 Wallace, 623.) "Similar views are found expressed in the opinions of other judges of this court. In Calder vs. Bull, which was here in 1798, Mr. Justice Chase said, that there were acts which the federal and State legislatures could not do without exceeding their authority, and among them he mentioned a law which punished a citizen ibr an innocent act ; a law that destroyed or impaired the lawful private contracts of citizens ; a law that made a man judge in his own case ; and a law that took the property from A and 250 gave it to P>. ' It is against all reason and justice,' he added, ' for a peo- ple to entrust a legislature witn such powers, and, therefore, it cannot be presumed that they have done it. They may command what is right and prohibit what is wrong ; but they cannot change innocence iuto guilt or punish innocence as a crime, or violate the right of an antecedent lawful private contract, or the right of private property. To maintain that a federal or State legislature possesses such powers if they had not been expressly restrained, would, in my opinion, be a political heresy alto- gether inadmissible in all free republican governments.' — (3 Dallas, 388.) " In Ogden vs. Saunders, Avhich was before this court in 1827, Mr. Jus- tice Thompson, referring to the clauses of the Constitution prohibiting the State from passing a bill of attainder, an ex post facto law, or a law impairing the obligation of contracts, said : ' Neither provision can strictly be considered as introducing any new principle, but only for greater security and safety to incorporate into this charter provisions admitted by all to be among the first principles of our government. No State court would, I presume, sanction and enforce an ex post facto law, if no such prohibition was contained in the Constitution of the United States; so, neither would retrospective laws, taking away vested rights, be enforced. Such laws are repugnant to those fundamental principles upon which every just system of laws is founded.' "In the Federalist, Mr. Madison declared that laws impairing the obligation of contracts were contrary to the first principles of the social compact and to every principle of sound legislation ; and in the Dart- mouth College case Mr. Webster contended that acts, which were there held to impair the obligation of contracts, were not the exercise of a power properly legislative, as their object and effect was to take away vested rights. 'To justify the taking away of vested rights,' he said, ' there must be a forfeiture, to adjudge upon and declare which is the proper province of the judiciary.' Surely the Constitution would have failed to establish justice had it allowed the exercise of such a dangerous power to the Congress of the United States. " In the second place, legislation impairing the obligation of contracts impinges upon the provision of the Constitution which declares that no one shall be deprived of his property without due process of law ; and that means by law in its regular course of administration through the courts of justice. Contracts are property, and a large portion of the wealth of the country exists in that form. Whatever impairs their value diminishes, therefore, the property of the owner, and if that be effected by direct legislative action operating upon the contract, forbidding its enforcement or transfer, or otherwise restricting its use, the owner is as much deprived of his property without due process of law as if the con- tract were impounded, or the value it represents were in terms wholly or partially confiscated. " In the case at bar the contract with the Central Pacific is, as I have said, changed in essential particulars. Tlie company is compelled to ac- 251 cept it in its cluingcd form, and by Icgi.slutivc decree, without the inter- vention of the courts, that is, witliout dvie process of law, to pay out of its earnings each year to its contractors, the United States, or deposit with them, a sum that may amount to twelve hundred thousand dollars, and this, twenty years before the debt to w hicli it is to be applied bcconics due and payable by the company. If tliis taking of the earnings of the company and keeping them from its use during these twenty years to come is not depriving the company of its i)roperfy. it would be difficult to give any meaning to the provision hi' the Constitution. It will only be necessary hereafter to give to the seizure of another's property or earnings a new name— to call it the creation of a sinking fund, or the providing against the possible wastefulness or improvidence of tlie owner— to get rid of the constitutional restraint. To my mind the evasion of 1 hat ( lausc, the frittering away of all sense and meaning to it, arc iusupcralilc objec- tions to the legislation of Congress. Where contracts are impaired, or when operating against the government are sought to be evaded and avoided by legislation, a blow is given to the security of all projjorty. If the government will not keep its faith, little better can be exiiected from the citizen. If contracts are not observed, no property will in the end be respected; and all history shows that rights of person are unsafe where property is insecure* Protection to one goes with protection to the other ; and there can be neither prosperity nor progress where this foundation of all just government is unsettled. ' The moment,' said the elderAdams, 'the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.' " I am aware of the opinion which prevails generally that the Pacific railroad corporations have, by their accumulation wealth, and the num- bers in their employ, become so powerful as to be disturbing and danger- ous influences in the legislation of the country ; and that they should, therefore, be brought by stringent measures into subjection to the State. This may be true ; I do not say that it is not ; but if it is, it furnishes no justilication for the repudiation or evasion of the contracts made with them by the government. The law that protects the wealth of the most powerful, protects also the earnings of the most humble; and the law which would confiscate the property of the one would in the end take the earnings of the other. " There are many other objections to the act of Congress besides those I have mentioned— each to my mind convincing — but why add to what has already been said. If the reasons given will not convince, neither would any others which could be presented. I w ill, tlu-refore, refer only to the interference of the law with the rights of the State of California. " The Central Pacific being a State corporation, the law creating it is, by the constitution of California, subject to alteration, amendment, and re- peal by its legislature at any time— a power which the legislature can neither abdicate nor transfer. In its assent given to the company to ex-. 252 tend its road into the territory of the United States— the general govern- ment having authorized the extension— the legislature reserved the tome control which it possesses over other railroad and telegraph companies created hy it. That control under the new constitution, goes, as is claimed, ■ to tlxe extent of regulating the fares and freights of the company, thus linaiting its income or earnings; and of supervising all its husiness, even to the keeping of its accounts, making disobedience of its directors to the regulations established for its management punishable by fine and im- prisonment ; and the legislature may impose the additional penalty ol" a forfeiture of the franchises and privileges of the company. The law in existence when the corporation was created, and still in force, requires the creation of a sinking fund by the company to meet its bonds, and under it large sums have been accumulated for that purpose, and still further sums must be raised. In a word, the law of the State undertakes to con- trol and manage the corporation, in all particulars required for the ser- vice, convenience, and protection of the public ; and can there be a doubt in the mind of any one that over its own creations the State has, within its own territory, as against the United States, the superior authority ? Yet the power asserted by the general government in the passage of the act of 1878 would justify legislation affecting all the affairs of the com- pany, both in the State and in the Territories of the United States. It could treble the amount of the sum to be annually deposited in the sink- ing fund ; it could command the immediate deposit of the entire amount of the ultimate indebtedness ; it could change the order of the liens held by the government and the first mortgage bondholders ; it could extend the lien of the government beyond the property to the entire income of the company, and, in tact, does so by the act in question (sec. 9) ; it could require the transportation for the government to be made without com- pensation, and it could subject the company to burdens which, if antici- pated at the time, would have prevented the construction of the road. A power thus vast, once admitted to exist, might be exerted to control the entire affairs of the company, in direct conflict with the legislation of the State ; its exercise would be a mere matter of legislative discretion in Congress. Yet it is clear that both governments cannot control and man- age the company in the same territory, subjecting its directors to fine and imprisonment for disobeying their regulations. Under the Constitution the management of local affairs is left chiefly to the States, and it never entered into the conception of its framers that under it the creations of the States could be taken from their control. Certain it is that over no subject is it more important for their interests that they should retain the management and direction tlian over corporations brought into existence by them. The decision of the majority goes a great way— further, it ap- pears to me, than any heretofore made by the court — to weaken the au- thority of the States, in this respect, as against the will of Congress. Ac- cording to n\y understanding of its scope and reach, the United States have only to make a contract with. a State corporation, and a loan to it. to onst tlic .jurisdiction of'tlic F^tate, and ])laoe flic corporation under tlicir direction. It would seem plain that if Ic-jislation. taking institutions of the State from its control, can be sustained l)y this court, the helil to l)e such a tax l)_v tlie Siii>renie Court of the State; a calHiiu-, said tlie Court, whicli was limited to the sah' of merchandise not the UTowth or product of the State. To this view the Supremo Court of tlie Unitt'd States, speakinu' throuu'h . I udi^e Field, said : " The general power of tlie State to impose taxes in the way of licenses upon all pursuits and occupations within its limits is admitted, hut like all other powers must be exercised in subordination to the requirements of the federal Constitution. Where the business or occupation consists in the sale of goods, the license tax required for its pursuit is in eflect a tax upon the goods themselves. If such a tax be within the power of the State to levy, it matters not whether it be raised directly from the goods, or indirectly from them through the license to the dealer. But if such tax conflict with any power vested in Congress by the Constitution of the Ignited States, it will not be any the less invalid because enforced through the form of a personal license. "In the case of Brown vs. Mar^-land * tlie question arose whether an act of the Legislature of Maryland requiring importers of foreign goods to pay tiie State a license tax before selling them in the form and condi- tion in which they were imported, was valid and constitutional. It was contended that the tax was not imposed on the importation of foreign goods, but upon the trade and occupation of selling such goods by whole- sale after they were imported. It was a tax. said the counsel, upon the profession or trade of the party when that trade was carried on within the State, and was laid upon the same jiriiiciple as the usual taxes upon retailers, or inn-keepers, or hawkers and pedhirs, or upon any other trade exercised within the State. But the Court in its decision replied that it was impossilde to conceal the taf't tliat this mode of taxation was only varying the form without varying the substance, that a tax on the occu- pation of an importer was a tax on importation, and must add to the price of the article and be paid by the consumer or by the importer him- self in like manner as a direct duty on the article itself. Treating the exaction of the license tax from the importer as a tax on the goods im- ported, the Court held that the act of .Maryland was in conflict with the Constitution ; with the clause proliibiting a State, without the consent of Congress, from laying any impost or duty on imports or exports, and with the clause investing Congress with the jiower to regulate commerce with foreign nations. *!;? Wheaton, 4-25, 444. 26-2 "►So, in like manner, the license tax exacted by the State of Missouri from dealers in goods which are not the product or manufacture of the State, before they can be sokl from place to place within the State, must be regarded as a tax upon such goods themselves. And the question presented is, whether legislation thus discriminatingagaiust the products of other States in the conditions of their sale by a certain class of dealers is valid under the Constitution of the United States. It was contended in the State Courts, and it is urged here, that this legislation violates that clause of the Constitution which declares that Congress shall have the power to regulate commerce with foreign nations and among the several States. The power to regulate conferred by that clause upon Congress, is one without limitation ; and to regulate commerce is to prescribe rules by which it shall be governed, that is, the conditions upon which it Shall be conducted ; to determine how far it shall be free and untrammeled ; how far it sliall be ))urdened by duties and imposts, and how far it shall be prohibited. " Commerce is a term of the largest import ; it comprehends intercourse for the i:)urposes of trade in any and all its forms, including the trans- portation, purchase, sale, knd exchange of commodities between the citi- zens of our country and the citizens or subjects of other countries, and between the citizens of different States. The power to regulate it em- braces all the instruments by which such commerce may be conducted. So liir as some of these instruments are concerned, and some subjects which are local in their operation, it has been held that the States may provide regulations until Congress acts with reference to them. But where the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the j)Ower is exclusive of all State authority. " It will not be denied that that portion of commerce with foreign countries and between the States, which consists in tlie transportation and exchange of commodities, is of national importaiice, and admits and requires uniformity of regulation. The very object of investing this power in the general goverunient was to insure this ixniformity against discriminating State legislation. The depressed condition of commerce and the obstacles to its growth previous to the adoption of the Constitu- tion, from the want of some single controlling authority, has been fre- quently referred to by this Court in commenting upon the power in question. 'It was regulated,' says Chief Justice Marshall, in delivering the opinion in Brown vs. Maryland, 'by foreign nations with a single view to their own interests, and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties, but the inability of the Federal Government to enforce them became so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the neces- 2()8 sity of giving (lu^ control over this impoft;uit subject to ;i single govern- ment. It niiiy be doubtful whether any of the evils proceeding from the feebleness of the I-^ederal Government contributed more to that great rev- olution which inlroiluceil the present system, than the deep and general conviction that couunerce ought to l)e regulated by Congress.' "The power which insures uniformity of connnercial regulation must cover the property which is transported as an article of commerce from hostile or interfering legislation until it has mingled with and become a part ol" the general ])roperty of the (;ountry and subjected like it to sim- ilar protection, and to no greater burdens. If at any time l)eforc it has thus become incorporated into the mass of i)ropcrty of the State or na- tion, if can be subjected to any restrictions by State legislation, the ob- ject of investing the control in Congress may be entirely defeated. If Missouri can require a license ta.K for the sale by traveling dealers of goods which are the growth, product, or manuflicture of other States or countries, it may require such license tax as a condition of their sale from ordinary merchants, and the amount of the tax will be a matter resting exclusively in its discretion. " The power of the State to exact a license tax of any amount being ad- mitted, no authority would remain in the United States or in this Court to control its action, however unreasonable or oppressive. Imposts oper- ating as an absolute exclusion of the goods would be possible, and all the evils of discriminating State legislation, favorable to the interests of one State and injurious to the interests of other States and countries, which existed previous to the adoption of the Constitution, might follow, and the experience of the last llfteen years shows would follow from the ac- tion of some of the States. " There is a difficulty, it is true, in all cases of this character, in draw- ing the line precisely where the commercial power of Congress ends and the power of the State begins. A similar difficulty was felt by this Court iu Brown vs. Maryland, in drawing the line of distinction between the restriction upon the power of the States to lay a duty on imports, and their acknowledged power to tax persons and property, but the Court observed that the two, though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them, but that, as the distinction exists, it must be marked as the cases arise. And the Court, after observing that it might be premature to state any rule as being universal in its application, held that when the importer had so acted upon the thing imported that it had become incorporated and mixed up with the mass of property in the country, it had lost its dis- tinctive character as an import, and become subject to the taxing power of the State, but that while remaining the property of the importer, in his warehouse in the original form and package in which it was im- ported, the tax upon it was plainly a duty ou imports, prohibited by the Constitution. 264 " Following the guarded language of the Court in that case we observe here, as was observed there, that it would be premature to state any rule which would be universal in its application to determine when the com- mercial power of the Federal Government over a commodity has ceased and the power of the State has commenced. It is sufficient to hold now that the commercial power continues until the commodit3' has ceased to be the subject of discriminating legislation by reason of its foreign char- acter. That power protects it, even after it has entered the State, from any burden imposed by reason of its foreign origin. The act of Missouri encroaches upon this power in this respect, and is, therefore, in our judg- ment, unconstitutional and void. " The fact tliat Congress has not seen fit to prescribe any specific rules to govern inter-state commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with re- spect to foreign commerce, is equivalent to a declaration that inter-state commerce shall be free and untrammeled. As the main object of that commerce is the sale and exchange of commodities, the policy thus es- tablished would be defeated by discriminating legislation like that of Missouri." The doctrine of tlii.-^ case has been approved in Tiernan vs. Rinker (12 Otto, 123); and in Webber vs. State of Virg-inia (13 Id.), in both of wliicli cases Jndv the hoard thi'ouuh its authorized en78 whilst others, bt-iufj; U)Va\ in their imturc or opciiitioii. can he Ijest re<^ii- lated by the States, the exclusiveness of the power in any case is to be determined more by the nature of the subject uixm whirli it is to operate than by the terms of the grant, wliieli. thon.uli ueneral, arc not accompa- nied l>y any express prohibition to the exercise of the jjower by the States. The decision was confined to tlie validity of regulations by the States of harbor pilotage ; but the reasoning of the Court suggested as satisfactory a solution as perhaps could be obtained of the question which had so long divided the judges. The views expressed in the opinion delivered are followed in Oilman vs. Philadelphia (3 Wall., 727), and are mentioned with approval in Crandall vs. State of Nevada (6 Wall., 42). In the first of these cases the Court, after stating that some subjects of commerce call for uniform rules and national legislation, and that others can ' be best regulated by rules and provisions suggested by the varying circumstances of ditferent localities, and limited in their operation to such localities re- spectively,' says, ' whether the power in any given case is vested exclu- sively in the general government, depends upon the nature of the sub- ject regulated.' The doctrine was subsequently recognized in the case of Welton vs. ]Missouri (91 U. S., 282), in Henderson vs. Mayor of New York (95 U. S., 259), and in numerous other cases ; and it may be con- sidered as expressing the final judgment of the Court. Perhaps some of the divergence of views upon this question among former judges may have arisen from not always bearing in mind the dis- tinction between commerce, as strictly defined, and its local aids or in- struments or measures taken for its improvement. Commerce with for- eign countries and among the States, strictly considered, consists in inter- course and traffic, including in these terms navigation and the trans- portation and transit of persons and property as well as the purchase, sale, and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules applicable alike to the whole country ; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, therefore,' permissible. Language affirming the exchisiveness of the grant of power over commerce as thus defined may not be inaccurate, when i1^ would be so if applied to legislation upon subjects which are merely auxiliary to commerce." The Power of Taxation by the Oexeral axi> State Governments, and some of its LiMiT.vnoNS. It has been settled hy immeroiis decisions of the Su- preme Court of the United States that the ohliii-ations and instrumentahties of the o:eneral o-overnment, that is. l74 tlie moans by which its functions are executed, arc not subject to taxation by the States. Ill McCallough vs. Alaryhuid, (4 Wheaton, 432,) de- cided in 1819, — which is the leading case on this sub- ject, — a statute of Maiyland imposing a tax upon a branch of the Bank of the United States estabhshed at Balti- more, in that State, was considered. The Ooui't held that the bank, being one of the instrumentalities of the gov- ernment in the execution of its powers, was not subject to taxation by the State; that the power to create the bank implied the power to preserve it, and that the right of the State to tax, if conceded, might be so exercised as to destroy the institution, and thus wholly defeat the op- erations of the Federal Government. " If the States," said Chief Justice Marshall, " may tax one instrument employed by the government in the execution of its pow- ers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom- house, tliey may tax judicial process; they may tax all the means emj!)loyed by the government to an excess wliich would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States." In Weston vs. Charleston, (2d Peters, 449,) decided in 1829, an ordinance of the city of Charleston imposing a tax upon all personal estate owned in the said city, includ- ing, among other things, six and seven per cent, stock of the United States, was considered. The Court held that the tax in question was a tax upon the contract subsisting between the government and individuals, and, therefore, operated directly upon the power to borrow money on the credit of the United States; that if the right to impose it existed with the States, it was a right wdiich in its nature acknowledged no limits, and might be exercised to the serious endiarrassment of the Federal (rovernment; that such ;i rii;-lit was, tlKM'cl'oi'e, iiicoiisistcMit with the sii[(reiuacy of that ii'ovenmuMit in the powers i^-i'aiitcd to it. Til DobhiiKs vs. The Coininissiotun-s of Krie County, (K; Peters, 435,) deeided in 1842, a law of Pennsylvania, authorizing an assessment upon all "■ oliiees and positions of profit," was lield invalid so far as it applied to offices of the United States, the Court re-affirming the doctrine that the States cannot impose a tax upon the means and instru- mentalities of the general government in the execution of its powers. The compensation, said the Court, of an officer of the United States is fixed by a law of Congress passed in the exercise of its discretion; such law confers upon liim the right to the compensation in its entireness,and any act of a State imposing a tax upon the olRce in diminishing its recompense conflicts with that law. The principle involved in these decisions, that the means and instrumentalities by which the general gov- ernment executes its powders cannot be embarrassed and burdened by the action of the States, is equally applicable to prevent the means and instrumentalities of the govern- ments of the States, essential to the execution of their re- served powers, from being in like manner embarrassed and burdened l)y the general government, and was so applied in the case of Collector vs. Day.— (11 Wall., 113.) Un- der an act of Congress a tax had been levied upon the salarj' of a judge of probate in Massachusetts. The judge paid the tax under protest, and brought suit to recover it back. The Supreme Court held that it was not compe- tent for Congress to impose a tax upon the salary of a ju- dicial officer of a State. Referring to the case of Dobbins vs. Tlie Commissioners of Erie County, the Court, speak- ing through Judge ISTelson, said: " If the means and instrumentalities employed by that government [the general government] to carry into operation the powers granted to it are, necessarily, and, for the sake of self-preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from federal taxation ? Their unimpaired existence in the one case is as essential as in the other. It is 19 27(J admitted that there is no express provision in the Constitntion that pro- hihits the general government from taxing the means and instrumentali- ties of the Slates, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the ex- emption rests i^pon necessary implication, and is upheld by the great lavs^ of self-preservation ; as any government, whose means employed in conducting its oiierations, if subject to the control of another and distinct government, can exist only at the mercy of that government." Ill addition to this restriction upon both governments in tlie power of taxation, — that it cannot be exercised so as to impair the existence and efficiency of the other — there is a further restriction necessarily arising from the hmits of their territorial jurisdiction. I^either can exercise the taxing power upon property or persons beyond that juris- diction. The attempt to exercise it in that way would be regarded elsewhere as a mere abuse of authority. Says Chief Justice Marshall: "All subjects over which the sov- ereign power of a State extends are objects of taxation, but those over which it does not extend are upon the soundest principles exempt from taxation. This proposition may al- most be pronounced self-evident." — (4 Wheaton, 429.) This subject came before the Supreme Court for special consideration in the case of Railroad Company vs. Penn- sylvania, which is reported under the title of State Tax on Foreign-Held Bonds.— (15 Wall., 300.) In May, 1868, the Legislature of that State passed an act requiring the president, treasurer, or cashier of every corporation, ex- cept savings banks created under its laws and doing busi- ness there, which paid interest to bondholders or other creditors, to retain from them before such payment a tax of five per cent, upon every dollar of interest, and to pay ovei- the same semi-annually to the State treasurer for the use of the Commonwealth. In 1848 the Legislatui'e of Ohio incorporated the Cleve- land, Painesville and Ashtabula Kailroad Company, and authorized it to construct a railroad from the city of Cleve- land, in that State, to the line of the State of Pennsylva- nia. Under this act and its supplement, passed in 1850, tlic n^ad \v:is constructed. 111,1854 tlio Ijcuisiatui'c of I'oiin- syl\:iiiia antliorized the c(Mii])aiiy to coMstniet a road iVoni Kric, ill tliat State, to tlie State line of Oliio, so as to con- nect with tlie voad iVoni Clcvchind, and to [turchasc a I'oad already constructed between those places. This road was constructed, or tlie one c(nistfucted was purchased, so that the two roads etfected a continuons line hetweeii the cities of Cleveland and Erie a distance of iiinety-Hve and oue-half miles, twenty -tive of which were in Pennsylva- nia. The company, so far as it acted in Pennsylvania uiid(M- the authority of an act of its Le^'islature, was held to he a corporation in that State aud subject to its laws for the taxation of incorporated companies, thongh there was only one board of directors for both companies. ]n 1any set apart and tendered to Wardell one liundivd tlionsand dollars for his share, lie, not being satisfied with tli(> settle- ment, l)ronglit a snit, in his own nanu', against the rail- road eompany, alleging as a reason that a majority of the dii'eetors and stoi'khoiders of the eoal c-ompany were also directors and stot-kliolders of the I'aih'oad eom[»any, and that therefore he could ohtain no relief hy a suit in the name of the coal eompany. lie prayed that an account ndght be taken of the anvount due for the coal delivered to the railroad com[»any, for drawback on freight from the date of the contract, for coal extracted from the nunes since their seizure and for the proi)erty of the coal company taken, and for the damages arising fi'om the attempted abrogation of the contract. To this suit the railroad company set up, among other tilings, that tlie con- tract of July Kith, 1SS comidcration. — (Gveiit Lnxt'in1)t)urg Co. vs. ]M;igiiny, 2.") Beavnn, 586 ; " Benson vs. Heathorn, 1 Young & Coll., 326 ; Flint & Pere Marquette Ji. E. Co. vs. Dewey, 14 Michigan, 477 ; European & N. American R. R. Co. vs. Poor, 59 Maine, *277; and Drary vs. Cross, 7 Wall., 299.) " The scheme disclosed here has no feature which relieves it of its fraudulent character, and the contract of July 16, 1868, which was an es- sential part, of it, must go down with it. It was a fraudulent proceeding on the ])art of the directors and contractors who devised and carried it into execution, not only against the company, but also against the gov- ' ernment, which had largely contributed to its aid by the loan of bonds and by the grant of lands. By the very terms of the charter of the com- pany live per cent, of its net earnings were to be paid to the government. Those earnings were necessarily reduced by every transaction which took from the company its legitimate profits. It is true that some of the directors, who approved of or did not dissent from the contract, early stated that they held their stock in the coal company for the benefit of the railroad company, and transfen-ed it, or were ready to transfer it, to the latter ; but the majority expressed such a purpose only when the character and terms of the contract became known and they were desir- ous to screen themselves from censure for their conduct. " The complainant, therefore, can derive no benefit from the contract thus tainted, or sustain any claim against the railioad company for its repudiation." — (13 Otto.j The Use of KuNNiNa Waters on the Ptblic Lands. Wlien it was known that gold liad been discovered in California, and existed in such form and quantity as to re- ward individual exploration and labor, an immense immi- gration set in foi- the country. Gold-seekers came from all parts of tlie world, and in such numbers as to swell the population in three or four years from a few tliou- sands to over half a million. A great number of these— perhaps one-third — remained in the cities and engaged in commerce, or settled upon the fertile binds in the valleys and cultivated the soil, or raised cattle from the rich pas- turage afforded. The greater portion spread over the mineral region, which was chiefly in the Sierra Xevada Mountains. The title to the whole of the lands compos- ing tills region was in the United States, and no law had :28!i been passed which provided i'or their occnpatioii and [>ur- cliase. The riii'lits wliich the miners asserted were merely possess(^ry. and to protect each other in tiicir psssession and in extracting;- gold from the hinds, they were com- pelled to adopt certain rules foi- their government. The character, justice, and wisdom of the rules established by them in dilferent localities, are fully stated in an opiinon delivered by Judge Field in the Supreme Court, in the case of Jennison vs. Kirk, (8 Otto, 457,) an extract of which is given on pages 6, 7, and 8 of this volume. In working the mines water was a necessity; without it gold could not be separated from the earth or rock in which it was buried. The ^loctrines of the common law relating to the rights of riparian proprietors were not ap- plicable to the conditions and wants of the miners. They accordingly adopted rules for the regulation of the pos- session and use of watei', as they had done for the posses- sion and working of their mining claims. These regula- tions controlled the disposition of properties of the value of many millions. The same general system of regulations, so inti'insically just w^ere they deemed, was established by iinnei's in the territor}' east of the Sie'rra jSTevada Mountains — in I^Te- vada, Montana, and Idaho; indeed, wdierever the precious metals were found. Questions arising under them were constantly before the local Courts, and in some instances found their way to the Su})reme Court of the United States. In Atchison vs. Peterson,* which was before that Court in 1874, the question was presented as to the right, from prior appropriation, to the use for mining purposes of the water of a stream without deterioration in quality and value. The suit was brought to restrain the defendants from carrying on certain mining work on a creek in the Territory of Montana, on the alleged ground that the water, diverted by the complainants from the stream for mining purposes, was, by such work, thus deteriorated. '■■ 20 Wall.. 50- 290 TliG coiuiiliunaiits were tlie owners of two ditches or canals, consti-ucted at a cost of |117,000, l)y which the creek was tapped and the water diverted and convej-ed a distance of eighteen miles to certain mining districts, and there sold to miners. At a point about fifteen miles above the place where the creek was thus tapped the defendants were work- ing mining ground, which they had acquired subsequently to the time when the complainants commenced the con- struction of the ditches. In some places in their work the defendants washed down tlie earth from the side of the hills bordering on the stream; in other places they exca- vated the earth, and threw such portions as were supposed to contain gold into sluices, upon which the w^ater was turned. The earth from the washings on the hillsides, and from the sluices, was carried into the creek and af- fected its whole current, filling the water to some extent with mud, sand, and sediment. The evidence as to the extent of the deterioration was conflicting, but tlie great preponderance of it was to the efiect that the injury in quality from this cause, at the point where the complain- ants tapped the stream, was so slight as not, in any mate- rial extent, to impair the value of the water for mining, or to render it less salable to the miners at the places where it was carried. The District Court denied the injunction, and the Su- preme Court of the Territorj^ affirmed the decree, and the case was taken to the Supreme Court. In affirming the decree that Court, speaking through Judge Field, said as follows: " By the custom which has obtained aniong miners in the Pacific States and Territories, where mining for the precious metals is had on the pub- lic lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams on such lauds for min- ing purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners 291 were, ;i1 an early tlay, after tlic discDvcry of <;'(il(l, I'ound to lie iiiaiiplica- ble or applicable only ill a very limited extent lo tiie necessities o I' llie miners, and iiuule(iuate to tlieir protection. By the common law tlie ri- l»arian owner on a stream not navigable, takes the hind to the centre of the stream, and such owner has the right to the use of the water Ilovvin<; over the land as au incident to his estate. And as all such owners on the same stream liave an equality of right to the use of the water, as it nat- urally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him. ' It is wholly immaterial,' says Mr. Justice Story, in Tyler vs. Wilkinson, ' whether the party be a proprietor above or below in tlie course of the river; the right being common to all the proprietors on the river, no one lias a right to diminish the quantity which will, according to the natural <'urreut, flow to the proprietor below, or to throw it back upon a proprie- tor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all.'* ' Every pro- prietor of lands on the banks of a river,' says Kent, 'has naturally an e((ual right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (carrere solehat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua cur- rit et debet ctirrere ut currcre solebat. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary chaunel when it leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of the water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above witliout a grant or an uninterrupted en- joyment of twenty years, which is evidence of it. This is the clear and settled doctrine on the subject, and all the difficulty which arises consists in the application.'! " This equality of right among all the proi)rietors on the same stream would have been incompatible with any extended diversion of the ^\■ater l)y one proprietor, and its conveyance for mining pui'poses to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the com- * 4 Mason, :?79. f-^ Kent's C'oium., 439. 20 292 inou-law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acqniescence, assented to the general occupation of the public lands for mining, and, to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connectshis own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to it.s use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories by their customs, usages, and regulations everywhere recognized the in- herent justice of this principle, and the principle itself was at au early period recognized by legislation and enforced by the courts in those States and Territories. In Irwin vs. Phillips,* a case decided by the Supreme Court of California in January, 1855, this subject was considered. After stating that a system of rules had been permitted to grow up with re- pect to mining on tlie public lands by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the federal government, and heartily encouraged by the expressed legislative policy of the State, the Court said : ' If there are, as must beadmitted, numy things connected with this system which are crude and undigested, and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and, effect of res «(//Mrfic«/rt. Among these the most important are the rights of miners to be protected in their selected local- ities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have con- ducted them for miles over mountains and ravines to supply the neces- sities of gold diggers, and without which the most important interests of the mineral region would remain without development. So fully recog- nized have become these rights, that without any specific legislation con- ferring or confirming them, they are alluded to and spoken of in various acts of the Legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law- makers.' " This doctrine of right by prior appropriation, was recognized by the legislation of Congress in 1866.t The act granting the right of way to ditch and canal owners over the public lands, and for other purposes, passed on the 26th of July of that year, in its ninth section declares ' that when- ever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.' * 5 Cal,, 140, 1 14 Stats, at Large, 253. 0()0 "Tlic riu'lit 1(( wilier ))y prior ;xpi>r(ii)ii;i1 ion, (liiis r(H'oi;!ii/.c(l and cstali- lislicd .IS Hr" law ol' minors on the mineral lands of Die imlilie domain, is limited in every ease, in (inantity and (|nali1y, hy tlie uses for wliicli the appropriation is made. A dilVerenl use of llie water sul)se(|uenl ly does not aiitect the riuht ; that is subject, to the same limitations, wli;il- ever the U.se. The appropriation does not eonl'er sueli an absolute ri.nlit to the body of the water diverted that the owner can allow it, after its diversion, to run to waste, and prevent others from usin-lK)Ut the coutitrv. Its liistory is brie'tly this. In March, 1863, tho schooner /. M. Chrpmai) was seized in the harhov of San Fi-anciscD \)y \hr Tnited States rev- enue ortieers, whih^ saiHni;-, or al)ont to sail, on a. cruise, in the service of the Confederate States, against the connnerce of the United States, and the leadei's of the expedition, named Greatliouse, Harpending, Ruhcry,La.w, and Libby, were indicted under the act of Congress of July ITtli, 1862, for engaging in and giving aid and conil'ort to the then existing rebeHion against the government of the United States. Tlie case was called for trial at the Octo- ber term of 1868. A nolle pro^iciiid was entered as to Law and Libl)y, and tliey l)ecame witnesses for the prosecution. Their testimon}' and that of others showed that Har- pending, a native of Kentucky, and Rul)ery, a native of England, had for some time contemplated the titting out of a privateer at San Francisco, for the purpose of taking several of the mail steamships plying between that port and limama, and other vessels. With this object in view, Ilarpending had gone across the country to Richmond, A'irginia, and procured from Jefferson Davis, the Presi- dent of the Ccmfederate States, a letter of marque, au- thorizing him to prey upon the commerce of the United States, and to burn, board, or take any vessel of their cit- izens; and also a letter of instructions directing him how to act, and containing the form of a bond, in case any prize taken should be bonded. Upon his return to San Francisco he and Ruber}'- made arrangements for the pur- chase of a vessel which would suit their purpose; but these arrangements afterwards fail^ed, on account of the dishonor of the drafts drawn for the purchase-money by Rubeiy, and the consequent want of funds. They also niade a voyage to Cerros Island for the purpose of examining into its fitness as a depot and as a rendezvous whence to attack the steamers going to Panama. In Januar}^ or February, 1863, Ilarpending made the acquaintance, at San Francisco, of Law, a ship captain ; 298 broached to liini the project of fittinii; out a privateer; 8tated what had been done; exhibited his letter of marque and instructions; sohcited him to enter into the enterprise and assist in procuring a vessel; and said, among other things, that if he had succeeded in carrying out his pre- vious arrangements, he could easily have taken three of the mail steamers. Law agreed to take part in the scheme, and soon afterwards pointed out the schooner /. M. Chap- man, a vessel of about ninety tons burden and a fast sailer, as well adapted for the intended cruise. Several meetings in reference to the subject took place between Harpend- ing, Rubery, Law, and Greathouse, (who had been intro- duced 1)y Ilarpending to Law as a capitalist,) and the re- sult Avas that Greathouse purchased the schooner, and fur- nished money to procure arms, ammunition, and stores, and to engage a mate and a crew. The next morning Law took charge of the schooner, moved it to a wharf at the city front, informed Libby of the project, and induced him to go as mate, and engaged four seamen and a cook. All tills time Greathouse gave out that he was acting in the interest of the " Liberal Party " in Mexico, and under this pretext, arms and ammunition were purchased, con- sisting of two brass rifled twelve-pounders, shells, fuse, powder, muskets, pistols, lead, caps, and knives. These were packed in cases marked '^ oil mill " and " ma- chinery," and shipped as quietly as possible, and there was also shipped a number of uniforms, such as are usually w^orn by men on vessels of war. A large amount of lum- ber was also purchased and shipped, with whicli to con- struct berths, a prison room, and a lower deck. The in- tention of the parties was to sail from San Francisco on Sunday the 15th of March, 1863, to the island of Guada- lupe, which hes some three hundred miles off the coast of California; there" land Ilarpending and the flighting men, who Averc to be sliipped on the night of Saturday the 14th; thence proceed to Manzanillo, and discharge such freight as mii;-ht betaken; nu^n return t.. (iuadaliiiH'. and (if tlie RclnxMier lor privateoring puri»().sLvs; then imtceL-d apiiii to Maii/anillo, wliere the men Avere to be enrolled and their names inserted in the letter of marque, a eo]iy of which was thereupon to be forwarded to the i;-overinnent ol" tlu; Confederate States. It was their plan first to capture a steamer bound from San Francisco to Panama, on its arrival at Manzanillo, land its passengers, aiid with the steamer thus taken capture a second steamer; next to seize a ves- sel from San Franciscc^ then engaged in recovering treas- ure from the wreck of the steamer Golden Gate; thence to go to the Ohincha Islands, and burn vessels there be- longing to citizens of the United States, and theiuH- to proceed to the China Sea, and finally into the Fiidian Ccean. There they expected to join Admiral Senimes of the Confederate ISTavy. In pm-suance of tliis plan, and to prevent suspicion, the schooner was " put up " for Man- ziinillo. A partial cargo was shipped on board, and Law cleared at the custom-house for that port, signing and swearing to a false manifest. On the night of March 14th, in accordance with the scheme arranged, all the partici- pants went on board. Fifteen persons, who had been em- })loyed by Ilarpending as privateersmen, were placed in the hohl in an open space left for them among the cargo, directly under the main hatch. The only person absent was Law, who remained on shore with the understanding that he should be on hand before morning. It afterwards a[)peared that he had became intoxicated, and did not get down to keep his appointment until after the schooner had been seized. During the evening, Rubery had heard rumors that the vessel was to be overhauled, and as the morning approached and Law^ did not appear, he proposed sailing without him. At daylight. Law being still absent, Libby cast off the lines, and began working the schooner out from the wdiarf into the stream. The main-sail was partially hoisted; but no sooner had the whai'f been left, than two boats w^ere observed [.utting off from the United States sloop-of-war 300 Cyane, then lying at anchor in the bay. As they headed for the schooner, Libby, pointing at them, said to Great- house that they were after them. Rul)ery then insisted on running up the sails, but Libby replied that there was no wind, and it would be useless. In a few minutes after- guards the schooner was boarded and seized by the officers of tlie United States, and the enterprise nipped in the bud. Scarce]}' had the seizure been effected when Law made his appearance on board and was arrested with the others. The revenue ofiicersof the United States had been aware of the intended enterprise from an early period, and main- tained a constant watch on the vessel night and day. They knew the character of the cargo, which had been carefully noted by the watchmen; were aware of the ship- ment of arms, and saw the cases with their false marks. On the Saturday afternoon when the schooner was cleared for Manzanillo, they increased the watch, chartered a steam- tug, and put policemen on board. They also made arrange- ments for the reception and coniinement of prisone-rs at the United States fortifications on Alcatraz Island, and procured the two boats with their crews from the war-ship Cyane, to act in conjunction witli them on a given signal. In the evening, the revenue officers themselves went on board the tug, proceeded to a wharf next that at which the /. M. Chapmait lay, and watclied the men going on board. When the schooner cast off its lines at daylight and headed out into the stream, the boats from the Cyane put off and l)oarded it according to previous arrangement; and at the same time the tug steamed up. Greathouse and Libby were on deck; the others were below. Fifteen men were found in the hold under the hatch, besides two sailors, who had been placed there over night to prevent them from leaving the vessel. A search being instituted for papers, a number of scraps, some torn, some chewed, and some partially burned, were found strewn about the hold. The two sailors confined testified that some of the paify had mi oni[il(iyc'il llie tiiiio iiiterwniiii;- lu'twcou l!u' Koui'diiig of llie vessel and the opeiiiiiu' of the liateliway in destroying papers. Loaded [)istolsand bowie-knives were found stowed away in the interstices between the packages of the cargo. In thv' baggage of Harpcnding and Ruhery were found, among other papers, a proclamation to the people of Cali- iornia to throw otl' the authority of the United States; a plan for the capture of the United States forts at San Fran- eisuo, and particularly Aleatra/; also, the form of an oath of fidelity to their cause, with an imprecation o\' vengeance on all who should prove false. It was shown that some of these papers were in the handwriting of I Larpending; and Rubery admitted that he and one of the defendants had spent some time in preparing the oaths. After4:lie seizure and arrest, the prisoners were taken to Alcatraz and confined. The schooner was uidoaded, and the arms and munitions examined. An army olficer testified that, in his o})inion, the schooner might have de- stroN'cd a I'anama steamer; but naval officers expressed a doubt whether this could have been done. The defence offered no testimony, but claimed, among other things, that a state of war existed between the United States and the Confederate States; that the latter were en- titled to, and had in fact received from the former, bel- ligerent rights; and that privateering on the part of either side was a legitimate mode of warfare, and made those engaged amenable onl}- to the laws of war. They also claimed that the schooner had not started on her voyage, l)ut Inid left the wharf with the intention of anchoring in the stream and waiting there for the captain and papers; that whatever the ultimate intention might have been, there had, in fact, been no commencement of the cruise, and that, at any rate, no ofience could have been com- mitted until the schooner had reached Manzanillo, and been ready to commence hostilities. They finally insisted that there could be no treason and no conviction under the indictment, for the I'eason that ''aid and comfort'' liad not been actuaiU u-iven. 302 Tlie trial lasted three weeks. Judge Hoffman of the District Court sat witli Judge Field, and each of the judges gave their views to the jury, following in that respect the practice which -was adopted in some of the early State cases in the Circuit Courts, at the close of the last cen- tury. — (See Wharton's State Trials, Fries' Case, pages 584 and 587.) In his charge Judge Field defined what constituted treason under the Constitution of the United States, fol- lowing in that respect the definition of Chief Justice Mar- shall in Ex-parte BoUnian and Ex-parte Swartwout, (4 Cranch, 127,) and commented upon and explained the act of July, 1862, under which the indictment was found, and then proceeded as follows : " The existence of the rehellion is a matter of public notoriety, and like matters of general and public concern to the whole country, may bo taken notice of by judges and juries without that particular proof Avhich is re(iuired of the other matters charged. The public notoriety, the pro- clamation of the President, and the acts of Congress are sufficient proof of the allegation of the indictment in this respect. The same notoriety and public documents are also sufficient proof that the rebellion is or- ganized and carried on under a pretended government called the Confed- erate States of America. "As to the treasonable purposes of the defendants there is no conflict in the evidence. It is true the principal witnesses of the government are, according to their own statements, co-conspirators with the defend- ants, and equally involved in guilt with them, if guilt there be in any of them. But their testimony, as you have seen, has been corroborated in many of its essential details. You are, however, the exclusive judges of its credibility. The Court will only say to you that there is no rule of law which excludes the testimony of an accomplice, or prevents you from giving credence to it, when it has been corroborated in material particu- lars. Indeed, gentlemen, I have not been able to perceive from the ar- gument of counsel that the truth of the material portions of their testi- mony has been seriously controverted. " It is not necessary that I should state in detail the evidence pro- duced. I do not propose to do so. It is sufficient to refer to its gen- eral purport. It is not denied, and will not be denied, that the evidence tends to establish that Harpending obtained from the president of the so-(!alled Confederate States a letter of marque — a commission to cruise in their service on the high seas, in a private armed vessel, and commit hos- tilities against the citizens, vessels, and j^roperty of the United States ; tliat liis ('()-(lcrcii(l;iiils and otlicrs onlcicd iiilo a (•(iiispiiacy wil li liiiu to purchase and lit out. and aim a vessel, au.l ernise under Ihe sai jury iiiat iftliey were satisfied that it was the ordinary and i)lain duty of the pris- oner to cause tlie air-headinj.; to he made in the mine, and that a person using reasonahle diligence would liave had it done, and tiiat l)y tlie omis- sion the death of the deceased occurred, they should tind the i)risoner guilty. — (liegina vs. Karmes, 2 Carrington i^ l\irwin, ;!(iH.) in these eases you will perceive that the omission which resulted fatally was of a l)lain personal duty, and that the accident was the inuncdialc and direct (•onsequence of the omission. " Now, in the c.ise of a person falling overhoard from a .ship at sea, wliether passenger or seaman, when he is not killed hy the fall, there is no question as to the duty of the commander. He is hound, both by law and by contract, to do everything, consistent with the safety of tlie ship and of the pa.ssengers and crew, necessary to rescue the person overboard, and lor that purpose to stop the vessel, lower the boats, and throw to him such buoys or other articles which can be readily obtained, that may serve to support him in the water until he is reached by the boats and saved. No matter what delay in the voyage may be occasioned, or what expense to the owners may be incurred, nothing will excuse the com- mander for any omi.ssiou to take these steps to save the person overboard, provided they can be taken with a due regard to the safety of the ship and others remaining on board. Subject to this condition, every person at sea, whether passenger or seaman, has a right to all reasonable efforts of the commander of the vessel for his rescue in case he .should by acci- dent tall or be thrown overboard. Any neglect to make such efforts would be criminal, and if followed by the loss of the person overboard, when by them he might have been s.ived, the commander would be guilty of manslaughter, and might be indicted and punished for that offence. " In the present case it is nat pretended that any efforts were made by the defendant to save Swainson, nor is the .law as to the duty of tlie com- mander, and his liability for omitting to perform it under the conditions stated, controverted by counsel. The positions taken in the defence of lheaccu.sed are: 1. That Swainson was killed by his fall from the yard; 'J. That if not killed it would have been impossible to save him in the existing condition of the sea and weather ; 3. That to have attempted to save him would have endangered the safety of the ship and the lives of the crew. If, in your judgment, either of these positions is sustained by the evidence, the defendant is entitled to an acquittal. " The killing of Swainson fr^m his tall is alleged from tlie distance he must have lallen, and the absence of any appearance of subsequent mo- tion on his part in the water. The distance was one hundred and ten feet, as stated by one of the witnesses from actual measurement. An- other witness says that Swain.son .struck tlie water on his back or front : 21 808 a third witnoss states that the feet of Swainson struck the water first, hut the ])()sition of the body was somewhat inclined. From the noise made in falling the mate was of the opinion that Swainson struck the channels on the side of the vessel in his fall. You can judge of the prob- abilities of the man being alive after a fall of this kind. If you believe from the evidence that he was killed by the fall, that is an end of this case, and you need not pursue your inquiries further. But more, if you have any reasonable doubt, by which I mean a doubt founded upon a consideration of all the circumstances and evidence, and not a doubt rest- ing upon mere conjectnre or speculation, whether he was killed by the lall, you need not go further. The prosecution proceeds upon the ground that he was not thus killed, the district attorney relying upon the general presumption of the law that a man known to be alive at a particular time continues alive until his death is proved, or some event is shown to have happened to him which usually, in the experience of men. proves fatal. Tlie fall of a person into the sea from a height of one hundred and ten feet is not an event which is necessarily fatal. Nor can it be said that in the experience of men it is usually so. Its effect depends very much, if not entirely, upon the manner in which the party falling strikes the water, and the existence of obstacles breaking the force of the fall. The fact, therefore, that the fall of Swainson appears in the evidence pre- sented by the prosecution, does not change the presumption of the law which I have mentioned. The burden still remains upon the defendant of showing that the fall was fatal, or of showing such attending circum- stances as to create a reasonable doubt whether such was not the foct. You will not take the fall itself as conclusive on this point, but will con- sider it in connection with the evidence of the manner in which the party fell, and particularly of the manner in which he struck the water in falling. "If you are satisfied that the fall was not immediately fatal, the next inquiry will be whether Swainson could have been saved by any reason- able efforts of the captain, in the then condition of the sea and weather. That the wind was high there .can be no doubt. The vessel was going, at the time, at the rate of twelve knots an hour; it had averaged for sev- eral hours ten knots an hour. A wind capable of propelling a vessel at that speed would in a few hours create a strong sea. To stop the ship, change its course, go back to the position where the seaman fell over- board, and lower the boats, would have required a good deal of time, ac- cording to the testimony of several witnesses. In the meanwhile, the man overboard must have drifted a good way from the spot where he fell. To these considerations you will add the probable shock and consequent exhaustion which Swainson nrust have experienced from tlie iall, even supposing that he Avas not immediately killed. " It is not sufficient for you to believe that possibly he might have been saved. To find the defendant guilty you must come to the conclusion that he would, beyond a reasonable doubt, have bet>n saved if proper efforts to .save him had hern soasouably made, and tlial liis dcalli was the con- sequence orihe del'enthint'.s negligence in tliis icspccl. r,rsi(hs Ihc (on- dition of the weather and sea, you must also lake into consich ration (lie character of the boats attached to tlie sliiii. Accordin^i to tlie testimony of the mate tliey were small and untit I'or a rough sea. " During the trial much evidence was offered as to tlu'. character of tlu> defendant as a skillful and able officer and as u humane man. The act charged is one of gross inhumanity ; it is that of allowing a sailor falling overboard wliilst at work upon the shi]), to perish, without an eftbrt to save him, when by proper eftbrts, promptly made, he could have been saved. If there be any doubt as to the conduct of the defendant, his past life and character sliould have some consideration with you. " With these views I leave the case with you. It is one of much inter- est, but I do not think that, under the instructions given, you will have any difficulty in arriving at a just conchisiou."— (4 Sawyer, 518-2:5.) Tlie jmy returned a verdict ol' acquittal. XTnited States vs. Smiley. Tliis was another case wliicli excited much interest at the time. It arose as follows : Tlie steamer Golden Gate left San Francisco for Panama on the 21st^ July, 1862, with two hundred and forty-two passengers and a crew of ninety-six persons. At about five o'clock on the after- noon of Sunday, July 27th, while running within three and a half miles of the Mexican coast, she was dis- covered to be on fire. An examination disclosed that the fire had originated between one of the galleys and the smoke-stack, and it soon became tipparent that it was impossible to save her. She was then immediately headed for the shore, and half an hour later struck on a shelving beach of sand about two hundred and fifty feet from the shore, at a point fifteen miles north of the port of Manzanillo. The surf, which was breaking heavily, soon swung her stern around so that she lay nearly paral- lel with the beach when she went to pieces. At eight o'clock of that evening all that remained visible were her engines, boilers, and wheel frames. Gf the three hundred and thirty-eight souls on board only one hundred and forty were saved. The treasure which she carried, aniount- ii)o- to one million four hundred and fifty thousand d It's 310 was sunk about forty feet inside of tlie wreck, where in a space of sixty feet square upwards of one million two hun- dred thousand dollars were subsequently recovered. Soon after the loss of the steamer was known, a vessel was fitted out l)y the undei-writers to proceed to the scene of disaster and recover whatever was possible of the treasure. The parties employed soon returned and abandoned tlie idea of finding it. Immediately another vessel, the " Active," was sent by a party of capitalists, on the same errand, but she returned likewise unsuccessful. In December, 1862, another party of capitalists started anothor vessel, the schooner " William Ireland," fitted with pumps and wrecking appliances and accompanied by sub-marine divers, under the command of Ireland, one of the projectors of the enterprise. The men in this expe- dition succeeded in recovering |S00,000. In August, 1863, they again returned to the wreck and were successful in recovering seventy-six thousand dollars more, when it was believed that any further efi'orts to secure any additional amount would be unsuccessful. Afterwards, in Septem- ber, 1863, Thomas Smiley and others fitted out another expedition with a party of divers and a more complete equipment of diving and wu-ecking apparatus, and returned in January following, having succeeded in recovering $303,000. On a second trip they found thirty-three thou- sand more ; and with this voyage all eftbrts in that direc- tion were closed. The treasure recovered by Smiley and others, was carried in wooden boxes, each containing from |500 to $44,000, and was stowed in a room near the stern of the ship. The locality where the greater part was found was about one hundred and fifty feet from the shore of Mexico and in from six to nine feet of water. Beneath the water was an equal depth of sand under which was a hard clay stratum. On this hard pan beneath the water and the sand the treasure boxes lay. Before commencing his operations. Smiley had obtained from the Mexican government fi license to explore for the treasure lost. On liis return to San Franeiseo, elaini was made liv shippers for the speeie I'eeovered, hut it was not «;iven u]), as the parties eouhl not agree as to tlie amount wliieh the reeovering company should retain as compensation for the recovery. The result was that ii complaint was made against Smiley and others of his com- pany, and in March, 1864, they Avere indicted in the Cir- cuit Coui't of the Uiiited States for plundering and stealing the treasure from tlie (Jolden (Jafe, under the ninth section of tlie act of C'ongi'ess of March 3d, 1825, which pi'ovides: "That, if any person or persons shall plunder, steal, or destroy any money, goods, merchandise, or other effects, from or belonging to any ship, or vessel, or boat, or raft, which shall be in distress, or which shall be wrecked, lost, stranded, or cast away upon the sea, or upon any reef, shoal, bank, or rocks of tlie sea, or in any other place within the admiralty and maritime jurisdiction of the United States," [he] " shall be deemed guilty of felony, and shall, on conviction thereof, be punished l)y tine, not exceeding five thousand dollars, and imprison- ment and confinement to hard labor not exceeding ten years, according to the aggravation of the offence," * To the indictment a demurrer was interposed on various technical grounds. As the expedition conducted by Smiley was an o[»en one, after all other elibrts for the recov- ery of the treasure had been abandoned, and Smiley was a man of previously g(x)d character and standing in the community, the indictment was generall}' regarded as })er- secution — as an attempt to coerce the treasure from him without allowing proper compensation to him and his as- sociates for its recovery. The counsel engaged in the ctuse appeared to recognize this. It was, therefore, agreed that the facts stated above should be deemed admitted, and that upon them the following questions should be presented to the Court for determination: 1st, Whether the act of Congress applied to a case where the taking of the prop- * 4 Stat, at Large, p. 116. :]12 erty, of wLicli larceny was alleged, was after the vessel had gone to pieces and disappeared; and, 2d, Whether, if the act covered such a case, the Circuit Court had juris- diction to try the offence charged, it having been com- mitted within a marine league of the shore of Mexico; with a stipulation that if the Court should be of opinion that the act did not apply to the case, or that it had not jurisdiction to try the otFence charged, the demurrer should . be sustained. Upon this stipulation the questions were argued. In disposing of them tlie Court said, speaking through Judge Field: " We iire not prepared to decide tliat the statute does not apply to a case where the vessel has gone to pieces, to which the goods belonged of which larceny is alleged. It would fail of one of its objects if it did not extend to goods, which the officers and men of a stranded or wrecked ves- sel had succeeded in getting ashore, so long as a claim is made by them to the property, though before its removal the vessel may have been broken up. We are inclined to the conclusion that, until the goods are removed from the place where landed, or thrown ashore, from the stranded or wrecked vessel, or cease to be under the charge of the officers or other parties interested, the act would apply if a larceny of them were committed, even though the vessel may in the meantime have gone entirely to pieces and disappeared from the sea. But in this case the treasure taken had ceased to be under the charge of the officers of the ' Golden Gate,' or of its underwriters, when the expedition of Smiley was fitted out, and all efforts to recover the property had been given up by them. The treas- ure was then in the situation of derelict or abandoned property, which could be acquired by any one who might have the energy and euterprise to seek its recovery. In our judgment the act was no more intended to reach cases where property thus abandoned is recovered, than it does to reach property voluntarily thrown into the sea, and afterwards fished from its depths, " But if the act covered a case where the property was recovered after its abandonment by the officers of the vessel and others interested in it, we are clear that the Circuit Court has not jurisdiction of the offiince here charged. The treasure recovered was buried in the sand several feet under the water, and was within one hundred and fifty feet from the shore of Mexico. The jurisdiction of that country over all offences com- mitted within a marine league of its shore, not on a vessel of another nation, was complete and exclusive. " Wheaton, in his treatise on International Law, after observing that ' the maritime territory of every Rtate extends to the ports, harbors, bays, and mouths of rivers and adjacent parts of the sea inclosed by headlands. bolon^iiig to the same State,' says: ' Tlie jiciieral UKage of nations siilKMiidds to this extent of territorial jurisdicl ion a distance of a marine ieajiue, or as far as a caTinon-shot will reach from the, shore, along all the coasts of the State. Within these limits its rights of juoijerty and terri- torial jurisdiction are absolute, and exchuh; those of every other nation.' —(Part 2, Chap. 4, Section 6.) "Thecriminal jurisdiction of the government oftlie I'niled States — that is, its jurisdiction to try parties for offences committed against its laws- may in some instances extend to its citizens everywhere. Thus, it may ])unish for violation of treaty stipulations by its citizens abroad — for of- fences committed in foreign countries where, by treaty, jurisdiction is conceded for that purpose, as in some cases in China and in the Kar- bary States ; it may provide for offences committed on deserted islands, and on an uninhabited coast, by the officers and seamen of vessels sailing lUKhM- its flag. It may also punish derelictions of duty by its ministers, consuls, and other representatives abroad. But in all such cases it will be found that the law of Congress indicates clearly the ex-territorial character of the act at which punishment is aimed. Except in cases like these, the criminal jurisdiction of the United States is necessarily limited to their own t ('rritory, actual or constructive. Their actual territory is co-extensive with tiieir possessions, including a marine league from their shores into the sea. "This limitation of a marine blague was adopted becau.se it was for- merly supposed that a cannon-shot would only reach to that extent. It is essential that the absolute domain of a country should extend into the sea so far as necessary for the protection of its inhabitants against injury from combating belligerents while the country itself is neutral. Since the great improvement of modern times in ordnance, the distance of a marine league, which is a little short of three English miles, may, per- iiaps, have to be extended so as to eijual the reach of the projecting power of modern artillery. The constructive territory of the United States em- braces vessels sailing under their flag; wherever they go they carry the laws of their country, and for a violation of them their officers and men may be subjected to puni.shment. But when a vessel is destroyed and goes to the bottom, the jurisdiction of the country over it necessarily ends as much so as it would over an island which should sink into the sea. " In this case it appears that the 'Golden Gate' was broken up ; not a vestige of the vessel remained. Whatever was afterwards done with ref- erence to property once on board of her, which had disappeared under tile sea, was done out of the jurisdiction of the United States as com- ]>lptely as though the steamer had never existed. " We are of opinion, therefore, that the Circuit Court has no jurisdic- tion to try the offence charged, even if, under the facts admitted by the parties, any offence was committed. According to the stipulation, judg- ment sustaining the demurrer will be, therefore, entered and the de- fendants discharged." 814 EX'PARTE CavANAUGH ON HaBEAS CoRPUS. In this case the petitioner^ James C. Cavanangh, was brought before the Circuit Court, in the summer of 1864, on a writ of habeas corpus^ alleging in his petition the un- lawful restraint of his lil^erty by an officer claiming to be a deputy marshal of the Consular Court at Nagasaki, in Japan, and pra^dng for his discharge. It appeared that the petitioner had been convicted in that Court, in Sep- tember of the previous year,— the consul sitting with four assessors,— of the crime of manslaughter in an aggravated degree, and sentenced to five years' imprisonment, at hard labor, in the jail at that port, and that the sentence had been approved by the resident minister in Japan. Upon the request of the petitioner, his sentence was changed to confinement in the State prison of California, there being no provision made by Congress for a jail at the port of N^agasaki. He was accordingly brought to San Francisco, and there he applied for his discharge. Two points were made before the Court: 1st. That the legislation of Congress carrying out the provisions of the treaty with Japan, by which the Consular Court was au- thorized to try citizens of the United States charged with the commission of crimes in that empire, was unconstitu- tional; and, 2d, if constitutional, that there was no pro- vision of law authorizing the confinement of prisoners, sentenced by that Court, in the penitentiary of California, or their detention by the marshal of the United States for that district. The Court held that the legislation of Congress was con- stitutional, but discharged the prisoner on the second ground. Its opinion has not been reported. It placed the validity of the legislation upon the treaty clause of the Constitu- tion, holding that that clause authorized treaties upon all subjects of foreign commerce and for the protection of persons engaged in it, and, if necessary, to prevent citizens of the United States, charged with offences, from being ^15 sulijcctcd to (he (MMK'I and l)arlt:inMis |>uiiisliineiit of Asiatic and otluTllian Christian conntrii'S, the treaties mi-;lit stip- nlate lor a special tribunal for their triah It lollowed suhstanlially the reasons contained in the letter to Mr. Calhoun, then Secretary of State, (»f Septend.cr, 1S44, by Mr. Caleh Cushini!,-, the minister who made our treaty with China, under wliieli C(»ni;-ress passed (he law author- izing;- similar Consular Courts in that empire. IIaudv vs. IIaubix. This case was before the Court in July, 18(1'). It was a suit in equity to charg-e the defendants- — as trustees of cer- tain real property, situated in Yolo County, C-alifornia — and to compel a transfer of the title to the complainaids, and arose out of facts of a very unusual character. They were brieily these: (Tne John Hardy was a native of Canada, and in 1824 Avas married in that province. Three children wei'e the issue of this marriage, two of whom, Alexander and El- len, were living when the suit was l)rought. Alexander was born in Xew York, and during the civil war was a sol- dier in the United States Army. John Hardy's wife died in 183-, and soon afterwards he left Canada, and for one 01' two years was employed at dillerent places on the Mis- sissip[)i River. He then proceeded to Texas and thence to Mexico. There he l)ecame a Mexican citizen l)y natural- ization, and for a while was engaged in the military ser- vice of the country. In 1843 he went to California and tjiere assumed the name of Thomas Hardy, by which name, or that of Thomas M. Hardy, he was always known in that country. In October of that year he obtained from the government of the Department of California, in his assumed name of Thomas Hardy, a grant of land to the extent of six square leagues, in the present county of Yolo, In Octol)er, 1848, he died at Benicia, intestate, possessed of the real property thus granted to him, and also personal property of the value of several thousand dollai's. lu 316 March, 1850, tlie Prefect of the District of Sonoma, wliicli embraces Benicia, appointed one Stephen Cooper, of that phace, administrator of the estate, and issued letters of administration to him, and he took possession of the prop- erty. In 1851 the Prefect — his office having been abol- ished, and Probate Courts having been established in the several counties of the State — transferred the papers to the Probate Court of Solano County. By order of that Coui-t the real property was sold and the sale confirmed. In 1852 the claim of the purchasers of the land at that sale, and of parties deriving title from them, was presented for confirmation to the Board of Land Commissioners, created by act of Congress of March 3d, 1851, for the settlement of private land claims in California derived from Mexico. This claim was confirmed by the Board and afterwards by the United States District Court, and in July, 1858, a pat- ent of the United States was issued to the claimants. During all this time the two surviving cliildren of John Hardy liad lieard nothing of their father cxce}it l)y a letter iVom him dated at Monterey, in Caliiornia, in 1817 or 1848. But sometime about 1860, rumors reached them — one, the daughter, being in Canada, and the other, the son, being in 'New York — that their father had resided in Cal- ifornia, acquired large property there, and had died intes- tate, and that others were claiming the property. Inquiries set on foot by them satisfied them of the truth of the ru- mors and this suit was finally In'ought bj^ them to recover the property. The facts here narrated were set forth in their bill of complaint, to which tlie defendants demurred on the al- leged ground of want of equity, and that the claim of the complainants was a stale one, and barred by the statute of limitations of the State. The Court overruled, the de- murrer and required the defendants to answer the bill. In deciding the case Judge Field said, as follows: " The ground upon which the bill proceeds is that the defendants have obtained the legal title to property, of which the father of the complain- ants died possessed, and which the complainants inherited ; that the de- 317 I'fiuiuiit.s look the li'gal title with uoticu of tlio iiivali(.lit.>- .oi' tlie means ))y which it was obtaiued, and should, therefore, upon obvious principles of justice, be required to give it up to the true owners. The bill is filed for the purpose of having a trust declared and enforced, the complainants relying- upon the established doctrine that whenever proi>erty is acquired by fraud, or under such circumstances as to render it ineciuitable for the holder of the legal title to retain it, a Court of Equity will convert him into a trustee of the party actually entitled to its beneficial enjoyment. And the bill presents a clear case for the application of this doctrine. The Prefect of Sonoma had no jurisdiction over the estate of the de- ceased, nor any authority to appoint an administrator. Prefects were executive officers of the government. It was their duty to maintain pub- lic order and tranquillity, to publish and enforce the laws, and to exer- cise a general supervision over the subordinate officers and the public in- terests of their districts. They were empowered to impose small tines in the enforcement of their authority, and to hear complaints against inferior otiicers of the district, but bcyoud this extent they were not clothed Avith any judicial functions. "Nor did the Probate Court of Solano County acquire any jurisdiction over the estate of the deceased after the transfer of the papers from the I'refect. The statute of California for the settlement of the estates of deceased persons has no application to the estates of parties who died previous to the organization of the State government. This was ex- pressly held by the Supreme Court of California in Grimes' Estate vs. Norris, with reference to the probate of a will executed in 1848 (6 Cal., 621) ; and the ruling in this respect was affirmed by the same Court in the subsequent case of Tevis vs. Pitcher. — (10 Cal., 465.) The act which provides for the probate of wills also regulates the manner in which the estates of parties dying intestate shall be closed, and is equally limited in its application to cases arising subsequent to the adoption of the con- stitution. It was obviously the intention of the Legislature to leave all estates of decedents who died previously to be settled under the law as it then existed ; and such is the ruling in a recent case of the Supreme Court of the State. — (Downer vs. Smith, 24 Cal., 114.) " It was, therefore, under color of legal proceedings, every step of which Avas a nullity, that the conveyance of the alleged administrator was exe- cuted. That conveyance enabled the purchasers, and parties holding un- der them, to present the grant made to Hardy by the Mexican govern- ment to the Board of Land Commissioners, and to obtain a confirmation of the claim asserted by them to the land it embraces, and ultimately the patent of the United States. Thus, by means of an instrument purport- ing to transfer the interest of which Hardy died i>ossessed, but in fact transferring nothing, they obtained a standing before the federal- tribu- nals, and have secured to themselves the legal title from the government of the United States. It is the possession of this legal title, as shown by the confirmation and patent, which precludes the complainants, who •318 are the sole surviving heirs of the deceased, iVom instituting or maintain- iug ejectment for the premises, and forces them to seek relief from a Court of Equity. And it is upon the confirmation and patent that the defendants rely to resist the claim of the complainants. Their position is that the confirmation enured to the benefit of the confirmees, and that the patent is conclusive evidence of the validity of their title ; that it is the record of the government upon it, which cannot be questioned ex- cept in direct proceedings instituted in the name of the government or by its authority. " It is undoubtedly true that the confirmation enured to the benefit of the confirmees, so far as the legal title to the premises was concerned. It established the legal title in them, but it determined nothing as to the equitable relations between them and third parties. The object of the government in the passage of the act of March 3d, 1851, was to separate the public lands from those which were private property, and to discharge its treaty obligations by protecting private claims. The only question in which the government was concerned, and which demanded its con- sideration, was what interests in land had the former sovereignty parted with, not what had transpired between private parties subsequent to the action of that sovereignty. And in conformity with this view is the lan- guage of the Supreme Court of the United States in Castro vs. Hendricks. — (23 How., 412.) After stating that to accomplish the purposes of the act of March 3, 1851, every person claiming lands in California by virtue of any title or right derived from the Spanish or Mexican governments, was required to present the same to a Board of Commissioners, the Court said : ' The mesne conveyances were also required, but not for any aim of submitting their operation and validity to the Board, but simply to enable the Board to determine if there was a bona fide clahnaut before it under a Mexican grant; and so this Court have repeatedlj' determined that the government had no interest in the contests between persons claiming ex post facto the grant.' And the Supreme Court of California, whilst de- claring that the confirmation enured to the benefit of the confirmee, has in frequent instances qualified the declaration by stating that equities between the confirmees and third parties remained unaffected. Thus, in Estrada vs. Murphy (19 Cal., 272), the Court said : ' If the confirmee, in presenting his claim, acted as agent, or trustee, or guardian, or in any other fiduciary capacity, a Court of Equity, ujion a proi^er proceeding, will compel a transfer of the legal title to the principal, cestui que trust, ward, or other party equitably entitled to the same, or subject it to the proper trusts in the confirmee's hands. It matters not whether the pre- sentation was made by the confirmee in his own name in good faith, or with intent to defraud the actual owner of the claim, a Court of Equity will control the legal title in his hands so as to protect the just rights of others.' " The patent is undoubtedly a record of the government upon the title of the claimant. Before it is issued numerous proceedings are required 810 to be tiikcii hcfoiv tlic trihiuials and olliccrs of the United Stales, liaving tor tlieir object the ascertainment of the validity of tlie c(iuitM- ble and to legal remedies. It is directed to the subject-matter, and not to the form of the action or the tribunal before which it is jirosecuted. Such is the language of the Supreme Court, the only authoritative inter- preter of the laws of the State. — (Lord vs. Morris, 18 Cal., 486.) " The question then is, whether the statute barred the relief jiraycd, and not whether, as insisted by counsel, the claim on general principles adopted in the administration of equity is a stale claim, although we may add on this latter head that the claim has upon such principles no feature that should bar its enforcement on that ground. The statute provides that certain actions shall be brought within three years after the cause of action shall have accrued, but declares that in action for re- lief on the ground of fraud, the cause of action 'shall not be deemed to have accrued until tlie di.scovery by the aggrieved party of the facts con- stituting the fraud.' This exception covers the case at bar. The pat- entees secured to themselves the legal title by the presentation to the Board of Land Commissioners of a worthless document as a transfer of the grantee's interest, and they prosecuted a claim under this document for years. By these proceedings a fraud was committed upon the heirs of Hardy, and not until its discovery did the statute commence running against their rights. The bill avers such discovery within the years pre- scribed. And the defendants who took title under the patentees are charge- able with notice of the character of the claim under which the patentees secured the title, and, consequently, are precluded from protection as in- nocent purchasers. They are, therefore, chargeable with constructive fraud in taking title from the patentees, however ignorant in fact of the rights of the heirs, and however honest in their intentions they may have been. 'Another class of constructive frauds,' says Mr. Justice Story, after enumerating several clas.ses, ' consists of those where a person jjurchases with full notice of the legal or equitable title of other persons to the same property. In such cases he will not be permitted to protect him- .self against such claims; but his own title will be postponed and made subservient to theirs.' " This case is reported in 4th Sawyer, .53(J. Its doctrine was afhrnted in Norton vs. Meader, Fhid., 604. Hall vs. LTnger. California passed under tlie jurisdiction of the United States on the 7th of July, 184G; at least at that date the forces of the United States took possession of Monterey^ tlie Capital of the Department, and from it the authority of MoxiciUi oiiicials over the conntiy is rcicardod l\y the [>olitical (iepartment of the o-overninent, as liaviiig ceased. In that respect the judiciary follows the action of the politi- cal department. — (United States vs. Yorba, 1 Wall., 423.) At that time there was a Mexican pueblo at the site of the present city of San Francisco. This term, " pueblo," has all the vagueness of signification of the English word '' town," and is applied indiscriminately to a mere collec- tion of individuals residing at a particular place, a settle- ment, a village, and also to a regularly organized munici- pality. The pueblo at San Francisco, was a small settle- ment, though it was of sufficient importance, as early as 1835, to have a Council [Ayuntamiento] , composed of alcaldes and other officers, for its government. When our forces took possession of the town, citizens of the United States were appointed, by the military and naval commanders, to act as alcaldes in place of the Mexican of- ficers. Under the laws of Mexico, a pueblo — or town — when once recognized as such by public authority, became en- titled to the use of four square leagues of land, end)racing its site and adjoining country. San Francisco, as a pueblo, asserted a claim to such lands. The Mexican alcaldes were authorized to distribute these lands in small tracts to the inliabitants of the town for building, cultivation, or other uses, the remainder being reserved for commons or other public purposes. Tlie American alcaldes, appointed by our military or naval commanders, at once asserted a right ■ to exercise this power of distribution, and as a consequence they had numerous applications for grants, some of which were from officers of the army and navy. In December, 1848, John Hail, a lieutenant in the navy, received from Alcalde Leavenworth a grant of a hundred- vara lot, that is, a lot two hundred and seventy-five feet square. Whatever title the city, or the State, or the United States may have possessed to the land, was aiterwards re- linquished by city, state, and congressional legislation. ITis title, tluM'cforo, if not so :it the tiiiio. sn1)s(Miii('iitly l>c'- caiiK' porfoct. In 1849 Hall became nn\v(;ll, and his health was so much affected that he was sent from California, to the Eastern States in the charge of a physician. He arrived in New York and Joined his family in dune, 1849, and remained with them until June, 1851. Durinii- this period tliere were such indications of insanity that, f>y the advice of his |»liysieian and consent of his family, he was sent to the asylum at Frankford. There ho. remained under treat- ment f )r insanity until January, 1854, when he was re- moved to the State insane asylum, where he died in Sep- tember, 1860. On the 27th of December, 1852, whilst he was in the asylum at Frardxford, he signed a power of attorney to one James W. Harris, empowering him to sell and convey the lot in San Francisco, and also to appoint a substitute to act for him. This power bore a certificate of due acknowl- edgment before a commissioner of California, resident in Pennsylvania. The attorney mentioned a})pointed one Havid B. Rising as his substitute, and he, as such sub- stituted attorney, executed a conveyance to parties who entered into possession of the premises. Against them the widow and heirs of the deceased Hall brought ejectment for the property, contending that, at the time the power of attorney purported to have been executed, Hall was in- sane, and incapable, by reason of liis insanity, of attend- ing to any business. The case was tried at the (^ctol)er term of ]8<)7, with a jury, whom Judge Field charged, as follows: " Gentlemen, I do not propose to attempt any nice or pliilosophical exposition of the subject of insanity. I sliould certainly fail if I made the attempt; and if I could succeed, the result wouhl not he of any ser- vice to you in determining this case. Any elaborate and extended dis- sertation, if it were possible for me to present such a one, would only tend to perplex and confuse your minds. I shall make a few plain ob- servations on this subject, and refer to the rules laid down by the au- thorities to guide you in- considering it, and then call your attention briefly to the evidence jn the ease. 324 "The physiciuns who have been examined, and the text-writers, declare that it is impossible to give any consistent detinition of insanity ; that no words can comprise the different forms and characters which this malady may assume. The most common forms, in which it presents itself, are those of mania, monomania, and dementia. All these imply a derangement of the faculties of the mind from their normal or natu- ral condition. Idiocy, which is usually classed under the general des- ignation of insanit}^ is more properly the absence of mind than the derangement of its faculties ; it is congenital, that is, existing at birth, and consists not in the loss or derangement of the mental powers, but in the destitution of powers never possessed. " Mania is that form of ii*sanity where the mental derangement is accompanied with more or less of excitement. Sometimes the excite- ment amounts to a fury. The individual in such cases is subject to hal- lucinations and illusions. He is impressed with the reality of events which have never occurred, and of things which do not exist, and acts more or less in conformity with his belief in these particulars. The mania may be general and affect all or most of the operations of the mind; or it may be partial, and be confined to particular subjects. In the latter case it is generally termed monomania. " Dementia is that form of insanity where the mental derangement is accompanied with a general enfeeblement of the faculties. It is charac- terized by forgetfulness, inability to follow any train of thought, and indifference to passing events. ' In dementia,' says Ray, a celebrated writer on medical jurisprudence, 'the mind is susceptible of only feeble and transitory impressions, and manifests but little reflection even upon these. They come and go without leaving any trace of their presence behind them. The attention is incapable of more than a momentary effort, one idea succeeding another with but little connection or cohe- rence. The mind has lost the power of comparison, and abstract ideas are utterly beyond its grasp. The memory is peculiarly weak ; events the most recent and most nearly connected with the individual being rapidly forgotten. The language of the demented is not only incohe- rent, but they are much inclined to repeat isolated words and phrases without the slightest meaning.' " These common forms of insanity — mania, monomania, and dementia — present themselves in an infinite variety of ways, seldom exhibiting themselves in any two cases exactly in the same manner. Mania some- times affects, as already observed, all the operations of the mind ; and sometimes the mental derangement appears to be limited to particular subjects. An absence of reason on one matter, indeed on many matters, may exist, and at the same time the patient may exhibit a high degree of intelligence and wisdom on other matters. The books are full of such cases. Many of them have been cited to you by counsel on the argu- ment. They show, indeed, a want of entire soundness of mind ; they show partial insanity, but this does not necessarily unfit the individuals afrcctcd I'or tlic trans ictiou ol' Imsincss on all snlijccts. in a case which arose in tlic PriTo.iiativc Conrt ol" laitiland (Dew vs. Clark, :> Aiklams Va-v\. K., 7!)i. it was Slid hy connsfl that iiaitial insanity was soniothinf? unknown to tin- Liw of En,ij,laiul. To this suirucstion tlie Conrt r(>j)lied: ' If he mraut, by this tliat the law of iaiiiland never deems a jjorson both sane and insane at the same time upon one and the sanu'^ snbjeet, the assertion is a mere truism. But if by tluit position lie meant and in- tended that the law of England never deems a party both sane and in-iane at dififereiit times on the same subject, and both sane and insane at the same time on diiYerent subj-.-ets, tliere can seareely be a i)osition nujre destitute of legal foundation, or ratlier tiiere can seareely be one more adverse to the current of legal autliority.' In that case the Conrt cited the language of Locke, that 'anian who is very sober and of a right understanding in all other things, may, in one particulai', be as frantic as any man in Bedlam ;' and of Lord Hale, who says, ' There is a partial in.sanity of mind and a total insanity ; iu the first, as it respects particular things or persons, or in respect of degrees, which is the condi- tion with very many, especially melancholy persons, who for the most part discover their defect in excessive fears and grief, and yet are not wholly destitute of the use of reason.' "So. too. in dementia, where there is a general enfei'blement of the mental powers, there is not usually equal weakness exhibited on all .sub- jects, nor in all the faculties. Those matters which, previous to the exist- ence of the malady, the patient frequently thought of and turned over in his mind, are generally retained with greater clearness than less fam- iliar objects. One faculty may be greatly impaired — the memory, for ex- ample — while other faculties retain some portion of their original vigor. The disea-se is of all degrees from .slight weakness to absolute lo.ss of rea- son. The enfeeblement usually progresses gradually — through a twilight, as it were, of reason, before the darkness of night settles upon the mind. •■ It is important to bear these observations in mind, for it does not fol- low from the fact that mania or dementia be shown, that there may not be reason or capacity for business on some subjects. In determining the ability of the alleged insane person to execute any particular act, the in- (|uiry should first be, what "degree of mental capacity is essential to the ])roper execution of the act in question ; and then whether such capacity was possessed at the time by the party. It is e\ident that a very differ- ent degree of capacity is required for the execution of a complicated con- tract, and a single transaction of a simple character, like the purchase or sale of a lot. '■ The act done in the case at bar was the execution of a power of attor- ney to sell three lots in San Francisco. The act required no greater exerci.se of reason than is essential to the valid execution of a will of real property ; and the authorities which determine the degree <»f capacity essential in such cases may properly be relied upon as furnishing the proper rule in this ca.se. And those authorities con- 32G cur, especially the later authorities, substantially in this: that it is only necessary to the validity of the will that the testator had sufiii- cient mind and memory to understand the business upon which he was engaged, and the eifeef of the act he was doing. ' He must,' in the lan- guage of Judge Washington, in Harrison vs. Kowau (3 Wash. Cir. Ct., 585), ' have a sound and disposing mind and memory. In other words, he ought to be capable of making his will, with an understanding of the nature of the business in which he is engaged — a recollection of the prop- erty he means to dispose of— of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the ele- ments of which it is composed — th'e distribution of his property in its simple forms. It is the business of the testator to dictate the purposes of his mind, and of the scrivener to express them in legal form.' " It is true, as stated by counsel, that the authorities generally go to the extent that it requires less intelligence and reason to make a will than to execute a contract ; but for the execution of an act of a simple character, not involving complicated details, and provisions, the rule laid down by Judge Washington is sutficiently stringent. "According to that rule, it was material to the valid execution of the power in this case, that Hall should at the time have possessed sufficient mind and memory to understand the nature of the business he was en- gaged in, to know the character and location of the property, and the ob- ject and effect of the act he was doing ; in other words, it was essential that he should recollect that he was the owner of the property mentioned ; that such ijroperty was situated in the city of San Francisco, and that the instrument conferred authority for the sale of the same. " In considering this case, it is to be remembered that the law presumes that every adult man is sane, and possessed of the absolute right to sell and dispose of his property in whatever way he may choose — his will in every case standing as the reason of his conduct. Whoever denies his sanity must establish the position ; the burden of proof rests upon the party who alleges the mental derangement. And if, as in the present case, the validity of a particular act is assailed, the assailant must estab- lish that at the time the act was done the insanity existed. Testimony as to previous or subsequent insanity will not answer, unless the insanity be shown to be habitual — that is, such as is in its nature continuous and chronic. The fact of the existence of a prior or subsequent lunacy, ex- cept where it is habitual, does not suffice to change the burden of proof. The case is, however, otherwise when such habitual insanity is shown to have existed — then the presumption is that the party was insane at the time and the burden of proof rests with those who allege the party's competency. " Again, in considering whether a particular act assailed for the alleged insanity of thn tho point, to all tlic atlonding circunistancos— tin; roasouablent'ss of the act in itselt", and its approval li.v the linuil.v and relatives of the party. The reasonableness of the aet, and tlie ajipiova! of the family and relatives will not render the act valid, if the party were at the time insane, but they are circumstances tendin exists until death is shown, it is diflicuK to perceive why it should not continue, when death is not shown, until the i.criod is reached at which the law lias tixcd as the eonunencenient of a dillerent presumption. Clearly there is no rule or principle which can limit its continuance at any luriod within the seven years, if it be admitted to exi.st at all. •■In the ease of Phene Trusts (Law Kep., 5, Chan. Appeals, 4:;eiiiianentl,v cslalilisiied. '■ It would lie dillicult to assign any other reason tlian this lor ihe pre- sumption, which obtains in some States, that a debt is paid, uikhi which no action has been hrongiit, alter tlie lapse of six years; and that it is unpaid up to the last hanr oi' the sixth year. The presiiniption of pay- ment arisin'g from the lapse ol'tinie without action, it might be said with i'(inal i)ropriety, as in the present case with respect to the presumption of life to the end of the seventh year, that if tlie presumption of non-pay- ment extends ii]) to the end of the sixth year, it renders absurd the whole basis upon which the presumption of paynu'Ut rests. So it would b(> diffi- cult to give any sufficient reason for admitting in evidence a deed thirty years old without other proof of its execution than what is aiiparent on its face, and at the same time relusiug admission to a deed except upon full proof of its execution, which has existed thirty years less one day — except that it is important that the period should be fixed on which the presumption arises which supersedes the necessity of direct proof. " But it is unnecessary to pursue the subject further. I am of oi)inion that the plaintiff" could rely, in the first instance, upon the presumption of law as to the continuance of life to establish the fact that John E. Mont- gomery was alive on the 1st day of December, 184G, when the grant of the Alcalde was issued. This leaves the plaintiff" with a prima facie case for reco\ eiy. " ^\■e turn now to the consideration of the aftirmative positions of the defetidants. They contend that the evidence in the case rebuts the pre- sumption of the continirance of life, and warrants the inference that the idleged grantee died previous to the lst4)f December, 1846, and that the action is barred by the statute of limitations. '■ It apx)ears from the evidence that about the middle of November, ls4H, a launch from the United States sloop-of-war Warren, a vessel then lying in the harbor of San Francisco, and, with the Portsmouth, under the command of Captain jSIontgomery, sailed from the harbor with ten seamen and two officers for Sutter's Fort on the Sacramento River. The two sons of Captain Montgomery w'ere on the launch — ^William H. Montgomery, a midshipman and the Sailing Master on the sloop Warren, had command of it. John E. Montgomery, who was clerk of Captain Montgomery on lioard the Portsmouth, accompanied his brother. It was understood at the time on board the Warren that the launch was sent with money to pay troops of the United States. Sutter's Fort is distant from the harbor of San Francisco about 120 miles, and the voyage be- tween the two places is often macle in a single day. An ordinary voyage from San Francisco to the Fort and back would not occupy over four or ffve days. The launch in this case was propelled both by sails and by oars. From the time it sailed no intelligence has' ever been received of it, or of either of the officers, or of any of the men who accompanied it. 334 About ten days after its departure Capt. Montgomery became uneasy at its absence and sent out several boats in search of his sons and the men who sailed with them, and these boats were kept on the search for about two weeks, but no trace could be found of the launch or men. Of their fate, absolute ignorance has existed to this day, now nearly a quarter of a century since their disappearance. Captain Montgomery himself left the port of San Francisco with the Portsmouth on the 5th or 6th of De- cember following. " Now it appears to me that there are only two inferences which can 1)6 driiwn Irom these facts, when considered with reference to the diarac- ter and positions of the men and officers: One is, that they died during the period within which they should have returned to San Francisco ; the other is that they deserted from the service. The latter inference cannot be entertained for several reasons : First, de-sertion is the highest, and with cowardice, the basest of offences which can be committed by men in the naval service; it hiis never, it is believed, been charged upon a naval officer of the United States. It can never, therefore, be accepted as an explanation of any act of his, except upon the clearest proof Sec- ond, if the case had been one only of desertion, and not death, it is highly improbable that no intelligence should have been received of any of the men during the long period which has since elapsed. Besides, with re- spect to the sons of Captain Montgomery, the natural effect of relation- ship must have led them to break the silence of years, and to seek com- municatioji with their father. " The theory of desertion would require us to Ijelieve that officers and men conspired to commit the basest of crimes, besides larceny of the pub- lic funds in their custody, and that for nearly a quarter of a century they have not only kept to themselves the secret of their crime, but have so secluded themselves, twelve in number, from observation that no intelli- gence respecting any of them has reached the public. "If desertion cannot be received as a reasonable explanation of their conduct, then death must be inferred. Death is the only fact which rec- onciles their conduct with tlie presumption of innocence, and with the ordinary conduct which officers and men of the navy pirrsue while in the public service. It is the sole fiict which satisfactorily explains, according to the common experience and knowledge of men, which are proper grounds for judgment, the failure of the officers and men to return to San Francisco, and the absolute silence of the world since respecting them. " My mind is thus led irresistibly from the evidence to the conclusion, that the officers and crew on board the launch perished on the voyage to Sacramento, within a few days after their departure from San Francisco. They probably perished in the bay of San Pablo, or the bay of Suisun. If the accident which occasioned their death had occurred in the Sacra- mento Eiver, it is proI)Hble that some of the men would have succeeded, from the narrowness of the stream, in reaching the shore ; and probably some trace of the launch would have been discovered. "Findinjr, ;is I do, that John K. JMontgomery died hclorc (he 1st of Dt- oember, 184(i, the conclusion follows that the grant of Alcalde r.artlctt, intended for him, was inoperative to pass the title, " A grant to a person deceased is void. 'I'lie instrument must he issued to a person in being, or it will he as invalid as if made to a fictitious party. The position of the plaintilf 's counsel that, if tlie grantee were dead at the date of the grant, his heir-at-law took the title, is not tenable. The case of Landes vs, Brant,* cited in support of this position is an authority against it. In that case Clamorgan, the patentee, had died in 1814, and the itatenl issued in 1845. The Supreme Court said, that according to the common law the patent wasvoid lor want of agrantee, but that the defect Avas cured l)y the act of Congress of May 20th, 1836, declaring: ' That in all cases Avhere patents for public lands have been or may hereafter be issued, in ]>ursuance of any law of the United States to a person who had died, or who .shall hereafter die, before the date of such patent, the title to the land designated therein shall enure to and become vested in the heirs, de- visees, and assigns of such deceased patentee, as if the patent had issued to the deceased person during life.' This act, of course, has no applica- tion to grants issued by Alcaldes in the Pueblo of San Francisco, whose authority never extended to the alienation of any public lands, but only to lauds belonging to the pueblo." The Judge, also, in this case considered at letigtli the ettect of the statute of Hrnitations upon the riglit of the jilaiiitiff, and still more elaltoi'ately upon a subscMpient mo- tion for a new trial. The judgment entered was for the defendant. United States vs. Flint. — United States vs. Throckmor- ton.— United States vs. Carpentier. When California was acquired by the United States a very large portion of it, particularly that portion situated in the valleys, which was fitted for agricultural and graz- ing purposes, had been alienated by grants of the former government of ]\Iexico. It was the policy of that govern- ment to encourage the settlement of the country, and for that purpose land was readily granted to settlers, in large ([uantities, upon their application. 13y the treaty of cession with Mexico the United States stipulated for the protec- 10 How.. 3?:?. tion of ;ill riulits of property of ihc iiili:il>itaiits o1' tlic coded coniitry. To carry out this stipulation tlie act of Congress of March 3, 1851, to settle private huid claims in California was passed. The long and tedions proceedings which the holders of such grants were required hy it, and subsequent acts, to take, in order to secure a recognition of tlieii' claims and the patent of the United States, are set forth in the opinion af Judge Field which is given below. It occupied, in the majoi'ity of cases, several years of labor, accompanied in the meantime with anxiety and constant conflict witli intruders and squatters. AVhen such patents were finally issued, it was hoped and beheved that peace and (piiet were secured to the possessors in the enjoyment of the land patented, but this proved to be a delusion. The land plunderers immediatelj^ commenced making in- discriminate charges of fraud, pei'jury, and subornation of perjury against the patentees, and of bribery against all or most of the officers of the government, through whose agency the patentees' title had been examined and estab- lished. In some instances their clamors were of sufficient potency to obtain fVom the Attorney-General of the United States authority to use his name 'in proceedings l)y the government for the cancellation of the patents as having been fraudulently obtained. The most notable of these oases were those designated at the head o'" this chapter. They were heard in the Circuit Court by Judges Field, Sawyer, and Hoffman, in Felu'uary, 187(5. Elaborate opinions were given in them by Judges Field and Ilotl"- man, the former confining liiiuself especially to the case of the United States vs. Flint, and the latter to that of the United States vs. Carpentier. The following is the opinion of Judge Field : " The case of the United States vs. Flint is a suit in ecjuitj', tlie main object of which is to set aside and annul the decree of the District Court of the Southern District of California, contirniinii the claim of Teodocio Yorba to the Rancho Lonias de Santiago, situated in the county of Los Angeles, in this State, and to recall and cancel the patent issued tliereon by the United States. It is brought by the District Attorney lor Cali- Jbrnia. and ])iirports to be on behalf ol' the United States. " It appears, from the allt<;ati<>iis of tlu- l)ill. and tlir record to wliielt the bill refers, that, in Oetober, 1 8r)2, the eUiiinant— wlio has sine- il( - ceased — presented to the Board of Land Commis.sioners, created under the act of Conjiress of .March :M, 1851, to ascertain and setth> private hxnd claims iu California, a petition setting fortii his claim to the rancho in question, and stating that the same Avas granted to him in -Alay, 18-lfi, by the Governor of the Department; that the grant had been approved by the Departmental Assembly; that Juridical possession of the land had been delivered to him by competent authority, and its boundaries dc- lim>d, and that he was then, and had been previously in its ])eaceable oc- cupation. " With the petition, and as part thereof, the claimant i)resented coi)ies of the grant and act of juridical possession, accompanied 1)y a transla- tion of the same, and pra_yed that the grant be adjudged valid, and con- lirmed to him. The Board of Commissioners considered the claim thus presented, and took the depositions of several witnesses in support of it and in August, 1854, rendered a decree adjudging it to be valid, and di- recting its confirmation. In November, 1855, a petition was filed on be- half of the United States, in the District Court for the Southern District of California, for a review of the decision, alleging that the claim con- tirmed was invalid, and the decision of the Commissioners erroneous ; that the allegations of the claimant in his petition were unsupported by sufficient proof; and denying that he had any right or title to the land confirmed, or to any part of it. The claimant answered this petition, joining issue upon its allegations, and the Court took jurisdiction of the case, heard it anew, and, in December, 1856, rendered its decree, affirm- ing the decision of the Commissioners, and re-adjudged the claim to be valid. An appeal from this decree to the Supreme Court of the United States was allowed, but the Attorney-General, after some months' delib- eration, gave notice that the appeal would not be prosecuted, and there- upon the District Court, upon the consent of the District Attornev, va- cated the order allowing the appeal, and gave the claimant leave to pro- ceed upon its decree as a final decree in the case. A survey of the land was subsequently made under the direction of the Surveyor-General of the United States for California, and approved by that officer, and in Fi'b- ruary, 18G8, a patent was issued to the claimant. "It thus appears that, after a contest for nearh' sixteen years before officers and tribunals of the United States, the claimant obtained a pat- ent from the government — an instrument designed to give to its holder security atid protection in the enjoyment of the property covered by its terms. All the defendants acquired their interest in the land after the decree of confirmation, and two of them after the patent was issued. " Nineteen years after the final decree was thus rendered, and eight years after the patent was issued, the present bill was filed. And as grounds for setting aside and annulling the decree, and recalling and can- celling the patent, the District Attorney alleges, upon information and belief: 1st. Thiit tlio grant and aot of juridical possession were made subsequent to the acquisition of the country in 1846, and were fraudu- lently antedated, and that this appears on the face of the original papers on file in the Spanish archives in the custody of the Surveyor-General of the United States ; that the claimant fraudulently omitted to exhibit- a complete record of the proceedings and only presented extracts from them, and by this suppression the Law Agent of the United States was misled, the United States deprived of all opportunity to contest the con- firmation, and the Land Commission and Court were deceived into a confirmation of the claim ; and 2d. That previous to the issue of the alleged grant, and as early as 1840, the claimant had obtained from the Mexican nation a grant of eleven leagues, situated in the counties of Sacramento, San Joaquin, and Amador, Avhich was subsequently con- firmed by the Supreme Court of the United States ; that, by the laws of Mexico, a grant for more than eleven leagues could not be made to the same person, and that the claimant was, therefore, disqualified from re- ceiving any other grant, and that the existence of this prior grant was fraudulently concealed from the Law Agent of the United States, the Land Commission, and the District Court. "The District Attorney also alleges in the bill, upon information and belief, that the approved survey is not in conformity with the boundaries given in the diseno, or map accompanying the grant and the act of jurid- ical possession, but embraces a much greater quantity, and was made upon the fraudulent instigation and procurement of three of the defendants. The District Attorney therefore prays that, in case he fail to obtain the annulment of the decree, and the recall and cancellation of the patent, the boundaries of the tract confirmed may be re-established and fixed in accordance with the views stated by him as to the location intended by the grant and act of juridical possession. "The first inquiry, which naturally arises upon the perusal of this bill, is as to what jurisdiction this Court has to interfere with and review the determinations of th e Land Com mission and District Court upon the validity of claims to land derived from Mexican or Spanish authorities, and of the Land Department in approving the surveys of the claims confirmed. The questions submitted to the Commission and the District Court were not within the ordinary cognizance of a Court of Law, or a Court of Equity. They related to the obligations devolving upon our government from' the concessions of the former government to its inhabitants. How far these concessions should be respected and how far enforced were the matters to be considered ; and in their determination the tribunals were to be gov- erned by the stipulations of the treaty, the law of nations, the laws, usage, and customs of the former government, the principles of equity and the decisions of the Supreme Court, so far as they were applicable. " By the transfer of California from Mexico to the United States, the rights of private property of the inhabitants were not affected. They remained as under the former government. The jiublic pro])erty of Mex- ico and sovorcijiiif y over the countrv alone i)ass('(l to the I'niti'd Stales. This was in accordance with tlie rule of public law, which is recognized by all civilized nations, when territory is ceded by one State to another. The obligation, theretbre, to protect private rights of property devolved upon the United States without any formal declaration to that effect. But, in recognition of this obligation, Mexico obtained from the United States, in the treaty of cession, an exi)ress stipulation for such i)roteetion. And the term property, as apjilied to lands and as used in the treaty, comprehends every species of title, perfect or imperfect; 'it embraces,' says Chief Justice Marshall, 'those rights which are executory as well as those which are executed.' The United States, therefore, took California bound by the established principles of public law, and by express stipu- lation of the treaty, to protect all private rights of property of the in- lial)itants. The obligation rested for its fulfillment in the good faith of the government, and required legislative action. It could, therefore, only be discharged in such manner, and at such times and upon such condi- tions, as Congress might in its discretion direct. In its discharge, such action was required as would enable the inhabitants to assert and maintain their rights to their property in the Courts of the country as fully and abso- lutely as though their titles were derived directly from the United States. Where the titles w^ere imperfect, and such was the condition of nearly all the titles held in the country, further action, by way of confirmation or release from the new government, was essential. With respect to all such titles, and indeed, with respect to all matters dependent upon executory engagements of the government, the ordinary Courts of the United States, whether of Law or Equity, were entirely powerless ; they were without jurisdiction, and utterly incompetent to deal with them. " By the act of March 3d, 1851, the legislative department prescribed the mode in which the provisions of tlie treaty should be carried out, and the obligations of the government to the former inhabitants discharged, so far as their rights respected the territory acquired ; and thus provided the means of separating their property from the public domain. That act created a Commission of three persons, to he appointed by the President, by and with the advice and consent of the Senate, for the express pur- pose of ascertaining and settling private land claims in the State. It gave a secretary to the Commission, skilled in the Spanish and English languages, to act as interpreter and to keep a record of its proceedings. It provided an agent, learned in the law and skilled in those languages, to superintend the interests of the United States, and it was made his duty to attend the meetings of the Commissioners, to collect testimony on behalf the United States, and to be present on all occasions when the claimant, in any case, took depositions. To the Commission, every person claiming lands in California, by virtue of any right or title de- rived from the Spanish or Mexican government, was required, on pain of forfeiting his land, to prescTit his claim, together with the documentary evidence and t-estimony upon which he relied in its support. The Com- 2?> :M0 missioners while sitting as a board, and at their chambers, were author- ized to administer oaths and take depositions in any case pending before them. The testimony was to be reduced to writing, and recorded in books provided for that purpose. The Commissioners were obliged to hear every case and decide upon the validity of the claim, and, within thirty days after their decision, to certify the same, with the reasons on vrhich it was founded, to the District Attorney of the district. The act provided also for a review of the decision of the Commissioners, upon pe- tition of the claimant or the District Attorney, setting forth the grounds iipon which the validity or invalidity of the claim was asserted. To the petition an answer was required from the contestant, whether claimant or the United States. Subsequently, in August, 1852, the act was changed in this particular, and when a decision was rendered by the Commission- ers they were required to prepare two certified transcripts of their pro- ceedings and deci.sion, and of the papers and evidence upon which the same were founded — one of which was to be transmitted to the Attor- ney-General, and the other tiled with the clerk of the District Court, and this filiug operated as an appeal on behalf of the party against whom the decision was rendered. In case the decision was against the United States, the Attorney-General, within six months after receiving the tran- script, was required to cause a notice to be filed with the clerk that the appeal would be prosecuted, or it was to be regarded as dismissed. " Upon the review by the District Court upon the petition or appeal, not merely the evidence before the Commissioners was considered, but further evidence could be taken by either the claimant or the govern- ment; so that, in fact, the whole matter was heard anew, as upon an orig- inal proceeding. From its decision, an appeal lay to the Supreme Court of the United States. " As thus seen, the most ample powers were vested in the Commission- ers and the District Court to inquire into the merits of every claim ; and they were not restricted in their deliberations by any narrow rules of procedure or technical rules of evidence, but could take into considera- tion the principles of public law and of equity in their broadest sense. When the claim was finally confirmed, the act provided for its survey and location, and the issue of a patent to the claimant. The decrees and the patents were intended to be final and conclusive of the rights of the parties, as between them and the United States. The act, in declaring that they should only be conclusive between the United States and the claimants, did, in fact, declare that as between them they should have that character. "Here, then, we have a special tribunal, established for the express purpose of ascertaining and passing upon private claims to land derived from Spanish or Mexican authorities, clothed with ample powers to in- vestigate the subject and determine the validity of every claim, and the propriety of its recognition by the government, capable as any Court could possibly be made of detecting frauds copnected with the claim, :541 and wliiisc lirst ini|nin in every case was necessaril.v as lo llie anlhenli- cily and uenuineiK'ssol' (lie dociiiueiits upon wiiicli tlie claim was founded. '■ We have a s]ieeial jiirisdieliou oC a like nat ure in the 1 )ist lict ( 'ourt, to review tiie decision made hy llie Commission, and investifiute anew the claim. We have principles prescribed for the government of both Commission and Conrt in these cases, and of the Supreme Court, upon ai)peal from their decisions, not api)lical)Ie in ordinary proceedings, either at law or in equity. And, as slready stated, every person claiming land in the State wjis required to present his claim for investigation. The onerous duty tlius thrown upon him was relieved of its oppressive char- acter by the accompanying assurauce, that, when his claim was adjudged valid, the adjudication should be final and conclusive. '■On principle, such adjudications cannot be reviewed or defeated by a Court of Equity, upon any suggestion that the Commissioners and Court misapprehended the law, or were mistaken as to the evidence before them, even if that consisted of fabricated papers supported by perjured testimony. The very questions presented by the present bill were neces- sarily involved in the proceeding before the Commissioners and the Dis- trict Court, and the credibility of the testimony ofiered was a matter considered by them. Whether the grant produced by the claimant was genuine, and the claim resting thereon was entitled to confirmation, were the points at issue. The bill avers that the alleged grant was not genu- ine because it was ante-dated. But the genuineness of the docunu'ut was the matter subjudice, and could not hava been established, and the claim based upon it affirmed, except by evidence satisfactory to the Com- mission and Court, that it was made at the time stated. " It is to no purpose in such case to invoke the doctrine that fraud viti- ates all transactions, even the most solemn, and that a Court of Equity will set aside or enjoin the enforcement of the most formal judgments when obtained by fraud. The doctrine of equity in this respect is not (juestioned; it is a doctrine of the highest value in the administration of justice, and its assertion in proper cases is essential to any remedial sys- tem adequate to the necessities of society. But it cannot be invoked to reopen a case in which the same matter has been once tried, or so put in issue between the parties that it might have been tried. The judgment rendered in such a case is itself the highest evidence that the alleged fraud did not exist, and estops the parties from asserting the contrary. It is afterwards mere assumption to say that the fraud was perpetrated. The judgment has settled the'matter otherwise; it is res judicata. " The frauds for which Courts of Eciuity will interfere to set aside or stay the enforcement of a judgment of a Court having jurisdiction of the subject-matter and the parties, must consist of extrinsic collateral acts not involved in the consideration of the merits. They must ])e acts by which the successful party has prevented liis adversary from presenting the merits of his ca.se. or by which the jurisdiction of the Court has been imposed upon. 342 "All litigants ure equally entitled to justice from the tribunals of the country; they have eijually a right to an impartial judge; they can claim equal opportunities of producing their testimony and presenting their case, and they can equally have the advocacy of counsel. When- ever one party by any contrivance prevents his adversary from having this equality with him before the Courts, he commits a fraud upon pub- lic justice, which, resulting in private injury, may be the ground of eq- uitable relief against the judgment recovered. Thus if, through his in- strumentality, the witnesses of his adversary be forcibly detained from the Court, or bribed to disobey its subpoena, or the testimony of his ad- versary be secreted or purloined, or if the citation to him be given under such circumstances as to defeat its purpose, a fraud is committed, for which relief will be granted by a Court of Equity, if it produce injury to the innocent party. Any conduct of the kind mentioned would tend to prevent a fair trial on the merits, and thus to deprive the innocent party of his rights. So, if a judge sit when disqualified from interest or con- sanguinity; if the litigation be collusive; if the parties be fictitious; if real parties affected are lalsely stated to be before the Court, the judg- ment recovered may be set aside, or its enforcement restrained, for in all these cases there would be the want of the judicial impartiality or the actual litigation which is essential to a valid judicial determination. To every such case the words of the jurist would be applicable : Fabula non judicium, hoc est ; in scena, non in foro, res agitur. " The credibility of testiraouy given in a case, bearing upon the issue, is not an extrinsic collateral act, but is a matter involved in the consid- eration of the merits ; and the introduction of false testimony, known or shown to be so, does not affect the validity of the judgment rendered. In every litigated case where the interests involved are large, there is generally conflicting evidence. Witnesses looking at the same trans- action from different stand-points, give different accounts of it. The statements of some are unconsciously affected by their wishes, hopes, or prejudices. Some, fron; defective recollection, will blend what they themselves saw or heard with what they have received from the nar- ration of others. Uncertainty as to the truth in a contested case will thus arise from the imperfection of human testimony. In addition to this source of uncertainty may be added the possibility of the perjury of witnesses, and the fabrication of documents. The cupidity of some and the corruption of others may lead to the use of these culpable means of gaining a cause. But every litigant enters upon the trial of a cause, knowing not merely the uncertainty of human testimony when honestly given, but that, if he has an unscrupulous antagonist, he may have to encounter frauds of this character. He takes the chances of establish- ing his case by opposing testimony, and by subjecting his opponent's witnesses to the scrutiny of a searching cross-examination. The case is not the less tried on its merits, and the judgment rendered is none the less conclusive, by reason of the false testimony produced, Thus, if an 348 artion be brought upon ;i promissory note, and issui- be joined on its ex- ecution, and judgment go for the plaintiff, and there is no appeal, or if an appeal be taken, and the judgment be affirmed, the judgment is con- clusive between the parties, although, in fact, the note may have been forged and the witnesses who proved its execution may have committed perjury in their testimony. The rules of evidence, the cross-examina- tion of witnesses, and the fear of criminal prosecution with the produc- tion of counter testimony, constitute the only security afforded by law to litigants in such cases. A Court of Equity could not afterwards in- terfere upon an allegation of the forgery and false testimony, for that would be to reopen the case to a trial upon the execution of the note, which had already been subjudice, and passed into judgment. "These views are in consonance with the adjudged cases. We have looked in vain through all those cited by the learned associate counsel in the Throckmorton Case for anything infringing upon them. In the Djichess of Kingston's Case the sentence of the Spiritual Court was held to be fraudulent and void, because obtained by collusion of the parties. And, in giving the opinion of the judges to the House of Lords, Chief Justice De Grey observed that, although a judgment was conclusive evidence upon the point involved, and could not be impeached from within, yet, like all other acts of the highest judicial authority, could be impeached from without, and that fraud was an extrinsic collateral act which vitiated the most solemn proceedings of Courts of Justice. "In the Shedden Case (1 Macqueen, 535) the question was whether a judgment of the Court of Sessions of Scotland against the legitimacy of the plaintiff, affirmed by the House of Lords, could be attacked in an- other suit in the inferior Court, and treated as a nullity for collusive sup- pression of proof which would have established his parents' marriage. The House of Lords held that the judgment could be thus attacked, but that the allegations of fraud and collusion in the case were not suffi- ciently specific, pointed, and relevant to be admitted to proof. Opinions in the case were given by the Chancellor and two of the. Law Lords, Brougham and St. Leonards. The judgment of the House of Lords, said Brougham, was to be 'dealt with in the inferior Court before which its merits were brought ; that is to say, not the merits of the judgment, but the merits of the parties who had so fraudulently obtained it — the ques- tion being, was it a real judgment or not ? For that is the only question in such cases, and that is the question in this case.' " In Termor's Case (2 Coke, 77) the tenant continued to pay rent to his landlord after he had levied a fine with proclamation to bar the inheri- tance, and thus kept the latter in ignorance of that proceeding. The ten- ant attempting, after the expiration of the leiise, to hold the property on the ground that the right of the landlord was barred by the lapse of time allowed by statute to make an entry or l)ring his action after the fine, the Court, upon a bill filed for relief, held that he was not barred by rea- son of the deception practiced upon him. The payment of the rent was 844 ill fact ii (let'liinitioii by tlu- tenant that his relation to the huicnord had not changed, and operated as a fraud preventing the hitter from asserting his rights. "Great stress is placed by the learned associate counsel upon these last two cases, but it is evident, from the statement we have made, that the fraud alleged in both cases was an extrinsic collateral act which pre- vented the complaining party, in one instance, from having the merits of his^case considered, and in theother instance, from taking proceedings for his protection. So in all the other cases, extrinsic collateral acts of fraud will be found to constitute the grounds upon which the Court has acted. And on principle it must be so, for if the merits of a case could be a sec- ond time examined by a new suit, upon a suggestion of false testimony, documentary or oral, in the tirst case, there would be no end to litigation. The greater the interests involved in a suit, the severer generally the con- tention ; and in the majority of such cases the recovery of judgment would be the occasion of a new suit to vacate it, or restrain its enforce- ment. If the present bill could be sustained upon the grounds alleged, and we should set aside the decree of the District Court, a new bill might years hence be filed to annul our judgment and reinstate the original de- cree, on the same grounds urged in this case, that fabricated papers and false testimony had been used before us, which eluded the scrutiny of the counsel and escaped our detection. Of course, under such a .system of proceduie, the settlement of land titles in this State would be postponed indefinitely, and the industries and improvements, which require for their growth the assured possession of land, would be greatly paralyzed. " For the reasons stated, we are of opinion that there is no ground of fraud presented by the bill for the interference of a Court of Equity with the decree of confirmation rendered by the District Court. It is upon that ground alone that the bill proceeds. It is not a bill of review for new matter, discovered since the decree. A bill of that character can only be filed by leave of the Court ; and that cannot be obtained with- out a. showing that the new matter could not have been used in the orig- inal cause, and could not previously have been ascertained by reasonable diligence. It does not lie where the decree in the original cause was ob- tained by consent, or where objections to the decree rendered were sub- sequently withdrawn and consent was given to its execution. And it can only be allowed by a court possessing the power, upon a review of the case, to determine the lights of the parties to the property, or in the matter involved, or, at least, authorized to remit the case to a tribunal having adequate jurisdiction for that purpose. The present bill was not filed upon leave ; and this Court possesses no power to determine the right of the claimant, upon any review of the case, to a confirmation of his claim, and the only tribunal to which such a determination could be re- mitted has long since ceased to exist. " But there are other and equally potential grounds against the main- tenance of the present suit. The Land C'ommission and the District 345 Court, tliouf^h exercising a speeial jurisdiction, were invested witli very large and extensive powers. They were not, as already staled, lumiid in their decisions to any strict rules of technical law, but could he governed by the principles of equity in their widest scope. The result of their in- quiries was to guide the goveriuuenl in the discharge of its treaty obliga- tions. Considerations, therefore, which could not be presented to ordi- nary tribunals, might very properly be regarded by them. "After the determination of the Commissioners, if against the United States, the control of the proceedings was placed with the Attorney-Gen- eral. It rested with him exclusively to determine \vhether the appeal from the Commissioners, taken by filing a copy of the transcript witli the clerk of the District Court, should be prosecuted or dismissed. So also when an appeal was taken from the decree of the District Court, he could, in the suuie way, direct its prosecution or dismissal. Considera- tions of policy, as well as of strict right, might be deemed by himsuffi- eient to control his action in this respect. In coming to a determination on the subject, he was not restricted to an examination of the transcript transmitted to him : he could look into the archives of the former gov- ernment, the reports of officers previously appointed to examine into the subject of the land titles of the State, the records of the Land Department at Washington, and any correspondence existing between Mexico and the United States respecting the title. His power was unlimited, and the propriety or legality of his action in any case was not the subject of re- view by any tribunal whatever, and it could only be revoked by the ap- pellate Court upou his own application. " In the case of Yorba, the appeal from the decree of contirmation, rendered by the District Court, was dismissed upon notice of the Attor- ney-General that the appeal would not be prosecuted, and thereupon the decree became final. The decree was thus assented to by the highest legal officer of the government, specially charged with supervision over the subject. The validity of the decree, and of the grant upon whicli the claim of Yorba was founded, was thus forever put at rest. From that day it could never be successfully questioned in any form of pro- cedure, or by any tribunal known to our laws. It was a closed (juestiou for all time. " But this is not all. The defendants purchased their interests after the final decree. They are charged in the bill, it is true, generally, with notice of the alleged frauds of the claimant ; but how, or where, or in what manner they had notice, is not averred. The vagueness of the al-' legation gives it only the weight of mere clamor. But, assuming that the defendants had sufficient notice to put them upon inquiry, they had at the same time notice of the decree, which was an adjudication — the highest possible evidence— that the alleged frauds had no actual exist- ence, and that to this adjudication the government, through its Attor- ney-General, had consented. They had a right, theretbre, to rely im- plicitly upon the decree, and rest in confidence upon the assurance of its 84B finality, given by the only officer of the United States who could ques- tion it. They can, therefore, justly insist upon protection in the prop- erty purchased ; and no Court of Equity, under the circumstances, would lend its aid to the commission of so great a wrong as the destruction of their title. " Where the District Attorney of this district obtains authority to in- stitute in the name of the United States a suit for that purpose, we are not informed. There is no law of CongTess which requires it or allows it; and we have sought in vain for the power of the Attorney-General to direct it. That officer can, it is true, institute or direct the institution of suits for the reA'ocation or cancellation of patents of lands belonging to the United States, issued upon false or fraudulent representations to the executive officers of the Land Department, or upon their misconstruc- tion of the law. He is the legal adviser of the heads of the executive departments, and if they are fraudulently imposed upon, or have mis- taken the law, he can take the necessjary legal proceedings to recall the results of their action. But that is a very different matter from institut- ing or directing proceedings to vacate or recall patents founded upon de- crees of a Commission or Court exercising a special and exclusive juris- diction over the subjects investigated, where the law declares that such decrees shall be tinal and conclusive between the parties, and to which decrees the Attorney-General in office at that time assented. Tho.se de- crees established the obligation of the United States to the claimants un- der the treaty, and if the 'legislative department, which authorized the proceedings before the Commission and Court, be .satisfied with the result, it is difficult to see upon what pretence the Attorney-General can .seek to disturb it. If the Attorney-General, by virtue of his office, possesses any .such extraordinary power, as claimed in the case, to disregard the action of his predeces.sor, and to renew litigation at his pleasure respecting the titles of a whole people, upon a suggestion that faLse te.stiraony may have been used in the original proceedings, the .security vphich the holders of patents from the government issued upon such decrees have hitherto felt in their posses,sion,s, is unfounded and delusive. We must have further evidence than is presented to us before we can admit the existence of a power .so liable to abuse, and so dangerous to the peace of the community. " But if we admit that the Attorney-General is authorized to direct the institution of a suit like the present, in the name of the United States, and that the District Attorney has been thus directed, his power in this respect must be exercised in subordination to those rules of procedure and those principles of equity which govern private litigants seeking to avoid a previous judgment against them. The United States, by virtue of their sovereign character, may claim exemption from legal proceedings, but when they enter the Courts of the country as a litigant they waive this exemption, and stand on the same footing with private individuals. Uule-ss otherwise provided by statute, the same rules as to the admi.ssi- bility of evidence are then applied to them : the same strictness as to 347 motions iiiid uppoals is cnlbrcod ; they nmst move for a new trial or take an appt-al within the same time and in like manner, and they are eciually bound to act upon evidence within their reach. And, when they ro into a Court of Ijiuity, they must equally present a case by allefjation and proof entitling them to equitable relief. "Although, on grounds of wise public policy, no statute of limitations runs against the United States, and no laches in bringing a suit can be imputed to them, yet the fiicility with which tlie truth could originally have been shown by them if different from the finding made ; the changed condition of the parties and of the property from lapse of time ; the dif- ticulty, from this cause, of meeting objections which might, perhaps, at the time have been readily explained ; and the acquisition of interests by third i)arties upon faith of the decree, are elements which will always be considered by the Court in determining whether it be equitable to grant the relief prayed. All the attendant circumstances of each case will be weighed, that no wrong be done to the citizen, though the government be the suitor against him. " The bill in the present case not only does not disclose, as already shown, any extrinsic collateral acts of fraud constituting grounds for eq- uitable relief, but alleges that the ante-dating of the grant and act of .ju- ridical possession, which form the gravamen of complaint, appear on the face of the original documents on file in the archives in the custody of the Surveyor-General of the United States. If this be so, the Law Agent should have shown the fact by the production of the originals. He should have inspected original documents in all cases where copies alone were ottered by the claimant, whether suspicions were excited or not as to their genuineness. The law of Mexico with respect to the alienation of her public lands was well known at the time. It had been the sub- ject of reports to the government by agents employed to look into the grants of the former government, and of consideration and comment by the Courts in numerous instances. That law pointed out the proceedings required for the acquisition of titles of land from Mexico, and showed that a record of them was required to be kept. That record was in the posses.sion of the United States, and should have been examined by the Law Agent of the government whenever any of its entries or documents were the foundation of a claim. He was appointed for the express pur- pose of looking after and protecting the interests of the United States. The allegation that the claimant was guilty of a fraudulent suppression in not producing all the documents in the archives respecting his title is puerile. He produced all that was necessary to present his claim, and if the Law Agent was not satisfied with them, he should have made his objection at the time. The archives were not in an ' unsearchable con- dition,' as alleged, until 1858, but even if they had been, the Law Agent could still have insisted upon the production of the originals for inspection. "After the archives were arranged and the alleged " unsearchable con- dition ' ceased, nearly eighteen years elapsed before the present bill was -348 filed, and no excuse is offered for this delay. During these eighteen years, which constitute a period equivalent almost to a century in other countries, great changes in the condition and value of real property in the State have occurred. During this period, the original claimant, who might perhaps have explained the alleged alteration of dates, has de- ceased, and third parties have acquired his interests, and, it is said, have made valuable and expensive improvements upon the property. Courts of Equity will not entertain a suit to vacate a decree, even in case of palpable frauds, when there has been unnecessary delay in its institu- tion, and the rights of third parties, as in this case, have intervened in reliance upon the decree. Considerations of public policy require prompt action in such cases, and if, by delay in acting, innocent parties have ac- quired interests, the Courts will turn a deaf ear to the complaining ])arty. This is the doctrine of equity, irrespective of any statute of lim- itations, and irrespective of the -character of the suitor. It is essential that this doctrine should be vigorously upheld for the repose of titles and the security of property. " It only remains to notice the allegations of the bill with respect to a l)rcvious grant of eleven leagues, stated to have been obtained by the claimant from the Mexican nation in 1840, and the allegation that the approved survey of the claim confirmed was not in accordance with the map accompanying the grant, and the act of juridical possession. " Whether the issue of a previous grant to the claimaat for the quantity designated would have disqualified him from receiving a second grant, was a question of law, to be determined by the Commissioners and Dis- trict Court; and any error committed in its determination could only be corrected on appeal. And the allegation of fraudulent concealment by the claimant of the existence of the prior grant is an idle one in the face of the fact that the Mexican law, of which the Court is bound to take notice, required a record of every grant to be kept, and that this record, with other public property, passed to the United States on the cession of the country. If there was any such grant as stated, so far from its ex- istence being concealed by the claimant, the evidence of its existence was in the custody of the government, and its attention had been spe- cially directed to the document by agents appointed to ascertain what grants had been made by the former government, who examined the records and reported a list of all grants found among them. Allegations thus in conflict with the public records and public history of the country need not be specially controverted any more than allegations at variance with the settled law. A fraudulent concealment by the claimant of a public record, never in his possession, but always in the keeping of the government, and open at all times to the inspection of the world, was a thing impossible. The bill might with as much propriety have alleged that the claimant concealed from the Court one of the public statutes of the country. " As to the alleged error in the survey of the claim, it need only be ob- served that the whole subject of surve3\s upon confirmed grants, except as providod by the act of l.^CO, whii-h iliil not ciubnitr this case, u as un- der tlK' control of tlie Land Department, and was not sul-jcct to tlic su- pervision of the Courts. Whether the survey conforms to the claim con- lirmed or varies from it. is a matlcr with which the Courts ha\c uotliiiiji to do: tliat belongs to a department whose action is not tlie subject of review by tlie judiciary in any case, liowevcr erroneous. The Courts can only examine into the correctness of a survey when, in a controversy be- tween parlies, it is alleged that the survey made infringes upon the prior rights of one of them: and can then look, into it only so far as may be necessary to protect such rights. They cannot order a new survey or change that already made. " It follows, from the views we have expressed, tliat the demurrer to the bill jnust be sustained ; and as no amendment would reach the princi- pal objection, namely, that the alleged frauds are not such <\lriiisic eol- lateral acts as would justify tlie interference of e(iuity with the decree of contirmatiou, the bill must be dismissed. •'The priniipal objection to the bill in this case applies with equal tbrce to the bills in the Throckmorton and Carpentier Cases, and the de- murrers in those cases will also be sustained and the bills dismissed. The allegation in the Throckmorton Case, that the defendant Howard had notice of the fabrication of the papers from the claimant, given in other proceedings before the Board, and other allegations imput- ing guilty knowledge to him and to the other defendants, are too vague and general to merit consideration, made as they are in a bill not verified and only upon information and belief. The District Attor- ney should at least have stated the sources of his information and the grounds of his belief, that the Court might see that the former was .something better than idle rumor, and the latter .something more than unfoundwl credulity. '■ The defendant, Howard, has tiled an answer denying under oMh. generally and specifically, every charge against him, but by stipula- tion on the argument, he is to have the benefit of the decision upon the demurrer. •■ As the questions presented in the several cases are of vast importance to the people of this State, the District Judge, whose great experience in the examination of land cases gives weight to his views, will read a con- curring opinion with special reference to the Carpentier Case. •' Our judgment is, that the demurrers be sustained in the three cases, and the bills be dismissed ; and it is so ordered." Ill this Opinion Judges Sawyer and Hoffman concurred, Tlie cases were appealed to the Supreme Court of the United States, where the one against Throckmorton was argued and confirmed. — (8 Otto, 61.) The disposition of the other cases followed this decision and were confirmed without rontest. 350 The Eureka Ca^^e. From the time gold was discovered m California, in 1848, until 186G — a period of eighteen years — there was no legislation b}^ Congress for the sale of the mineral lands of the government. The value of property in mines on the public lands, with the machinery and mills con- structed either for their development or the separation of the precious metals from the ores— of gold at first, and afterwards of silver also — can hardly be estimated. It amounted, including the mining property in Xevada and adjoining Territories, as well as in California, to several hundred millions of dollars. Until 1866 all this vast prop- ei'ty was governed by the regulations and customs of min- ers as enforced and moulded by the Courts, and sanctioned by the legislation of the Pacific States and Territories. Upon them the miners relied with confidence for protec- tion, and felt absolute security in their possessions. A more just and reasonable system for the development of a great industry was never devised by the wisest of legisla- tors. In July, 1866, Congress passed an act entitled "An act granting the right of way to ditch and canal owners over public lands, and for other purposes," of wliich Sena- tor Stewart, of ^N^evada, was the author. This act, in its first section, declared that the mineral lands of the public domain, both surveyed and unsurveyed, were free and open to exploration and occupation b}' citizens of the United States, and those who had declared their intention to be- come citizens, subject to such regulations as might be pre- scribed by law, and the local customs or rules of miners, in their several mining districts, so far as the same were not in conflict with the laws of the United States. In other sections provisions were made for acquiring the title of the United States to claims in veins or lodes of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, where the possessory right to such claims had been pre- viously acquired under the customs or rules of miners, and 3-)! upon whicli u certain aniomit in lahoi- and iiniirovcnu-ntrt had been expended. Altliouii-h the sections of tin- act of 18(36, containing these provisions, were repealed hy the act of May 10th, 1872, "To promote the development of the mining resources of the United States," the provisions themselves were in substance re-enacted in the repealing act. The object of the two acts, and also of the act of 1870, amending that of 1866, was not to interfere with the possessory rights of the miners acquired under their own regulations, but rather to secure them by the patent of the United States, and also to prescribe, by general law, the extent of ground which an individual claim might cover. Until 1857, the principal amount of mining was done on placer claims. These became, by that time, so fully worked out as to yield little remuneration to the laborer. More profitable mining, both for gold and silver, was found in veins or lodes of quartz, and mills for crushing quartz were consequently erected in mining districts in great numbers. Large deposits of gold were also found in the channels of old streams, buried under the hills, in some instances to the depth of over one hundred feet from the surface, and hydraulic machinery was employed to wash off the super- incumbent mass and separate the mineral. Litigation followed the passage of the acts of C'ongress, in many cases. The meaning of the terras used had to be judicially defined and applied. Miners were not agreed as to what was intended by the terms " vein or lode " of quartz, or other rock in place, bearing gold or silver. The acts gave to the owner of claims on lodes a right to follow, within certain parallel lines, the metal found within them, and this right was of great importance and value and was tlie occasion of much controversy. A case fi'om the Eu- reka Mining District, in the State of Nevada, between the p]ureka Consolidated Mining Company and the Richmond Mining Company, brought the question as to the meaning of those terms before the Circuit Court for decision, at it* July term in 1877. At the trial— which was had without tlio intorv(Mitioii oi'a jnrv — ]u(\^v Sawvcv, and also , Indigo Hillyer ol' the Xevada District, occupied the bench with Judge Field. The case was tried, l)y stipulation of parties, at San Francisco. There were three principal questions in the case: 1st. "Whether the mining ground in contro- versy was part of one vein or lode, within the mean- ing of those terms in the act of Congress; 2d. Whether the patents of the plaintiif were valid, notwithstanding the end lines of the locations patented were not parallel, as required by the act of 1872; and 3d. Whether the ground in dispute had been assigned to the plaintiff in a settle- ment made in June, 187o. The Court gave an affirmative answer to these questions. Upon the first two, Judge Field, in delivering the opinion of the Court — first stating the case — said as follows : " The premises in controversy are of great value, amounting by estima- tion to several hundred thousands of dollars, and the case has been pre- pared for trial with a care proportionate to this estimate of the value of the property ; and the trial has been conducted by counsel on both sides with eminent ability. "Whatever could inform, instruct, or enlighten the Court has been presented bj^ them. Practical miners have given us their testimony as to the location and working of the mine. Men of science have explained to us how it was probable that nature in her processes had deposited the mineral where it is found. Models of glass have made the hill, where the raining ground lies, transparent, so that we have been able to trace the course of the veins and see the chambers of ore found in its depths. For myself, after a somewhat extended judicial experience, covering now a period of nearly twenty years, I can say that I have seldom, if ever, seen a case involving the consideration of so many and varied particu- lars, more thoroughly prepared or more ably presented. And what has added a charm to the whole trial has been the conduct of counsel on both sides, who have appeared to assist each other in the development of the facts of the case, and have furnished an illustration of the truth that the highest courtesy is consistent with the most earnest contention. " Tiie mining ground which forms the subject of controversy is situ- ated in a hill known as Ruby Hill, a spur of Prospect Mountain, distant abo'ut two miles from the town of Eureka in Nevada. Prospect Moun- tain is several miles in length, running in a northerly and southerly course. Adjoining its northerly end is this spur called Ruby Hill, which extends thence westerly, or in a southwesterly direction. Along and through this hill, lor a distance .slightly exceeding a mile, is a zone of liniesUmo, in wliicli, at (liri'ciciit places throunhoul its len;j,tli. and in va- rious forms, mineral is I'ound, tiiis mineral appearing sometimes in a se- ries or succession of ore bodies more or less closely connected, sometimes in apparently isolated eliamhers, and at other times in what would seem to be scattered grains. And our i)riiicipal inquiry is to ascertain the character of this zone, in order to determine whether it is to be treated as constituting one lode, or as embracing several lodes, as that term is used in the acts of Congress of 18()6 and 1872, under which the i)arties have acquired whatever rights they possess. In this inquiry the first thing to be settled is the meaning of the term in those acts. This mean- ing being settled, the physical characteristics and the distinguisliing tea- tures of the zone will be considered. " Those acts give no definition of the term. They use it always in con- nection with the term vein. The act of 1866 provided for the acquisition of a patent by any person or association of persons claiming 'a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper.' The act of 1872 speaks of veins or lodes of quartz or other rock in place, bearing similar metals or ores. Any definition of the term should, therefore, be sufficiently broad to embrace deposits of the several metals or ores here mentioned. In the construction of statutes, general terms must receive that interpretation which will include all the in- stances enumerated as comprehended by them. The definition of a lode given by geologists is, that of a fissure in the earth's crust filled with mineral matter, or more accurately, as aggregations of mineral matter containing ores in fissures. — (See Von Cotta's Treatise on Ore Deposits, Prime's Translation, 26.) But miners used the term before geologists at- tempted to give it a definition. One of the witnesses in this case, Dr. Raymond, who for many years was in the service of the general govern- ment as Commissioner of Mining Statistics, and in that capacity had oc- casion to examine and report upon a large number of mines in the States of Nevada and California, and the Territories of Utah and Colorado, says that he has been accustomed as a raining engineer to attach very little importance to those cases of classification of deposits, which simply in- volve the referring of the subject back to verbal definitions in the books. Tlie whole subject of the classification of mineral deposits, he states, to be one in which the interests of the miner have entirely overridden the reasonings of the chemists and geologists. 'The miners,' to use his lan- guage, ' made the definition first. As used by minere, before being defined by any authority, the term lode simply meant that formation by which the miner could be led or guided. It is an alteration of the verb lead ; and whatever the miner could follow, expecting to find ore, was his lode. Some formation within which he could find ore, and out of which he could not expect to find ore, was his lode.' The term lodestar, guiding star, or north star, he adds, is of the same origin. Cinnabar is not found in any fissure of the earth's crust, or in any lode as defined by geologists, yet the acts of Congress speak, as already seen, of lodes of quartz, or rock 854 in place, bearing cinnabar. Any definition of lode as there nsed, which did not embrace deposits of cinnabar, would be as defective as if it did not embrace deposits of gold or silver. The definition niiist apply to de- posits of all the metals named, if itappl}^ to a deposit of any one of them. Those acts were not drawn by geologists or for geologists ; they were not framed in the interests of science, and consequently with scientific accu- racy in the use of terms. They were framed for the protection of miners in the claims which they had located and developed, and should receive such a const ruction as will carry out this purpose. The use of the terms vein and lode in connection with each other in the act of 1866, and their use in connection with the term ledge in the act of 1872, would seem to indicate that it was the obiect of the legislator to avoid any limitation in the application of the acts, which a scientific definition of any one of these terms might impose. " It is difficult to give any definition of the term as understood and used in the acts of Congress, which will not be subject to criticism. A fissure in the earth's crust — an opening in its rocks and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to the definition of a lode in the judgment of geologists. But to the practical miner the fissure and its walls are only of importance as indicating the boundaries within which he may look for and reason- ably expect to find the ore he seeks. A continuous body of mineralized rock lying within any other well-defined boundaries on the earth's sur- face aijd under it, would equally constitute in his eyes a lode. We are of opinion, therefore, that the terra as used in the acts of Congress is ap- plicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes, to use the language cited by counsel, all deposits of mineral matter found through a mineralized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same pro- cesses. " Examining now, with this definition in mind, the features of the zone which separate and distinguish it from the surrounding country, we ex- perience little difficulty in determining its character. We find that it is contained within clearly defined limits, and that it bears unmistakable marks of originating, in all its parts, under the influence of the same creative forces. It is bounded on the south side, for its whole length, at least so far as explorations have been made, by a wall of quartzite of sev- eral hundred feet in thickness ; and on its north side, for a like extent, by a belt of clay, or shale, ranging in thickness from less than an inch to seventy or eighty feet. At the east end of the zone, in the Jackson mine, the quartzite and shale approach so closely as to be separated by a bare seam, less than an inch in width. From that point they diverge, until on the surface in the Eureka mine, they are about 500 feet apart, and on the surface in the Richmond mine, abont 800 feet. The quartzite has a general dip to the north, at an angle of about 45 degrees, subject to sonu' local viuiatioiis, as llir course cliauijcs. Tlic clay or shale is more ))eri)eii(lifular, liavin<>; a dij) at an au^te of abont 80 ileurees. At some depth under the snrfaee these two l»oniularies of the limestone, de- scending at their respective angles, may come together. In somt> of the levels worked, they are now only from two to three hundred feet apart. "The limestone found between these two limits — the wall of (piartzite and the seam of clay or shale — has. at some period of the world's hi.story, been subiected to some dynamic force of nature, by which it has been broken up, crushed, disintegrated, and fissured in all directions, so as to destroy, except in three or ibvir ydaces of a few feet each, so far as ex])lora- tions show, all traces of stratification ; thus specially fitting it, accord- ing to the testimony of the men of science, to whom we have listened, for the receiitioii of the mineral whieli, in ages i)ast. came up from the depths below in solution, and was dejiosited in it. E\ idence that the whole nuiss of limestone has been, at some period, lifted u]) and moved along the quartzite, is found in the marks of attrition engraved on th(> rock. This broken, crushed, and fissured condition pervades, to a greater or less extent, the whole body, showing that the same forces which ope- rated upon a part, operated upon the whole, and at the same time. Wherever the quartzite is exposed the marks of attrition apjiear. Below the quartzite no one has penetrated. Above the shale the rock has not been thus broken aiul crushed. Stratification exists there. If in some isolated places there is found evidence of disturbance, that disturbance has not been sufficient to affect the stratification. The broken, crushed, and fissured condition of the limestone gives it a specific, individual charac- ter, by which it can be id(>ntified and separated from all other limestone in the vicinity. " In this zone of limestone numerous caves or chambers are found, further distinguishing it from the neighboring rock. The limestone be- ing broken and crushed up as stated, the water from above readily pene- trated into it, and operating as a solvent, formed these caves and chambers. No similar cavities are found in the rock b-yond the shale, its hard and unbroken character iu)t ))ei'mittiiig, or at least opposing such iietion from the water above. "Oxide of irou is also found in numerous places throughout the zone, giving to the miner assurance that the metal he seeks is in its vicinity. " This broken, crushed, and fissured condition of the limestone, the presence of the oxides of iron, the (;aves or chambers we have mentioned, with the wall of quartzite and seam of clay bounding it, give to the zone, in the eyes of the prai-tical miner, an individuality, a oneness as com- plete as that which the most perfect lode in a geological sense ever pos- sessed. Each of the characteristics named, though produced at a differ- ent period from the others, was undoubtedly caused by the s.iTue forces operating at the same time upon the whole body of the limestone. '■ Throughout this zon." of limestone, as we have already stated, min- eral is found in numerous fi.ssures of the rock. According to the ojjin- 24 856 ions or all the scientific men who have been examined, this mineral was brought up in solution from the depths of the earth below, and would, therefore, naturally be very irregularly deposited in the fissures of the crushed matter, as these fissures are in every variety of form and size, and would also find its way in minute particles in the loose material of the rock. The evidence shows that it is suflQciently diffused to justify giving to the limestone the general designation of mineralized matter — metal-bearing rock. The three scientific experts produced by the plain- tiff, Mr. Keyes, Mr. Eaymond, and Mr. Hunt, all of them of large experi- ence and extensive attainments, and two of them of national reputation, have given it as their opinion, after examining the ground, that the zone of limestone between the quartzite and the shale constitutes one vein or lode, in the sense in which those terms are used by miners. Mr. Keyes, who lor years was superintendent of the mine of the plaintiff, concludes a minute description of the character and developments of the ground, by stating that in his Judgment, according to the customs of miners in this country and common sense, the whole of that space should be con- sidered and accepted as a lead, lode, or ledge of metal-bearing rock in place. " Dr. Raymond, after giving a like extended account of the character of the ground, and his opinion as to the causes of its formation, and stat- ing with great minuteness the observations he had made, concludes by announcing as his judgment, after carefully weighing all that he had seen, that the deposit between the quartzite and the shale is to be considered as a single vein in the sense in which the word is used by miners — that is, as a single ore deposit of identical origin, age, and character through- out. "Dr. Hunt, after stating the result of bis examination of the ground and his theorj^ as to the formation of the mine, gives his judgment as follows : " ' My conclusion is this: that this whole mass of rock is impregnated with ore; that although the great mass of ore stretches for a long dis- tance above horizontally and along an incline down the foot-wall, as I have traced it, from this deposit you can also trace the ore into a succes- sion of great cavities or bonanzas lying irregularly across the limestone, and into smaller caverns or chasms of the same sort; and that the whole mass of the limestone is irregularly impregnated with the ore. I use the word impregnation in the sense that it has penetrated here and there ; little patches and stains, ore-vugs and caverns and spaces of all sizes and all shapes, irregularly di.ssemlnated through the mass. ... I conclude, therefore, that this great mass of ore is, in the proper sense of the word, a great lode, or a great vein, in the sense in which the word is used by miners; and that practically the only way of utilizing this deposit, is to treat the whole of it as one great ore-bearing lode or mass of rock.' "This conclusion as to the zone constituting one lode of rock, bearing metal, it is trvie, is not adopted by the men of science produced fis wit- nesses hy llu' dt'lendaiit, tlif Ixicliiiioiul Coiupaiiy. Tlicsc latter iiciitlc- iiicii. like tlic others, have liad a larjie exiuTieiice in llic rxaiiiiiiatiuii of iiiiiics. and some of them have acijuired a national reputation lor their scientific attainments. No one questions their learnin<>; or ability, or the sincerity with which they have expressed their convictions. They agree with the plaintifT's witnesses as to the existence of the mint^ralized zone of limestone with an nndcrlyinsx.qnartzite and an overlyinihstantially as to tlieorisin of the metal and itsdei)osition in the rock. In nearly all other respects they disaiiree. In their jndjiment the zone of limestone has no features of a lode. It lias no continuous lissure, says Mr. Kin:;iy that botli the defend- ant and the plaintilf, by virtue of tlieir respectiv'e patents^ whether issued upon locations under the act of 1866, or 360 undei- the act of 1872, were limited to veins or lodes lying Avithin planes drawn vertically downward through the end lines of their respective locations, and that each took the ores found within those planes, at any depth in all veins or lodes, the apex or top of which lay within the surface lines of its locations; that the question of priority of loca- tion was of no practical importance in the case; that this question hecame important only where the lines of one patent overlapped the other; thaf here neither plaintitl' nor defendant conld pass outside of the end lines of its own location, whether they were made hefore or after those U[)on which the other [)arty relied; and as the ground in dispute lay within planes drawn vertically downward through the end lini'sol'the pi aintitf's location, the conclu- sion was that tlie gi'ound was the property of the plaintitl'. Judgnjent was accordingly ordered in its favor. The same conclusion was reached by the Court upon the agreement of the parties of the 16th of June, 1878. Judgment being entered for the plaintitl", an appeal was taken to the Supreme Court of the United States, and the judgment was there affirmed, the Court placing its decision upon the agreement of the parties. This agreement, how- ever, could not have settled tlie controversy, unless the lines drawn on the surface mentioned in the agreement, cut through the whole extent of the mining property — that is, unless that property was a part of a lode as defined in the opinion of the Circuit Court. All lines dividing claims upon veins or lodes, must necessarily divide all that the location on the surface carries, and w^ould not serve as a boundary between them, if such were not the case.^ — (13 Otto.) The Pueblo Case. In a preceding case the existence of a Mexican pxchlo, or town, at the site of the present city of San Francisco- its claim to the use of four square leagues of land — the power of the Mexican x\lcaldes to distribute these lands 8H1 in small [larcoKs to the inhabitants of the town for hnild- ing', cultivation, atul other uses, and the exercise of a sini- iliar power by the Alcaldes appointed hy our military and naval commanders after the conquest of the ciountry — have been stated. — See p. 322. As the Supreme Court of the United States said in Tre- nouth vs. San Francisco: " Upon the sudden increase of population at that place, following the discovery of gold, the Alcaldes were called upon for building-lots in great numbers, and those officers distributed them witli a gen- erous liberality" usually attending the grant of other peo- ple's property. Numerous persons, however, arriving at the town were not disposed to recognize the authority in this respect of the American magistrates, and finding it less troublesome to appropriate what land they needed than to apply to the magistrates for it, they asserted that the land on which the pueblo was situated belonged to the United States, and, as evidence of the sincerity of their convictions, immediately proceeded to take as much of it for themselves as they could conveniently enclose and hold. Thus the town was soon filled wnth an active and restless population, making large and expensive improvements upon lands held in some instances under grants from the Alcaldes, and in others by the right of prior possession. Sometimes the same parcel was claimed by different par- ties; by one party as a settler, and by another as the holder of an Alcalde grant. Disputes both in and out of the Courts, the natural consequence of this difference in the origin of the titles of the claimants, were greatly in- creased in bitterness by the enormous value which in a short period the lands acquired." — (10 Otto, 251.) After Cahfornia was organized as a State, San Fran- cisco w^as incorporated as a city hy its Legislature, and municipal officers w^ere elected to administer its govern- ment. As has happened in many other cases, the city con- tracted more debts than its revenues authorized, and did not always make suitable provision to meet its obligations 362 as tliey niiitured, Xuinerous suitw were consequently instituted ag-ainst it and judgments recovered. Execu- tions were issued upon tliese judgments and levied upon the land claimed by the city. Those wlio denied that the city possessed any title to the property, of course paid no attention to the sales; and property of immense value, covering in some instances hundreds of acres, was in consequence struck off at a mere nominal price. What tended to add t(^ the confusion of titles was the dilferent opinions entertained respecting them by the Supreme Court of the State at ditierent times. tIic first bench of judges of the Court decided that San Francisco never was a pueblo, had no [)roprietary rights, and that the grants made by the Alcaldes appointed by the American oificers after the conquest, conveyed no tith^ The successors of these judges decided just the reveise, and held that San Francisco was a pueblo, that it had proprietary rights to four square leagues, and that the change of flags worked no change in those I'ights or the power of her officers to make grants of the land. In the mean time the action of the city authorities increased this confusion. Asserting that there originally was a Mexican pueblo, and that the city of San Francisco had succeeded to its [)roprietary rights, she made a claim to the lands of the pueblo, as its successor, and when the Board of Land Com- missionei-s was created by the act of Congress of March 3d, 1851, she presented the claim for confirmation. In December, 1854, the Board confirmed this claim for a por- tion of the foursquare leagues. Dissatisfied with the limi- tation of the claim, the city appealed from the decree of the Board to the District Court of the United States, where the case remained undecided until September, 1864 — a period of nearly ten years. Pending this appeal, the city passed an ordinance, known in her history — from the name of its author — as the " Van Ness Ordinance," the object of which, as expressed in the title, was " lor the settlement and quieting of the land titles in the city of San Fran- aH3 CISCO." it relii!qui^5lKMl and ii'mnte'd all llic i'ii;'lit and claim of the city to land within the corporate limits, as de- fined hy tlie charter oi" 1851 — with certain exceptions — to parties in the actnal })ossession thereoi". hj themselves or tenants, on or before the first of .lanuary, 1855, providcnl such pO!?session was continued up to the time of the intro- duction (.)f the ordinance into the Common Council, or if interru[)ted hy an intruder or trcspassc-r, had heeii or might he recovered hy legal process. And it declared that for all the purposes contem[)lated hy the ordinance, persons should he deemed [»ossessors, who lield titles to lands within those limits hy virtue of a grant nuide by any ayuntannento, town council, alcalde, cu' justice of the peace of the former pueblo, before the 7th of July, 184*:!, or by virtue of a grant subsequently made by those authorities, within certain limits of the city, previous to its incorpora- tion by the State, provided the grant or a material portion of it had been recorded in a pi'oper bo(dv of records in the control of the recorder of the county previous to April 3d, 1851. In March, 1858, the Legislature ratified and con- firnied this ordinance. Its framers, however, being in doubt whether the city had any title to the lands claimed by her as successor of the Mexican pueblo, provided for tlie ultimate determination of the question either way ; and directed, on the assumption that the land was public land, that an entry of it be made at the proper land othce of the United States, and declared that whatever title might be acquired, either on a confirmation of the pueblo claim, or through the action of the land officers, should inure to the benefit of parties in possession, within the meaning of the ordinance. As was to be expected, large numbers of suits were brouglit in the Courts, by the holders of the conflicting titles, to test their validity. These suits were carried to the Supreme Court of the State, where various decisions were rendered, not always consistent with each other, nor always meeting the entire approval of the profession, but 364 generally holding tliat a Mexican pueblo, with an interest of some sort in the lands, had existed at the site of the citj on the acquisition of the country, and that such lands, like other property of the city not used for public pur- poses, were vendible on execution. Finally a test case — Hart vs. Burnett — presenting the dilferent titles for adju- dication, found its way to that Court. It was there elabo- rately argued by able and learned counsel, and the whole law of Mexico upon the subject of pueblos, their organi- zation, rights, and powers, the nature of their pi'oprietary rights, the etfect of the change of sovereignty, the powers of alcaldes in the disposition of municipal lands, and the etfect of the Van Xess Ordinance, and the contirmatory act of the Legislature, w^ere thoroughly and fully pre- sented. The magnitude of the interests involved, the pre- vious uncertainty in relation to the law, and the character and erudition of the counsel employed, attracted vei-y general attentit)n to the case. In April, 186U, the ()pini()n of the Court, prepared l)y Judge Baldwin and concurred in by Judge Field, was de- livered. That opinion is remarkable f )r the exhaustive learning and research it exliibits upon the points dis- cussed. The law was established with such precision and clearness that its doctrines have never since been success- fully assailed; on the contrary, they have been repeatedly reaffirmed by the Supreme Court of the State and often recognized as sound by the Supreme Court of the United States. The Court lield, among other things, that at the date of the conquest and cession of the country, San Francisco was a pueblo; that, as such, it had proprietary rights in certain lands which were held in trust for the public usee of the city and for its inhabitants, and were not subject to seizure and sale under execution; that such por- tions as were not set apart for public uses could be granted in lots to its inhabitants by its ayuntamiento, or alcaldes, or other officers succeeding to their powers; that the trusts upon which these lands were held were public and politi- 365 cal ill their nature, and as such had been, since the organi- zation of the State, under the control of the Legislature; that the Van Ness Ordinance and the confirmatory act of the Legislature vested in the persons therein descrihed a title to the lands mentioned, and that the city lield the lands, not already disposed of by herself, unatfected hy sheriff sales under executions against her. By this decision the title of the city to her puhlic squai-es, streets, sites for school-houses, city hall, engine-houses, and other puhlic huildings belonging to the corporation, and other lots reserved by the ordinance for public uses, was confirmed and established; and all persons occupying lands, not thus reserved, were quieted in their possessions, so far as any claim of the city or State was concerned. Prop- erty of vast value, to be estimated only by millions, was tlms secured to tlie city or to persons in possession. Li order to a complete settlement of the title, however, it was still necessary to obtain the action of the tribunals of the United States u^xni the claim made by the city as successor of tlie pueblo. As already stated, the appeal to the District Court from the decision of the Conmiissioners had not been acted u[>on. Bv the 5th section of the act of Congress, entitled "An act to expedite the settlement of titles to lands in the State of Cahfornia," passed July 1, 1864, all the right and title of the United States to land within the corpo- rate limits of San Francisco — as defined by its charter of 1851, with certain exceptions — were relinquished and granted to the city and its successors for the • uses and purposes specified in the Van Xess Ordinance.* Thus, whatever was essential to perfect the title to parties holding under that ordinance, and to the city, was com- pleted. That section was drawn by Judge Field. The exceptions enumerated related to lands previously or then occu[)ied by the United States for military, naval, and other pui'poses, or such parcels as might be subsequently 13 Stats, at Large, 333.. 366 designated for that purpose by the President within a year after the return to the Land Otfice of an approved plat of the city limits. But the claim of the city — as successor of the pueblo — was for a much greater quantity than the land embraced within the charter limits of 1851, and, by the 4th section of the act mentioned, authority was given to traiisfei- the case pending in the ])istrict Court to the Circuit Court of the TTnited States. The case was accord- ingly transferred in September, 1864, and it was decidefl in October of that yeai-. In deciding the case Judge Field gave the following opinion : " This case comes before this Court upon a transfer from the District Court under the act of Congress of July 1st, 1864, 'to expedite the set- tlement of titles to lands in the State of California.' It was in the Dis- trict Court on appeal from the decree of the Board of Land Commis- sioners, created by the act of March 3d, 1851. It involves the consider- ation of the validity of the claim asserted by the city of San Francisco to a tract of land situated in the county of San Francisco, and embracing so much of the peninsula, upon which the city is located, as will contain an area of four square leagues. " The city presented her petition to the Board of Laud Commissioners in July, 1852, asserting in substance, among other things, that, in pur- suance of the laws, usages, and customs of the government of Mexico, and the act of the Departmental Assembly of California of November, 1833, the Pueblo of San Francisco was created a municipal government, and became invested with all the rights, properties, and privileges of pu- eblos under the then existing laws, and with the proprietorship of the tract of land of four square leagues above described ; that the pueblo continued such municipality and proprietor until after the accession of the government of the United States, July 7th, 1846, and until the pas- sage of the act of the Legislature of the State of California incorporating the city ; and that she thereupon succeeded to the property of the pueblo, and has a good and lawful claim to the same. " In December, 1854, the Board of Commissioners confirmed the claim of the city to a portion of the four squai-e leagues, and rejected the claim for the residue. The land to which the claim was confirmed was bounded by a line running near the Mission of Dolores, and known as the Vallejo Line. That line was adopted principally in reliance upon the genuine- ness and authenticity of the document described in the proceedings as the Zamorano document. The si)uriousness of that document is now- admitted by all parties. From the decree of the Board an appeal was taken by the filing of a transcript of the proceedings and decision with 8r.T the clerk ol' ihe Distiiet Court. 'I'lii' apixal wiis liy statute Cor \hv l)en(- lit of tlie party against whom the decision was rendered- in tliis ease of both parties— of the United States, which controverted the entir.' claim, and of the city, which asserted a claim to a larger quantity of land— and both parties gave notice of their intention to prosecute the appeal. Af- terwards, in February, 1857, the Attorney-General withdrew the appeal on the part of the United States, and in March following, upon the stip- ulation ef the District Attorney, the District Court ordered that appeal to be dismissed, and gave leave to the city to proceed upon the decree of the Commission as upon a final decree. The case, therefore, remained in the District Court upon the appeal of the city alone, and that is its posi- tion here. But the proceeding in the District Court, being in the nature of an original suit, the prosecution of the appeal by either party keeps the whole issue open. ' The suit in the District Court,' said Mr. Justice Nelson in United States vs. Ritchie (17 How., 534), 'is to be regarded as an original proceeding — the removal of the transcript, papers, and evi- dence into it from the Board of Commissioners being but a mode of pro- viding for the institution of the suit in that Court. The transfer, it is true, is called an appeal ; we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The District Court is not confined to a mere re-examination of the case as heard and decided by the Board of Commissioners, but hears the case de novo, upon the papers and testimony which had been used before the Board, they be- ing made evidence in the District Court; and also upon such further evi- dence as either party may see fit to produce.' " But though the whole issue is thus open, the dismissal of the appeal on the part of the United States may very properly be regarded as an as- sent by the government to the main facts upon which the claim of the city rests, namely : the existence of an organized pueblo at the site of the present city upon the acquisition of the country by the United States on the 7th of July, 1846; the possession by that pueblo of proprietary rights in certain lands, and the succession to such proprietary rights by the city of San Francisco. The District Attorney does not, therefore, deem it within the line of his duty to controvert these positions, but on the con- trary admits them as facts in the case, contending only that the lauds appertaining to the pueblo were subject, until by grant from the proper authorities they were vested in private proprietorship, to appropriation to public uses by the Ibrmer government and, since the acquisition of the country, by the United States. He, therefore, insists upon an exception from the confirmation to the city of the land heretofore re- served or occupied by the government for public uses ; and I do not un- derstand that the counsel of the city objects to an exception of this character. " It is unnecessary, theretbre, to recite the historical evidence of the existence of a pueblo previous to, and at the date of, the acquisition of the country at the present site of the city of San Francisco, which is very 368 fully presented in the elaborate opinion tiled by the Commission on the rendition of its decision. Since that decision was made the question has been considered by the Supreme Court of the State ; and in an opinion in which the whole subject is examined a similar conclusion is reached ; and if anything were wanting in addition to the" arguments thus fur- nished, it is found in the able and exhaustive brief of the counsel of the city. The documents of undoubted authenticity, to which the opinions and the brief of counsel refer, establish beyond controversy the fact that a pueblo of some kind, having an Ayuntamiento composed of Alcaldes, Regidores, and other municipal officers, existed as early as 1834; and that the pueblo continued in existence until, and subsequent to, the ces- sion of the country. The action of the officers of the United States in the government of the city and the appointment or election of its magistrates after the conquest, both preceding and subsequent to the treaty of peace, proceeded upon the recognition of this fact ; and the titles to property within the limits of the present city to the value of many millions rest upon a like recognition. " The material question, therefore, for determination, as the case stands betbre this Court, relates to the extent of the lands in which the pueblo was interested. It is not pretended that such lands were ever marked off and surveyed by competent authority. It is admitted, as already stated, that the so-called Zamorano document, given in evidence, is spuri- ous. The question presented must, therefore, be determined by reference to the laws of Mexico at the date of the conquest. " As stated by the Commissioners in their opinion, there can be no doubt that by those laws, pueblos or towns, and tlieir residents, were en- titled to the use and enjoyment of certain lands within the prescribed limits immediately contiguous to and adjoining the town proper ; that this right was common to the cities and towns of Spain from their tirst organization, and was incorporated by her colonies into their municipal systetu on this continent ; and that the same continued in Mexico, with but little variation, after her separation from the mother country. And there is as little doubt that by those laws a pueblo or town, when once established and officially recognized, became entitled, for its own use and the use of its inhabitants, to four square leagues of land. The compila- tion known as the Beeopilacion de Leyes de las Indias contains several laws relating to this subject. The Sixth Law of Title Five, of Book Four, pro- vides lor the establishment of towns by contract with individuals, and upon compliance with the conditions of the contract, for the grant of four •square leagues of land, to be laid off in a s(|niij-e or prolonged form, ac- cording to the character of the country. " The opinioij of the Assessor or legal adviser of the Vice Royalty of New Spain given to theCommandante General in October. 1 785. upon the petition of certain settlers in Caliibrnia, for grants of tracts of land situ- ated within the limits claimed by pueblos, recognizes this right of pueb- los to have four square leagues as.signed to them. His language is that the grants ' (•ann( )t nor oll-ht to assigni'd t' (. each puH )1<), whicli Five, LilK'v • Four ol'lhc K'ccopila itliin the lionnd: ii'ics h the I,a' u Six, '1 ;itU! hiKJIK^ rij r iitiid I in 11 H(_i^» made to then I conforniily \ n, niiist- he J\ square or oblong body, according to the nature of tlie gromid ; l)ecausc the petition of the new settlers woukl tend to make them private owners of the forests, pastures, Avater, timber, wood, and other advantages of the lands which may be assigned, granted, and distributed to them, and to deprive their neighbors of these benclits. It is seen at once that their claim is entirely contrary' to the directions of tlie forcinentioned laws, and the express provision in Art. 8 of the Instructions lor Settlements (Poblaciones) in the Californias, according to wliieli all the waters, past- ures, wood, and timber, within the limits which in eoulbrniily to law may be allowed to each pueblo, must be for the common advantage — so that all the new settlers may enjoy and partake of them, maintaining thereon their cattle, and participating of the other benefits that may be Ijroduced.' " But the royal instructions of November, 1789, for the establishment of the town of Pitic, in the province of Sonora, is conclusive as to the right of pueblos in California under the laws of Spain. " The instructions were made applicable to all new towns that should be subsequently established within the general comandancia, which in- cluded the province of California. They gave minute directions for the formation and government of the new jiueblos, and referring to the laws of the Indies already cited, declared that there should be granted to tlie towns four leagues of land in a square or prolonged form. They also pro- vided lor the distribution of building and farming lots to settlers, the laying out of pasture lands and lands for ihc propios, the residue to con- stitute the egidos or commons for the u.se of the inhabitants. " The general provisions of the laws of the Indies, to which these in- structions and the opinion of the Assessor refer, continued in force in Mexico after her separation from Spain. They were recognized in the regulations of November, 1828, which were adopted to carry into effect the Colonization Law of 1824, and in the regulation of the Departmental Assembly of August, 1834, providing funds for towns and cities. They were referred to in numerous documents in the archives of the former government in the custody of the Surveyor-General. The report of Jimeno, for many years Secretary of the Govei-nment of California, Ibund in the expediente of Doiaa Castro made in February, 1844, is cited by the Commissioners in their opinion as removing all doubt on this point. The report is as follows : " ' Most Excellent Goverxoe. — Tlie title given to Doiia Castro is drawn, subject to the conditions that were inserted in many other titles during the time of Gen. Figueroa, in which they subjected the parties to pay census (taxes) if the land proved to belong to the etjidos of the town. " ' I understand that the town of Brancitbrte is to have for egidos of its population four square leagues, in conformity to the existing law of the .:]7o Kecopilufioi) of the India's, in volume tliesecoiul. folios 88 to 149. in whicli it mentions that to the new towns that extent may be marked, to whieh effect it would be convenient that your Excellency should commission two persons deserving your confidence, in order that accompanied by the Judge of the Town, the measurement indicated utay be made, and it may be declared for cgidos? of the town the four square leagues, leaving to the deliberation of your Excellency to free some of the grantees of the con- ditions to which they are subject. The supreme judgment of your Ex- cellency may resolve as it m{\y deem it convenient. "' Monterey, FeftrMflo-T/ 8f7i, 1844. Manuel Jimeno.' " The documeuts to which reference has been made are sufficient to establish the position that pueblos once formed and officially recognized as such, became by operation of the general laws entitled to have four square leagues of land assigned to them, for their irse and the use of their inhabitants. It does not appear that formal grants were made to the new pueblos, thougli in some instances an officer was appointed to mark off the boundaries of the four square leagues, and to designate the uses to which particular tracts should be applied. But the right of the pueblos and their inhabitants to the use and enjoyment of the lands was not made dependent upon such measurement and designation. " It tbllows from these views that the pueblo, which is admitted to have been regularly established at the site of San Francisco, on the sev- enth of July, 1846, was, as such pueblo, vested with the right to four square leagues of land, to be measured either in a square or prolonged form, according to the nature of the countrj', excepting from such tract such portions as had been previously dedicated to or reserved for public uses, or had become private property by grant from lawful authority. " It is difficult to determine with precision the exact character of tlie right or title held by pueblos to the lands assigned to them. The govern- ment undoubtedly retained a right to control their use and disposition, and to appropriate them to ]mblic uses until they had been vested in jmvate proprietorship. Numerous laws have been cited to show that the title remained absolutely in the government. The same laws were cited to the Supreme Court of this State when the subject was before that tri- bunal, and in relation to them the Court said: ' We see nothing in these laws opposed to the views we have already expressed, that the towns had such a right, title, and interest in these lands as to enable them to use and dispose of them in the manner authorized by law or by special orders, and consonant with the object of the endowment and trust. Undoubtedly the right of control remained in the sovereign, Avho might authorize or forbid any municipal or other officer to grant or dispose of such lands, even for the purpose of the endowment or trust. Such general right, with respect to a public corporation, exists in any sovereign State, and must, of ccmrse, have existed in the absolute monarchy of Spain, where the property of private corporations and individuals was to a great de- gree subject to the royal will and ))leasurc.' — \H()i).) Ami rcrcvriiiL!: to o])jo('ti()ns to the llioory of iibsoliitc tillo in tlic pneblo, and the cxuestions which upon that view might be suggested, the Court said : ' There is but one sensible answer to these questions, and we think that answer is given in the laws themselves, and in the recorded proceedings of the officers who administered them, and who must be pre- sumed to have interpreted them correctly. It is, that the. lauds assigned to pueblos, whether by general law regulating their limits to four leagues, or by special designation of boundaries, were not given to them in abso- Inte property, with full right of disposition and alienation, but to be held by them in trust for the benefit of the entire community, with such powers of use, disposition, and alienation, as had been already or might afterwards be conferred for the due execution of such trusts, upon such pueblos, or upon their officers.' — {Id., 573.) And this view, the Court adds, fully reconciles the apparently conflicting disposition of the laws and the commentaries of publicists respecting the relative rights of the Crown and the municipalities to which counsel had referred. " In this view of the nature of the title of the pueblo and of the city, its successor, I fully concur; and I am of opinion that under the provi- sions of the act of March 3d, 1851, the city is entitled to a confirmation of her claim. I regret that the recent transfer of the case to the Circuit Court, and the great pressure of other engagements since, have prevented me from considering at greater length the interesting questions presented. To those who desire to extend their inquiries, the elaborate opinions to Avhich I have made frequent reference, and the able brief of counsel will furnish ample materials. " A decree will be entered confirming the claim of the City of San Francisco to a tract of laud, situated in the county of San Francisco, and embracing so much of the peninsula upon which the city is located as will contain an area equal to four square leagues, as described in the pe- tition. From the confirmation will be excepted such parcels of land within said tract as have been heretofore reserved or dedicated to public use by the United States, or have been by grant from lawful authority vested in private proprietorship. The confirmation will be in trust for the benefit of lot-holders under grants from the pueblo, town, or city ; and as to any residue, in trust for the use and benefit of all the inhab- itants. A decree will be prepared by counsel in conformity with this opinion and submitted to the Court."* — (4 Sawyer, 559-67.) *The following extract is from the opinion of the Supreme Court of the State, in Hart vs. Burnett, reported in 15 California Reports : "On the third of November, 1834, the Territorial Deputation authorized the election of an Ayuntamiento, to re.side at the Presidio of San Francisco, to be composed of an Alcalde, two Regidores or Councilmen, and a Sindico-Procurator. This Ayunta- miento, when organized, was to exercise the political functions pertaining to such office, and the Alcalde was also to perform the judicial functions which the laws- con- ferred upon him. This decree was communicated to the Military Commandant by the (iovernor, on the fourth of November, 1834. An election was accordingly held on the seventh of December, 1834, at the Presidio of San Francisco, and the Ayunta- 25 372 A motion for ii rcliearing liaving been afterwards made, the decree entered was modified, and as final]}^ settled was not entei-ed until the 18th of May of the following- year, 1865. By it the claim of the city, subject to certain reservations, was confirmed to the extent of four square leagues embracing the northern portion of the peninsula, upon which the city is situated, above ordinary high-water mark in 1846, and bounded on the north and east by the Bay of San Francisco; on the west by the Ocean, and on the south by a due east and west line so as to include the area designated. The title, so confirmed, was declared to be in trust for the benefit of lot-holders nnder grants from the pueblo, town, city, or other competent authority, and as to any residue, in trust for the use and benefit of the inhabitants of tbe city. From this decree appeals were taken to the Supreme Court, both by the city and the United States; by the latter from the whole decree, and by the former from so much as included the reserva- tions in the estimate of the quantity of land confirmed. This appeal, in tlie ordinary course of the business of the Supreme Court, would not have been reached for two or miento duly installed. A similar election was held on the thtrteenth of December of the following year (1835), at the same place, which was then officialh' designated as the Pueblo of San Francisco. Other elections of the same character were subse- quently held; and there are numerous official documents, of undisputed authen- ticity, which refer to the 'Ayuntamiento of San Francisco,' the 'Alcalde of San Fran- cisco,' and to the 'Pueblo of San Francisco,' proving, as we think, beyond a doubt, that there was at that place, in 1834, 1835, 1836, and subsequently, a pueblo of some kind, with an Ayuntamiento composed of Alcaldes, Regidores, and other municipal officers. What were the rights of this municipality, and what the powers of its offi- cers, and the extent of its territory and jurisdiction, we shall not now inquire. We here refer merely to the fact of the existence, at that time and at that place, of such an organization, whether corporate or incorporate. And that fact is proved by the official returns of elections, by the official acts of the Governor and of the Territorial or Departmental Legislature, by the official correspondence of government officers, and by the acts, proceedings, records, and correspondence of the officers of the pueblo itself. As a part of the evidence of this fact, we refer to the election returns of December 7th, 1834, December 13th, 1835, December 3d, 1837, and December 8th, 1838; to the Governor's letters of January 31st, 1835, October 26th, 1835, January 19th, 1836, January 17th, 1839, and November 14th, 1843 ; to the expediente of proceedings between May and November, 1835, with respect to certain persons obliged to serve as municipal officers of that pueblo ; and to the official correspondence between, the Alcaldes of that pueblo and the various offipers of the Territorial or Pepartmental Government of California." — (15 Cal., 540.) tliroo yo;i rs; and inasimicli as the dccrtH' ol' the Cii'cuit Court was found to i;"ive veiy ,ii;Gueral satisfaction, and a desire was freely ex[)i-esscd that a tinal end of this litiija- tion he arrived at on the l>asis ol' lliat (U'cree, Jud^'e Fiehl prepared a hill, which was introduced and passed h^^ the united assistance of the whole delegation in Congress from California and Xevada, quieting the title of the city to all lands emhraced within the decree of contirniation. This act of Congress hecanie a law on the 8th of March, 18()<;. By it all the right and title of the United States to the land embraced in the decree of the Circuit Court were relinquished and granted to the city, and its claim to the land was contirmed, suhject to certain exceptions and reservations, and upon trust that all the lands not previously granted by tlie city, should be disposed of and conveyed by it to the parties in the bona-fide actual pos- session thereof, by themselves or tenants, on the pass- age of the act, in such quantities and upon such terms and conditions as the Legislature of the State might pre- scribe, except such parcels as might be reserved and set apart by ordinance of the city foi" pul)lic uses. Shortly afterwards the appeals to the Supreme Court were dis- missed by stipulation of the parties, and the Htigation over the source of title to tlie lands witliin the city was thus settled and closed. As has been adjudged by the Su- preme Court of the United States, the title to the lands within the four square leagues rests upon the decree of the Circuit Court, and this confirmatory act of Congress. In several cases in the Circuit Court and in the Supreme Court of the United States, in which the opinions were delivered by Judge Field, the positions settled by this de- cision, viz., the existence of a pueblo at the site of the city of San Francisco at the time the country was acquired b}^ the United States; the possession by it of certain proprie- tary rights to land, and the succession to them of the present city, are either impliedly recognized or directly asserted. The followins; are the cases in the Circuit Court: ^74 Grisar vs. McDowell (4 Sawyer, 599); United States vs. Hare (Ibid., 653); United States vs. Carr (3 Ibid., 481); and Tripp vs. Spring (5 Ibid., 219). The following are the cases in the Supreme Court : Townsend vs. Greely (5 Wall., 326 ); Grisar vs. McDowell (6 Ibid., 363 ); and Trenouth vs. San Francisco (10 Otto, 251). The fifth section of the act of July 1, 1864, " to expedite the settlement of titles to lands in the State of California," mentioned above, is as follows : " Sec. 5. And be it further enacted, That all the right and title of the United States to the lands within the corporate limits of the City of San Francisco, as defined in the act incorporating said city, passed by the Legislature of the State of California on the fifteenth of April, one thou- sand eight hundred and fifty one, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinance of said city, ratified by an act of the Legislature of the said State, approved on the eleventh of March, eighteen hundred and fifty- eight, entitled ' An act concerning the City of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' there being excepted from this relinquishment and grant all sites or other par- cels of lands which have been, or now are, occupied by the United States for military, or other public uses, [or such other sites or parcels as may hereafter be designated by the President of the United States, within one year after the rendition to the General Land Ofliee, by the Surveyor- General, of an approved plat of the exterior limits of San Francis^, as recognized in this section, in connection with the lines of the public sur- veys : And provided, That the relinquishment and grant by this act shall in no manner intefere with or prejudice any bona-fide claims of others, whether asserted adversely under rights derived from Spain, Mexico, or the laws of the United States, nor preclude a judicial examination and ad- justment thereof"] — (13 Stats, at Large, 333.) The part included within brackets was inserted at the request of the Commissioner of the General Land Office. No map, such as is there mentioned, was ever sent to the General Land Office. The only map made was of the land subsequently confirmed to the city. Nor were any reservations ever made by the War Department. This section was, as stated above, drawn by Judge Field, but the honor of securing its passage, with the rest of the act, is due to Senator Conness, 375 The act of Maivli 8tli, 1S(;n, ontitlod "An act to (juict the title to certain lands within thr corpoi-atc limits ol'the cit}' of iSan Francisco/' is as follows: "Be it enacted by the Senate and House of Eepremitativen of the Vnited States of America in Congress assemhkd, That all the right and title of the United States to the land situated within the corporate limits ol" the city of San Francisco, in the State of California, confirmed to the city of San Francisco by the decree of the Circuit Court of the United States for the Northern District of California, entered on the eighteenth day of May, one thousand eight hundred and sixty-five, be, and the same are hereby, relinquished and granted to tlie said city of San Francisco and its successors, and the claim of the said city to said land is hereby conlirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely : that all the said land, not heretofore granted to said city, shall be disposed of and con- veyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the Legislature of the State of California may prescribe, except such parcels thereof as may be reserved and set apart by ordinance of said vitj for public uses : Provided, how- ever, That the relinquishment and grant by this act shall not interfere Avith or' prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from Spain, Mexico, or the United States, or preclude a judicial examination and adjustment thereof. — (14 Stat, at Large, 4.)" The bill for this act was, as stated above, also drawn by Judge Field. He gave it to Senator Conness, who took charge of it in the Senate, and through his iniiuence it was passed bj' that body. In the House, Mr. McRuer took charge of it, and, with the aid of tlie rest of the State del- egation, and of the delegation from K'evada, its passage there w^as secured. The appeals to the Supreme Court of the United States from the decree in the Pueblo Case being dismissed after the passage of this act, as stated above, the municipal au- thorities proceeded, under its provisions, to set apart lands for school-houses, hospitals, court-house buildings, and other public purposes, and, through their exertions, second- ed and encouraged by Mr. McCoppin, the very able and effi- cient Mayor of the city at that time, a park was laid out 376 upon the Ocean and the Golden Gate, which is known as the Ocean Park, and which, in time, will be one of the finest parks in the world. But inasmuch as, in many cases, the ground taken for public purposes and for the park, was occupied by settlers or had been purchased by them, an assessment was levied by the city, with the approval of the Legislature, upon other lands conveyed to the occupants, as a condition of their receiving the deeds of the city, and tlfe moneys obtained in this way were applied to compensate those whose lands had been thus ap[»ro- priated. The Chinese in California, and the Legislation of the State and of the City of 8an Francisco against them. The pi'esence of Chinese in CaHturnia, and the constant immigi'ation of them into the State, has created a great deal of irritation with its inhabitants of other races, and has led, not only to much inflammatory declamation, but to legislation — State and municipal — in conflict with the Constitution of the United States, and which, if it should be carried out, would involve the destruction of the most important powers of the General Governuient, The Constitution vests in Congress the power to regu- late commerce with foreign nations, and that includes the transportation of persons as well as goods. Congress alone can determine the conditions upon which foreigners shall be permitted to land and remain in the country. The State may, indeed, as a matter of self-preservation, exclude convicts, paupers, persons having contagious or incurable diseases, or likely to become a charge upon it. Whatever legislation is required for any thing further must proceed from Congress. Except in the cases men- tioned, its power is absolute and exclusive. Yet the legis- lation. l)oth (_)f the State and of the city of San Francisco, 377 agaiiist the Cliinese, has heeii in dircM-t (lisrei;"ai'(l ol' this well-settled doctrine of coiistitutioiuil law. Again, the President and Senate oi' the United States are vested exclusively with the d^'atv-making power of the government. That j)()\ver extends to all subjects of foi-- eign commerce, to all forms of intercourse w^th foreign nations, and may prescribe the rights and privileges which shall be accorded to their citizens or sabjects. By treaty, the conditions upt)n wliich foreigners shall be allowed to i-eside, do business, purchase and bold ])ro[)eiiy in tbe countiT, may be designated. And the Constilution de- clares that '-all treaties made or which shall be made under the authority of the United States, shall be the su- preme law of the laud." As will be seen hereafter, the legislation — State and municipal— of Cahfornia, has been directly in the face of the express and positive stipula- tions of our treaties with China. Again, the Fourteenth Amendment of the Constitution declares that no State shall deny to (unj person within its jurisdiction " the equal protection of the laws "—a provi- sion which makes equality before the law the constitu- tional right of everii person wuthin the territory of the United States, fi-om whatever country he may have come, or from whatever race he may have descended. Yet the legislation — State and municipal— of California against the Chinese has been in open and flagrant disregard of this command. So palpable has been this disi-egard that no just man in his senses could deny it. For some centuries previously to the present one, the policy of China was to exclude intercourse with foreign nations, except for purposes of trade at a few designated ports. All entrance into the interior of the country, and even trading, except at the points designated, was strictly forbidden, and the law imposing the prohibition was rig- orously enforced. Many attempts were made by Euro- pean nations to induce the Chinese government to make treaties with them, but approaches of the kind were gen- 378 erally repelled, or the reception of ministers was alTowed only on condition of performing such acts of humiliation as few nations would permit. In August, 1842, as the result of the war between Eng- land and China, caused by the seizure by the Chinese gov- ernment of opium imported in violation of its laws by the East India Company, a treaty was signed between them providing for •' lasting peace and friendship between them," and also the payment by China to England of twenty-one millions of dollars. Americans, ever since their independence, had carried on trade with China, and had at this time a factory at Canton. They had no trouble with the Chinese people or the government, and all that the Chinese government had yielded by compulsion to the Enghsh, it freely granted to them by a treaty made July 13th, 1844, negotiated on be- half of the United States by our minister, Caleb Cushing. This treaty was ratified in December of the following year. It opens by stating that " The United kStates of America and the Ta Tsing Empire, desiring to establish firm, lasting, and sincere friendship between the two na- tions, have resolved to fix, in a manner clear and positive, by means of a treaty or general convention of peace, amity, and commerce, the rules which shall in future be mutually observed in the intercourse of their respective countries." And it declares, in its first article, that "there shall be a perfect, permanent, and universal peace, and a sincere and cordial amity between the United States of America, on the one part, and the Ta Tsing Empire, on the other part, and between their people, respectively, without excep- tion of persons or places." And, in article nineteen, that " all citizens of the United States in China, peaceably at- tending to then' aftairs, being placed on a common footing of amity and good-will with subjects of China, shall re- ceive and enjoy, for themselves and everything a[iper- taining to them, the special protection of the local authuri- 870 ties of government, who shall (lofend them iVoiii all insiiK or injury of any sort on the part of the (liinesc. ll' their dwellings or property he threatened or attacked by niohs, incendiaries, or other violent or lawless persons, the local officers, on recjuisition of the consul, will immediately despatch a military force to disperse the rioters, and will apprehend the guilty individuals and pimish them with the utmost rigor of the law." There is, throughout this treaty, an unusual and studied warmth of expression, and its thirty-four articles are all in favor of Americans. There is not one securing any special right or advantage to China, and no complaint has heen made that a single article has ever been violated. The peace between England and China, following the enforced treaty between those two countries, was not real. There were continued riots at Canton, and in May, 1af, (hiiuh, hlind, crippled, or infn-ni and not ar- eonipanied by atiy felativc ahle to siippijrt them, of K'wd or abandoned women.'' Otic section, as amended in 1874, required " the Commissioner of Imtnigration 'to satisfy himself whether or not any passenger who shall arrive in this State by vessels from any foreign port or place (who is not a citizen of the United States), is luna- tic, idiotic, deaf, dumb, blind, crippled or intinn, and is not accompanied by relatives who are able and willitig to support him, or is likely to l)econie permanently a public charge, or has been a pauper in any other country, or is, from sickness or disease, existing either at the time of sailing from the port of departure, or at the time of his arrival in this State, a public charge, or likely to become so, or is a convicted crimittal, or a lewd or debauched wo- man ;' atid then declare that ' no person who shall belong to either class, or who possesses any of the intirtnities or vices specified herein, shall be permitted to land in this State, unless the master, owtier, or consignee of said vessel shall give a joint and several bond to the people of the State of Cahfornia, in the penal sum of five hundred dol- lars, in gold coin of the United States, conditioned to in- demnify and save harmless every county, city and county, town and city of this State against all costs and expenses which may be by them necessarily incurred for the relief, support, medical care, or an}^ expense whatever, resulting from the infirmities or vices herein referred to, of the per- sons named in said bonds, within two years from the date of said bonds; . . . and if the master, owner, or con- signee of said vessel shall tail or refuse to execute the bond herein required to be executed, they are required to retain such persons on board of said vessel until said ves- sel shall leave the port, and theti convey said passengers from this State; and if said ntaster, owner, or consignee 884 shall fail or refuse to perform the dntj and service last herein enjoined, or shall permit said passengers to escape from said vessel and land in this State, they shall forfeit to the State the sum of five hundred dollars, in gold coin of the United States, for each passenger so escaped, to be recovei-ed by suit at hiw.' " Under the provisions of this section the case of Ah Fong, a Chinese woman, came before the Circuit Court on writ of habeas corpas. The case was as follows: The petitioner, a sul)ject of the Emperor of China, arrived at the port of San Fran- cisco as a passenger on board the American steamsliip "Japan," owned by the Pacific Mail Steamship Company, under the command, as master, of J. H. Freeman, in Au- gust, 1874. On the arrival of the steamship she was boarded by the Commissioner of Immigration of Cah- fornia, who proceeded, under tlie provisions of the above statute, to examine into the character of the petitioner and of other alien passengers. Upon such examina- tion the C/ommissioner found, and so declared, that the petitioner and twenty-one other persons, also subjects of the Empire of China, arriving as passengers by the same steamship, were lewd and debauched women. He there- upon prohibited the mastor of the steamship from land- ing the women, uidess he or the owner or consignee of the vessel gave the bonds required by the statute. iSTei- ther of the parties designated would consent to give the required bonds, and the women were consequently de- tained by the master on board of the steamship. The}^ thereupon applied for a writ of habeas corpus to a District Court of the State, to inquire into the cause of their de- tention, alleging in their petition its illegality, on the ground that the statute under which they were held was in contravention of the treaty between the United States and the Empire of China, and in conflict with the Con- stitution of the United States, and denying, also, that they were eitlier lewd or debauched women. The District :W5 Court granted the iipplicutioii and licai'd llic [jctitioners, and after the lieai'ing-, remanded tlieni hack to the charge of the master of tlie steamshi]), Imhling tliat the statute of California was neither in Niohition of the-trt-atj or the Constitution, and that the evidence presented justified the finding of the Commissioner, that the petitioners were lewd and debauched women. Tlie petitioners tliereupon applied to the Chief Justice of the State for another writ of habeas corpus, alleging the illegality of their restraint, on grounds similar to those taken in tlie petition to tlio District Court, and also alleging tliat they were, since the order of the District Court remanding them to the custody of the master of the steamship, about to be forcibly re- turned to China against their will and consent. They therefoi'e prayed that with the writ of hnheas corpus a warrant might issue to the Sherifi" of the city and county of San Francisco to take them into his custody. The Chief Justice granted the writ, returnalJe before the Supreme Court of the State, and at the same time issued a warrant commanding the Coroner of the city and county to take the parties into his custody. Under this warrant the parties were taken into the cus- tody of the Coroner and brought before the Court, which sustained the ruling of the District Court, and denied the application of the parties to be discharged. It further di- rected that the Coroner should return the parties to the master or owner or consignee of tlie steamship Japan, on board of the steamship, and required such master, owner, or consignee to retain the parties on board of the steam- ship until she should leave the port of San Francisco, and then to carry tliem beyond the State. Its order also provided, that in case the steamship J(/paa was not in the port of San Francisco, the Coroner should retain the parties in his possession until the arrival in port of the steamship, and then enforce the order re- turning the parties to the vessel, or retain the parties until the further directi<^n of the Court. 38() The petitioner was one of the women thus held l)y the Coroner, and she invoked the aid of tlie Circuit Court to be released from her restraint, alleging, as in the other ap- plications, that the restraint was illegal, that the statute which is supposed to authorize it was in contravention of the treatj' with China and the Constitution of the United States, and averring that she was not within either of the classes designated in the statute. It further appeared from the special traverse to the return of the Coroner, and was admitted by counsel, that since the judgment of the Su- preme Court, the steamship Japan had sailed from tiie port of San Francisco, and would not probably return under three months, and that Freeman had been discharged from the service of the steamship company, and was no longer master of the Ja.pan. The case was heard in the Circuit Court by Judge Field, assisted by Judges Sawj^er and Ilofi'maii. There was no evidence presented to the Court that the women were lewd or abandoned women, except that the Commissioner of Immigration had so concluded, and it was stated that he came to such conclusion from their general appearance and the particular sleeves they wore as part of their dress. It was not pretended or suggested that the Commissioner had taken any testimony upon the subject, or had any information whatever, except from personal observation of them, to govern his action in the matter ; and, in point of fact, two of the women were wives of persons at tlie time in the employment of Mr. William C. Ralston, the cashier of the Bank of Califor- nia, at his residence at Belmont. He so stated to the pre- siding judge, and ofiered his athdavit to that effect, with that of his servants. There is no doubt that a State, in the interest of decency and morality, may exclude from its borders lewd and al^an- doned women who persist in following prostitution, but in every governmerit which makes any pretence of ati-'ording security against wanton accusation, some evidence of sudi ;}S7 purpose slionld bo produced more tlinii the inerc^ si'iiess or infereiiee of :i ('(^minissiouer of liuini^-rntion, from per- sonal iiispt'etioii of the parties whilst walking- over the deek of a vesseL The law of ( 'afiforDia in this ease (as will be seen) confounded all distinctions, and opened the door to the greatest oppression and cruelty. Tn deciding \\\o case, after stating the provisions of tlu^ section quoted, Judge Field gave the following opinion: " In re Ah Fong. " The decision of the District Court, and of the Supreme Court of the State, although entitled to great respect and consideration from the ac- knowledged ability and learning of their judges, is not binding upon this Court. The petitioner being an alien, and a subject of a country having treaty relations with the government of the United States, has a right to invoke the aid of the federal tribunals for her protection, vrhen her rights, guaranteed by the treaty, or the Constitution, or any law of Con- gress, are in any i-espect invaded ; and is, of course, entitled to a hearing upon any allegation in proper form that her rights are thus invaded. "I proceed, therefore, to the consideration of the questions presented, notwithstanding the adjudications of the State tribunals." Here the Judge quoted the provisions of the section given above, and continued as follows : " The provisions of this section are of a very extraordinary character. They make no distinction between the deaf, the dumb, the blind, the crippled, and the infirm, who are poor and dependent, and those who are able to support themselves and are in possession of wealth and all its appliances. If they are not accompanied by relatives, both able and willing to support them, they are prohibited from landing within the State, unless a specified bond is given, not by them or such competent sureties as they may obtain, but by the owner, master, or consignee of the vessel. Neither do the provisions of the statute make any distinc- tion between a present pauper, and one who has been a pauper, but has ceased to be such. If the emigrant has ever been within that unfortnate class, notwithstanding he may have at the time ample means at his com- mand, he must obtain the designated bond or be excluded from the State. They subject also to the same condition, and possible exclusion, the passenger whose sickness or disease has been contracted on the pas- sage, as well as the passenger who was sick or diseased on his departure from the foreign port. It matters not that the sickness may have been produced by exertions for the safety of the ship or passengers, or by at- tentions to their wants or health. If he is likely on his arrival to be- 20 888 coiiie a public charge, he nuist obtain the bond designated, or be denied a landing within the State. Nor does the statute make any distinction between the criminal convicted for a misdemeanor, or a felony, or lor an oflteuce malum in se, or one political in its character. The condemned patriot, escaping from his prison and fleeing to our shores, stands under the law upon the same footing with the common felon who is a fugitive from justice. Nor is there any difference made between the woman, whose lewdness consists in private unlawful indulgence, and the woman who publicly prostitutes her person for hire, or between the woman de- bauched l)y intemperance in food or drink, or debauched by the loss of her chastity. "_A statute thus sweeping in its terms, confounding by genei'al desig- nation persons widely variant in character, is not entitled to any verj^ high commendation. If it can be sustained as the exercise of the police power of the State as to any persons brought within any of the classes designated, it must be sustained as to all the persons of such class. That is to say, if it can be sustained when applied to the infirm, who is poor and dependent, when unaccompanied by his relatives, able and willing to support him, it must be sustained when applied to the infirm, who is surrounded by wealth and its attendants, if he is thus unaccompanied. If it can be sustained when applied to a woman whose debauchery consists in the prostitution of her person, it must be sustained when applied to a woman whose debauchery consists in her intemperance in food and drink ; and even when applied to the repent- ant Magdalen, who has once yielded to temptation and lost her virtue. The Commissioner of Immigration is not empowered to make any dis- tinction between persons of the same class; and there is nothing on the face of the act which indicates that the Legislature intended that any distinction should be made. " It is undoubtedlj' true that the police power of tlie State extends to all matters relating to the internal government of the State, and the ad- ministration of its laws, which have not been surrendered to the General Government, and embraces regulations affecting the health, good order, morals, peace, and safety of society. Under this power all sorts of re- strictions and burdens may be imposed, having for their object the ad- vancement of the welfare of the people of the State, and when these are not in conflict with established principles, or any (•onstitutional prohibi- tion, their validity cannot be questioned. ■' It is equally true that the police power of the State may be exercised by precautionary measures against the increase of crime or pauperism, or the spread of infectious diseases from persons coming from other coun- tries ; that the State may entirely exclude convicts, lepers, and persons afflicted w-ith incurable disease; may refuse admission to paupers, idiots, and lunatics and others, who from physical causes are likely to become a charge upon the public, until security is afforded that they will not be- come such a charge; and may isolate the temporarily diseased until the ;5s<) (laiiiicr of coiita.iiion is fionc. The leuality of procaiilionary moasnrcs of this kind has never been doubted. Tlie rif^ht of the State in this respeet has its foundation, as observed by Mr. Justice (Jrier in the Passenger Cases, in thesaeitd hiw of self-(h'frnc<\ whicli no jiower <>ranted to Con- <;ress can restrain or annul. •• But tlu> extent of tlu' jiower of tlie Slate to excluih' a foreigner from its territory is limited by tlie riglit in witieh it had its origin, the rijilit of self-defence. Whatever outside of the h'gitimat<" exercise of this right atYects the intercourse of foreigners with our people, their immigration to this country and residence therein, is exclusively within the jurisdiction of the Ceueral (Tovernment, and is not subject to State control or inter- ference. To that government the treaty-making power is confided ; also the power to regulate commerce with foreign nations, which includes in- tercourse with them as well as traffic ; also the power to prescribe the coiulitions of migration or importation of persons, and rules of naturali- zation : whilst the States are forbidden to enter into any treaty, alliance, or confederation with other nations. " I am aware that the right of the State to exclude from its limits any persons whom it may deem dangerous or injurious to the interests and Avellare of its citizens, has been asserted by eminent judges of the Su- preme Court of the United States. Mr. Chief Justice Taney maintained the existence of this right in his dissenting opinion in the Passenger Cases, and asserted that the power had been recognized in previous de- cisions of the Court. The language of the opinion in the case of the City of New York vs. ]\Iiln (11 Peters, 141) would seem to sustain this doc- trine. But neither in the Passenger Cases nor in the case of the City of New York vs. Miln, did the decision of the Court require any considera- tion of the power of exclusion which the State possessed ; and all that was said by the eminent judges in those cases upon that subject, was ar- gumentative and not necessary and authoritative. " But independent of this consideration, we cannot shut our eyes to the fact that much which was formerly said upon the power of the State in this respect, grew out of the necessity whicli the Southern States, in which the institution of sla\ ery existed, felt of excluding free negroes from their limits. As in some States negroes were citizens, the right to exclude them from the Slave States could only be maintained by the as- sertion of a power to exclude all persons whom they might deem dan- gerous or injurious to their interests. But at this day no such power would be asserted, or if asserted, allowed in any Federal Court. And the most serious consequences affecting the relations of the nation with other countries might, and undoubtedly would, follow from any attempt at its exercise. Its maintenance would enable any State to involve the nation in war, however disposed to peace the people at large might be. " Where the evil apprehended by the State from the ingress of for- eigners is that such foreigners will disregard the laws of the State, and thus be injurious to its peace, the remedy lies in the more vigorous en- 390 forcement of the laws, not in tlie exclusion of the parties. Gambling is considered by most States to be injurious to the morals of their people, and is made a public offence. It would hardly be considered as a legiti- mate exercise of the police power of the States to prevent a foreigner who had been a gambler in his own country from landing in ours. If, after landing, he pursues his former occupation, fine him, and, if he per- sists in it, imprison him, and the evil will be remedied. In some States the manufacture and sale of spirituous and intoxicating liquors are for- bidden and punished as a misdemeanor. If the foreigner coming to our shores is a manufacturer or dealer in such liquors, it would be deemed an illegitimate exercise of the police power to exclude him, on account of his calling, from the State. The remedy against any apprehended manufacture and sale would lie in such case in the enforcement of the penal laws of the State. So if lewd women, or lewd men, even if the latter be of that baser sort, who, when Paul preached at Thessalonica, set all the city in an uproar, (Acts xvii., verse 5,) land on our shores, the remedy against any subsequent lewd conduct on their part must be found in good laws, or good municipal regulations and a vigorous police. " It is evident that if the possible violation of the laws of the State by an emigi-ant, or the supposed immorality of his past life or profession, where that immorality has not already resulted in a conviction for a felony, is to determine his right to land and to reside in the State, or to pass through into other and interior States, a door will be opened to all sorts of oppression. The doctrine now asserted by counsel for the Commissioner of Immigration, if maintained, would certainly be invoked, and at no distant day, when other parties, besides low and despised Chi- nese women, are the subjects of its application, and would then be seen to be a grievous departure from principle. " I am aware of the very general feeling prevailing in this State against the Chinese, and in opposition to the extension of any encouragement to their immigration hither. It is felt that the dissimilarity in physical characteristics, in language, in manners, religion, and habits, will always prevent any possible assimilation of them with our people. Admitting that there is gi-ound for this feeling, it does not j ustify anj' legislation for their exclusion, which might not be adopted against the inhabitants of the most favored nations of the Caucasian race, and of Christain faith. If their further immigration is to be stopped, recourse must be had to the Federal Government, where the whole power over this subject lies. The State cannot exclude them arbiti-arily, nor accomplish the same end by attributing to them a possible violation of its municipal laws. It is certainly desirable that all lewdness, especially when it takes the form of prostitution, should be suppressed, and that the most stringent meas- ures to accomplish that end should be adopted. But I have little respect for that discriminating virtue which is shocked when a frail child of China is landed on our shores, and yet allows the bedizened and painted harlot of other countries to parade our streets and open her hells in broad (hxy, without molestation and without censure. 391 " By the Sth article of the treaty between the United States ami Cliina, adopted on the 2Sth of Jnly, 1868, the United States and the Emperor of China recognize the inherent and inalienable right of man to change his home and allegiance, and also the mntual advantage of the free mi- gration and emigration of their citizens and subjects respectively from the one country to the other, for purposes of curiosity, of trade, or as per- manent residents. The Gth article declares that citizens of the United States visiting or residing in China shall enjoy the same privileges, im- munities, or exemptions in respect to travel or residence as may there be enjoyed by citizens or subjects of the most favored nation. And, recip- rocally, that Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions in re- spect to travel or residence as may there be enjoyed by citizens or sub- jects of the most favored nation. " The only limitation upon the free ingress into the United States and egress from them of subjects of China is the limitation which is applied to citizens or subjects of the most favored nation ; and as the General Gov- ernment has not seen tit to attach any limitation to the ingress of sub- jects of those nations, none can be applied to the subjects of China. And the power of exclusion by the State, as we have already said, extemls only to convicts, lepers and persons incurably diseased, and to paupers and persons who, from physical causes, are likely to become a public charge. The detention of the petitioner is, therefore, unlawful under the treaty. " But there is another view of this case equally conclusive for the dis- charge of the petitioner, which is founded upon the legislation of Con- gress since the adoption of the Fourteenth Amendment. That amend- ment in its first section designates who are citizens of the United States, and then declares that no State shall make or enforce any law which abridges their privileges and immunities. It also enacts that no State shall deprive any person (dropping the distinctive designation of citizens) of life, liberty, or property without due process of law ; nor deny to any jjcrson the equal protection of the laws. The great fundamental rights of all citizens are thus secured agaiu.st any State deprivation, and all per- sons, Avhether native or foreign, high or low, are, whilst within the juris- diction of the United States, entitled to the equal protection of the laws. Discriminating and partial legislation, favoring particular persons, or against particular persons of the same class, is now prohibited. Equality of privilege is the constitutional right of all citizens, and equality of pro- tection is the constitutional right of all persons. And equality of protection implies not only equal accessibility to the Courts for the prevention or re- dress of wrongs and the enforcement of rights, but equal exemption, with others of the same class, from all charges and burdens of every kind. Within these limits the power of the State exists, as it did previously to the adoption of the amendment, over all matters of internal police. And within these limits the act of Congress of May 31st. 1870, restricts the action of the State with respect to foreigners immigrating to our country. 39t2 ' No tax or cluuge,' .siiys the act, ' shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed or enforced u^jon every person immigrating to such State from any other foreign country, and any law of any State in conflict with this provision is hereby declared null and void.' — (16 Statutes at Large, 144.) ■' By the term c/iar(/c, as here used, is meant any onerous condition, it being the evident intention of the act to prevent anj^ such condition from being imposed upon any person immigrating to the country, which is not equally imposed upon all other immigrants, at least upon all others of the same class. It was passed under and accords with the spirit of the Fourteenth Amendment. A condition which makes the right of the im- migrant to land depend upon the execution of a bond by a third party, not under his control and whom he cannot constrain by any legal proceed- ings, and whose execution of the bond can only be obtained upon such terms as he may exact, is as onerous as any charge which can well be im- posed, and must, if valid, generally lead, as in the present case, to the ex- clusion of the immigrant. " The statute of California, which we have been cwer to commute with you for all this lor any sum I may choose to take in cash. I am open to an olYer, but you must remem- ber that twenty per cent, of all I can get out of you goes into my own pocket, and the remainder into the treasury of California " Individual foreigners, however distinguished at home for their social, their literary, or their political character, are helpless in' the presence of this potent Commissioner. Such a person may offer to furnish any amount of surety on his own bond, or deposit any sum of niouey, but the law of California takes no note of him. It is the master, owner, or consignee of the vessel alone whose bond can be accepted. And so a silly, an obsti- nate, or a wicked Commissioner, may bring disgrace upon the whole country, the enmity of a powerful nation, or the loss of an equally pow- erful friend. '• While the occurrence of the hypothetical case just stated may be highly improbable, we venture the assertion that if citizens of our own government were treated by any foreign nation as subjects of the Em- peror of China have been actually treated under this law, no Admin- istration could withstand the call for a demand on such government for redress. "Or, if this plaintift' and her twenty companions had been subjects of the Queen of Great Britain, can any one doubt that this matter would have been the subject of international inquiry, if not of a direct claim for redress ? Upon whom would such a claim be made ? Not upon the State of California, for by our Constitution she can hold no exterior rela- tions with other nations. It would be made upon the government of the United States. If that government should get into a difficulty which would lead to war or to suspension of intercourse, would California alone suffer, or all the Union ? If we should conclude that a pecuniary indem- nity was proper as a satisfaction for the injury, would California pay it, or the Federal Government? If that government has forbidden the States to hold negotiations with any foreign nations, or to declare war, 394 and has taken the whole subject of these relations upon herself, has the Constitution, which provides for this, done so foolish a thing as to leave it in the power of the States to pass laws whose enforcement renders the General Government liable to just reclamations which it must answer, while it does not prohibit to the States the acts for which it is held re- sponsible ? " The Constitution of the United States is no such instrument. The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress and not to the States. It has the power to regulate commerce with foreign nations ; the respon- sibility for the character of those regulations and the manner of their execution belongs solely to the National Government. If it be otherwise, a single State can at her pleasure embroil us in disastrous quarrels with other nations. "We are not called upon by this statute to decide for or against the rigiit of a State, in the absence of legislation by Congress, to protect her- self by necessary and proper laws against paupers and convicted crimi- nals from abroad, nor to lay down the definite limit of such right, if it exist. vSuch a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a State statute, limited to provisions necessary and appropriate to that object alone, shall in a proper controversy come before us, it will be time enough to decide that question. The statute of California goes so far beyond what is necessary or even appropriate for this purpose, as to be wholly without any sound definition of the right under which it is supposed to be justified " The money when paid does not go to any fund for the benefit of im- migrants, but is paid into the general treasury' of the State and devoted to the use of all her indigent citizens. The blind, or the deaf, or the dumb passenger is subject to contribution, whether he be a rich man or a pauper. The patriot seeking our shores, after an unsuccessful struggle against despotism in Europe or Asia, may be kept out because there his resistance has been adjudged a crime. The woman whose error has been repaired by a happy marriage and numerous children, and whose loving husband brings her with his wealth to a new home, may be told she must pay around sum before she can land, because it is alleged that she was debauched by her husband before marriage. Whether a young woman's manners are such as to justify the Commissioner in calling her lewd may be made to depend on the sum she will pay for the privilege of landing in San Francisco. " It is idle to pursue the criticism. In any vieAV Avhich we can take of this statute it is in conflict with the Constitution of the United States, and, therefore, void." The legislation of the city of San Francisco against the Chinese has heen equal to that of the State, and much iDore offensive in its character. 895 In July, 1870, an ordinance of llio city and county was passed regulating lodging-liouses. Section one required that every house, room, or apartment, except of prisons, occupied as a lodging, in which persons lived or slept, should contain within the walls of such house, room, or apartment, at least iive hundred cuhic feet of air for each adult person dwelling or sleeping therein; and that any owner or tenant of a house, room, or a[)artment, who should lodge or permit to he lodged in such room or apart- ment more than one person to every live hundred cuhic feet of air, should 1)C deemed guilty of a misdemeanor, and for every otience should he tined not less than ten nor more than five hundred dollars, or he imprisoned in the city prison not less than five days nor more than three months, or he punished hoth by such fine and imprison- ment. The ordinance also im})Osed the same penalty on each occupant of any such room or apartment. In Alay, 1873, a large numljer of Chinese in San Fran- cisco were arrested under this oi'dinance, and a fine of ten dollars inflicted on each of them. The parties fined in most cases preferred to go to jail rather than to pay the fine. By a law of the State an imprisonment for one day works a discharge of a fine to the amount of two dollars. Of this action of the Chinese, the Eccinnr/ Bulletin, a lead- ing joui'nal of San Francisco, thus speaks in its edition of May 22, 1873: " Chinese Obstinacy. " The Mongols have determined upon the policy of worrying the au- thorities in their attempt to enforce the ordinance prohibiting the un- wholesome crowding of lodging-houses, in the hope of rendering the ef- fort futile. " The large gang brought up and fined on Tuesday, with the re-in- forcements to-day, have completely filled the prison accommodations. And if the crusade is continued, the cattle pound, or some other spacious enclosure, will have to be utilized for their confinement. A few were in- clined to pay the fines imposed, but were prevented from doing so by the commands of the leading men in the Chinese quarter, who declared, in substance, that they would make the city .sick of prosecuting and main- taining (liinamen in prison, under this ordinance." 896 There was a good deal of difficulty in enforcing the or- dinance, on account of the nuraher of Chinese who vio- lated it, and their omission to pay the fines imposed. They were arrested in great numbers, and packed in cells where they had not 100 feet of cubic air to the person. They over-crowded the jails, and it was thought necessary by the authorities of tlie cit}' to adopt a polic}" wliich would compel them to pay their iines and at the same time pre- vent the immigration of others of their countrymen. Accordingly, on the 25th May, 1873, three oi'dinances were introduced in the Board, having this object in view. One of the oi'dinances provided that every male' per- son imprisoned in the count}' jail, in pursuance of a judgment or conviction of the Police Court of the city and county, should, inimediately upon his arrival at the jail, have the hair of his head cut or clipped to a uniform length of one inch from the scalp. Another of the ordinances provided that no person should remove or cause t(i be removed, tVom any cemetei-y or grave-yai'd within the limits of the city and county, the remains of any deceased person or persons there placed or disposed, without the written permit of the coroner of the city and county. The third of the ordinances imposed a license- tax of fifteen dollars a quarter upon keepers of laundries or laundry offices, or wash-houses, who employed no ve- hicle drawn by animal power. Of two of these ordinances tlie Ecening BuU.etiiL of May 27, 1873, said as follows : "It is generally knovvu that to deprive a Chinaman of his queue is to humiliate him as deeply as is possible. "It is also very generally known, that the bones of no Chinaman are permitted to remain in a foreign land, and that all Chinese, before leaving their country, feel assured that, after death, no matter where they die, their bones will be taken back to mingle with their native sod. " So strict are all Chinese on these two points, that it is believed, if they were prevented from wearing their tails here, and if after death their bones were denied transportation to their native land, the immi- gration of this superstitious people would be eftectually stopijed, and a reflux commence from our shores to the Flowery Kingdom." 'M\7 And in its edition ol'Juni' 2(1, 187-1. the IhiUilin luid tlie lollowinu' artiele upon one of the ordinances: ••The t^uPERVisoKs ox J[aik CiTTixci. •'The Boant of Supervisors have passed to print an ordinance re(niiring the cropping of the hair of every person who is serving a term in the jail iinder a criminal conviction. The ordinance, icliile it nominally makes no discrimination as to race or condition, is aimed specially at the Chinese. The euforceuient of the sanitary ordinance against the over-crowding of Chinese is just, and ought to be certain. But it should be enforced lawfully. The Chinese go to jail, in most cases, rather than pay the tine. The readiness to be fed and lodged for a week or more, at the public expense, extracts all the real penalty there is in the sanitary law. Five hundred or a tliousand Chinese going willingly to jail, and rather liking the opportu- nity for free board and lodging, quite superior to their own miserable ac- eommodations, presents a uew phase of the question. The judgment has no penalty. The Chinese who offend against the ordinance refuse to pay the tine, but go to jail and board it out. The Supervisors, casting about for some means of relief, have hit upon the plan of cropping the hair. White criminals would care nothing about this, and the- ordinance would prob- ably never be enforced against them. The loss of a pigtail is a great calamity to the Chinese. It is his national badge of honor. If it is cut otf, he is maimed. He will not venture home without it, and becomes a fixture .from very necessity. The sanitary regulations enforced in this way is a kind of boomerang, which comes back with telling effect." The qneue-eutting ordinance and the laundiy oi'dinanee wei'c hoth passed, but the_y Avere both vetoed bj Mayor Alfoi'd of th<^ city, and his action received the genei-al a[)proval of the Press of the State and of the cotuitry generahy. In liis nies.sage vetoing tlie Queue Orninance he stated that its njanifest motive was to inflict upon the persons of Cliinese convicted of iiiisdenieanors a^ punish- ment which, in their estimation, was shameful and de- gra(hng, and that, in his judgment, minor otfettces wliich do not l)eh)ng to the chxss of crimes called infamous shouhl not be punished l)y penalties, which inflicted dis- grace upon the person of the oftender. On the 3d of April, 187G, the Legislature of the State passed an act entitled " An act concerning lodging-houses and sleepjing-apartments within the limits of incorporated cities,*' in which it [)i-o\ided that any person or persons 398 found sleeping or lodging, or hired or used for the purpose of sleeping, any room or apartment which contained less than five hundred cubic feet of space in the clear, every such person, so keeping such room or apartment, should be deemed gailty of a misdemeanor and should be punished by a fine of not less than ten nor more than fifty dollars, or by both fine and imprisonment. In June afterwards, the Board of Supervisors of the city and county of San Francisco, took up and passed anew the old vetoed queue- cutting ordinance. It was introduced by Supervisor Gibbs. who stated that it was necessary to resort to this mode of treatment to compel the payment of the fines imposed upon the Chinese, and for that purpose it was passed by a vote of ten to two, and approved by the then mayor. It was l)eheved that the dread of the loss of his queue would compel every Chinaman to pay the fine rather than to go to jail. Utuler this ordinance, a Chinaman, by the name of Ah Ivow, was sentenced to pay a fine of ten dollars, and in de- fault to be imprisoned in the county jail. Faihng to pay liis fine, he was arrested, and on being taken to the jail the Sherifi' cut ofl" his queue. For this treatment he sued the Sherifi", setting forth his conviction under the act of the Legislature, and the treat- ment to which he was subjected, and the injury and sufier- ing he had endured, and asked damages. To this com- plaint the Sherifi' answered justifying his act under the ordinance of the city. To this answer the plaintifl' demur- red. The particulars of the complaint and answer are more fully stated in the opinion delivered by Judge Field in overruhng tlie demurrer, which is as follows : "Ah Kow vs. Noonan. " The plaintiff is a subject of the Emperor of China, and the present action is brought to recover damages for his alleged maltreatment by the defendant, a citizen of the State of California and the Sheriff of the city and county of San Francisco. The maltreatment consisted in liav- ing wantonly and maliciously cut off the queue of the plaintiff, a queue 899 being worn by :ill Chinamen, and its deprivation boinji; ro-iardcd by tlieni as degrading and as entailing fnture sntTering. "It appears that in April, 1870, the Legislatnre of California passed an act 'concerning lodging-honses and sleeping-apartments within the limits of incorporated cities,' declaring, among other things, that any person found sleeping or lodging in a room or an aiKutraent containing less than live hundred cubic feet of space in the eh ar for each person occupying it, should be deemed guilty of a misdemeanor, and on conviction thereof be punished by a line of not less than ten or more than fifty dollars, or imprisonment in the county jail, or by both such fine and imprisonment* Under this act the plaintilf, in April, 1876, was convicted and sentenced to pay a fine of ten dollars, or in default of such payment to be impris- oned five days in the county jail. Failing to pay the fine, he was im- prisoned. The defendant, as sherift' of the city and county, had charge of the jail, and during the imprisonment of the plaintiff cut off his queue, as alleged. The complainant avers, that it is the custom of China- men to shave the hair from the front of the head and to wear the re- mainder of it braided into a queue; that the deprivation of the queue is regarded by them as a mark of disgrace, and is attended, according to their religious tiiith, with misfortune and suffering after death ; that the defendant knew of this custom and religious faith of the Chinese, and knew also that the plaintitf venerated the custom and held the faith ;t yet, in disregard of his rights, inflicted the injury complained of; and that the plaintitf has, in consequence of it, suffered great mental anguish, been disgraced in the eyes of his friends and relatives, and ostracised from association with his countrymen ; and that hence he has been damaged to the amount of 1^10,000. " Two defences to the action are set up by the defendant ; the second one being a justification of his conduct under an ordinance of the city and county of San Francisco. It is upon the sufficiency of the latter de- fence that the case is before us. The ordinance referred to was passed on the 14th day of June, 1876, and it declares that every male person imprisoned in the county jail, under the judgment of any Court having jurisdiction in criminal cases in the city and county, shall immediately upon his arrival at the jail have the hair of his head ' cut or clipped to an uniform length of one inch from the scalp thereof,' and it is made the duty of the sheriff' to have this provision enforced. Under this ordinance the defendant cut off" the queue of the plaintiff'. * Session Laws of 1875-6, p. 759. f It has been suggested that this averment of the complaint is not in point of fact strictly accurate ; and that, according to the belief of the Chinamen, the loss of the queue is only evidence of previous bad charac- ter, and as such mny aff'ect his future condition, not necessarily. It is not perceived that this statement, if correct, alters in any respect the argument of the opinion. The loss of his queue is the cause of reproach and degradation to him. 4(H) ■' Tlie Viilidity of this ordinance is ilonitd ))y tlic plainlitV on two jiToiinds: 1st, that it exceeds the authority of the Board of Supervisors, the body in which the legislative power of the city and county is vested ; and 2d, that it is special legislation imposing a degrading and cruel pun- ishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protec- tion of the laws. We are of the opinion that both of these positions are well taken. " The Board of Supervisors is limited in its aiithority by the act con- solidating the government of the city and county. It can do nothing un- less warrant be found for it there, or in a subsequent statute of the State. As with all other municipal bodies, its charter — here the Consolidation Act — is the source and measure of its powers. In looking at this charter, we see that the powers of the Board, and the subjects upon which they are to operate, are all specified. The Board has no general powers, and its special power to determine the tines, forfeitures, and penalties which may be incurred, is limited to two classes of cases : 1st, breaches of regula- tions established by itself; and 2d, violations of provisions of the Consoli- dation Act, where no penalty is provided by law. It can impose no pen- alty in any other case ; and when a penalty other than that of fine or for- feiture is imposed, it must, by the terms of the act, be in the form of im- prisonment. It can take no other form. ' No penalty to be imposed,' is the language used, 'shall exceed the amount of one thousand dollars, or six months imprisonment, or both.' The mode in which a penalty can be inflicted, and the extent of it, are thus limited in defining the power of the Board. In their place nothing else can be .substituted. No one, for example, would pretend that the Board could, for any breach of a mu- nicipal regulation or any violation of the Consolidation Act, declare that a man should be deprived of his right to vote, or to testify, or to .sit on a jury, or that he should be punished with stripes, or be ducked in a pond, or be paraded through the streets, or be seated in a ]iillory, or have liis ears cropped, or his head shaved. " The cutting ofi' the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be main- tained as a measure of discipline or as a sanitary regulation. The act l)y itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation, it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the State Penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape, and facilitate their recapture. They are measures of precau- tion, as well as parts of a general system of treatment prescribed by the Directors of the Penitentiary under the authority of the State, for parties (■onvioted of and imiirisoned for felonies. Nothing nf the kiinl is prescrilwd 401 ov would lie tolciatrd with ii'spcct to pcrsoiis (oulincd in ;i ((Hinty jail l'orsimi)l(' misdcineanois, most of which arc not of a \erso« the equal protection of the laws. This inhibition upon the State applies to all the instrumentalities and agen- cies employed in the administration of its government; to its execu- tive, legislative, and judicial departments; and to the subordinate legis- lative bodies of counties and cities. And the equality of protection thus assured to every one whilst within the United States, from whatever country he may have come, or of whatever race or color he may be, im- plies not only that the Courts of the country shall be open to him on the same terms as to all others, for the security of his person or property, the prevention or redress of wrongs, and the enforcement of contracts ; but that no charges or burdens shall be laid upon him which are not equally borne by others, and that in the administration of criminal jus- tice he shall suffer for his offences no greater or different punishment. " Since the adoption of the Fourteenth Amendment, Congress has leg- islated for the purpose of carrying out its provisions in accordance with these views. The Revised Statutes, re-enacting provisions of law passed in 1870, declare that ' all persons within the jurisdiction of the United 27 404 States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.'' — (Sec. 1,977.) They also declare, that 'every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States, or o^Aerpfrsow within the. jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' — (Sec. 1,979.) " It is certainly something in which a citizen of the United States may feel a generous pride that the government of his country extends protec- tion to all persons within its jurisdiction ; and that every blow aimed at any of them, however humble, come from what quarter it may, is ' caught upon the broad shield of our blessed Constitution and our equal laws.' * " We are aware of the general feeling — amounting to positive hos- tility — prevailing in California against the Chinese, which would prevent their further immigration hither, and expel from the State those already here. Their dissimilarity in physical characteristics, in language, man- ners, and religion, would seem, from past experience, to prevent the pos- sibility of their assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of their pouring over in vast hordes among us, giving rise to fierce antagonisms of race, hope that some way may be devised to prevent their further immigration. We feel the force and importance of these considerations ; but the remedy for the appre- hended evil is to be sought from the General Government, where, except in certain special cases, all power over the subject lies. To that govern- ment belong exclusively the treaty-making power, and the power to reg- ulate commerce with foreign nations, which includes intercourse as well as trafSc, and, with the exceptions presently mentioned, the power to pre- scribe the conditions of immigration or importation of persons. The State in these particulars, with those exceptions, is powerless, and noth- ing is gained by the attempted assertion of a control which can never be admitted. The State may exclude from its limits paupers and convicts of other countries, persons incurably diseased, and others likely to be- come a burden upon its resources. It may, perhaps, also exclude persons whose presence would be dangerous to its established institutions. Biat there its power ends. Whatever is done by way of exclusion beyond this must come from the General Government. That goverment alone can determine what aliens shall be permitted to land within the United * .Tudge Black's argument in the Fossat Case, 2 Wallace, p. 703, 40,-) Statos, ;nul upon what conditions they sliall bo permitted to remain ; whether they shall he restricted in bnsiness transactions to snch as aji- pertain to forei<>n commerce, as is practically the case with our people in China: or whether they shall be allowed to en<^ageinall pursuits equally with citizens. For restrictions necessary or desirable in these matters, the appeal must be made to the General Government ; and it is not be- lieved that the appeal will ultimately be disregarded. Be that as it may, nothing can be accomplished in that direction by hostile and spitelnl legislation on the part of the State, or of its municipal bodies, like the ordinance in question — legislation which is unworthy of a brave and manly people. Against such legislation it will always be the duty of the judiciary to declare and enforce the paramount law of the nation. "The plaintiflf must have judgment on the demurrer to the defendant's plea of justification ; and it is so ordered." This decision raised a storm of abuse against its author. It seemed as though, for the time, reason had fled from the minds of the people of the State. It was not enough for them that the Judge was equally opposed to the im- migration of Chinese, believing, as he did, that it was not wise that persons should be encouraged to come to the country who, by their habits, religion, language, and man- ners, could not assimilate readily with our people; that the presence of such a class would necessarily engender enmities and conflicts, disturbing to the peace and injuri- ous to the prosperity of the country. They wanted him to disregard the Constitution of the United States and the provisions of the treaty w'ith China, and hold that the State was supreme in all matters aflecting the Chinese. It is enough to say that the Judge would have deserved the reproach of all good men had lie listened to such wild and senseless clamor. During the same year a new C'onstitution for the State had been adopted. Thp members of the Convention, who framed it, had been elected under the excitement existing at the time against the Chinese, and they seemed to think that all obstacles to the hostile legislation would be removed if authority for it was expressed in the organic law. Accordingly, tlje instrnnient adopted is filled with 40(! clauses leveled against the people of the hated race, show- ing a determination to exclude them from the State at all hazards, without regard to treaty stipulations with their country or inhibitions of the Constitution of the United States. Provisions of various kinds are found in it, ex- hibiting ignorance of the plainest doctrines of political economy as well as of pubhc and constitutional law. Hostility to capital and to the Chinese appears to have been the ruHng principle of the Convention, and the ex- clusion of both from the State its object — of the former by onerous taxation, and of the latter by cutting otf the means of livelihood. The Nineteenth Article contained the following provision : " Section 2. No corporation now existing, or hereafter formed under the laws of this State, shall after the adoption of this Constitution em- ploy directly or indirectly, in any capacity, any Chinese or Mongolians. The Legislature shall pass syeh laws as may be necessary to enforce this provision. " Section 3. No Chinese shall be employed on any State, county, mu- nicipal, or other public work, except in punishment for crime. " Section 4. The presence of foreigners ineligible to become citizens of the United States is declared to be dangerous to the well-being of this State, and the Legislature shall discourage their immigration by all the means within its power." Under this article the first Legislature which assembled under the new Constitution added to the penal code of the State the following sections: " 178. Any officer, director, manager, member, stockholder, clerk, agent, servant, attorney, employ^, assignee, or contractor of any corpora- tion now existing, or hereafter formed under the laws of this State, who shall employ, in any manner or capacity, upon any work or business of such corporation, any Chinese or Mongolian, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail of not less than fifty nor more than five hundred days, or by both such fine and im- prisonment ; Provided, That no director of a corporation shall be deemed guilty under this section who refuses to assent to such employment, and has such dissent recorded in the minutes of the board of directors. " 1. Every person who, having been convicted of violating the provi- sions of this section, commits any subsequent violation thereof after such conviction, is punishable as follows: 407 " 2. For each subsequent conviction such person shall he lined not less than five hundred nor more than five thousand dollars, or by imprison- ment not less than two hundred and fifty days nor more than two years, or by both such fine and imprisonment. " 179. Any corporation now existing, or hereafter formed under the laws of this State, that shall employ, directly or indirectly, in any ca- pacity, any Chinese or IMongolian, shall be guilty of a misdemeanor, and upon conviction thereof shall for the first offence be fined not less than five hundred nor more than five thousand dollars, and upon the second conviction shall, in addition to said penalty, forfeit its charter and fran- chise, and all its corporate riglits and privileges, and it shall be the duty of the Attorney-General to take the necessary steps to enforce such for- feiture." As this law went into effect immediately, some corpora- tions dissolved, others resisted its enforcement. The presi- dent of one of them— the Sulphur Bank Quicksilver Mining Company, organized under the laws of the State — was ar- rested and held to answer before a State Court, upon a com- plaint setting forth the offence of employing in the busi- ness of the corporation certain Chinese citizens of the Mon- golian race. He thereupon sued out a writ of habeas cor- pus in the Circuit Court of the United States. That Court, Sawyer, the Circuit Judge, and Hoffman, the District Judge, sitting, held the law invalid, and discharged him from arrest. Both of the judges delivered very elaborate and able opinions. They showed by clear and unanswerable reasoning, that the law in question was in conflict with the treaty with China and the Fourteenth Amendment of the Constitution; that the privileges and immunities pledged to the Chinese by the treaty, guaranteed to them the right to labor, and to pursue any lawful business equally with the subjects of the most favored nation ; and that the power to repeal and amend acts of incorporation, reserved to the Legislature by the Constitution of the State, did not authorize it to require corporations to exclude from em- ployment persons who were thus protected by treaty stip- ulations. As said by Judge Hoffhian, if the provisions of the law were enforced, a bank or a railroad company would " lose the right to employ a Chinese interpreter 4()S to ciiablo it to coiimiiiniciite witli Chinese with wlioiii it does business. A hospital association would be unable to employ a Chinese servant to make known, or to minister to, the wants of a Chinese patient, and even a society for the conversion of the heathen would not be allowed to employ a Chinese con vert to interpret the gospel to Chinese neophytes." The judge was of opinion that the legislation, under the guise of amendment or alteration, was merely an attempt to drive the Chinese from the State by preventing them from laboring for their livelihood, and he thought that no enumeration would " be attempted, of the privileges, im- munities, and exemptions of the most favored nation, or even of man in civilized society, which would exclude the right to labor for a living." " It is as inviolable," he added, " as the riglit of propert}^ for property is the offspring of labor. It is as sacred as the i"ight to life, for life is taken if the means whereby we live be taken. Had the labor of the Irish or Germans been similarly proscribed, the legislation would have en- countered a storm of just indignation. The right of per- sons of those or other nationalities, to support themselves by their labor, stands on no other or higher ground than of the Chinese. The latter have even the additional ad- vantage afforded by the express and solemn pledge of the ISTation." The judge concluded his opinion by observing, what was generally felt to be true, " that the unrestricted inmii- gration of the Chinese to this country is a great and grow- ing evil. That it presses with much severity on the labor- ing classes, and that if allowed to continue in numbers bearing any considerable proportion to that of the teem- ing population of the Chinese Empire, it will be a menace to our peace and even to our civilization, is an opinion entertained by most thoughtful persons. The demand, therefore, that the treat v shall be rescinded or modified is 4or> reasoiiiiblc and legitimate."* " But," lie added, " while that treaty exists, the Chinese liave the same rights of immigration and residence as are possessed by any other foreigners. Those rights it is the duty of Courts to main- tain and of the Government to enforce." The opinion of Judge Sawyer was equally clear and emphatic in its condemnation of the law of the State. Both opinions will appear in 6th Sawyer's Reports under the title of the case, " In Re Tiburcio Parrott, on Habeas Corpus." Nothing could better exhibit the unreasonable character of the legislation of the State than the illustration above given. It was the oii'spring of ignorance, and of a spite- fulness which always over-leaps its mark and defeats itself. Other Cases in the Circuit Court. A great many other cases of interest have been decided by the Circuit Court whilst Judge Field presided, but only a few of them have been reported. In much the larger number merely an oral opinion has been given by him, briefly recapitulating the grounds of the decision. Of the reported cases, other than those from which the quotations above are made, the following may be named as the most important : Central Pacific Railroad Co. vs. Dyer, 1 Sawyer, 643. Cole Silver Mining Co. vs. V'irginia k Gold Hill Mining Co., 1 Ibid., 685. Galpin vs. Page, 3 Ibid., 93. Patterson vs. Tatum, 3 Ibid., 164. * The treaty with China has since been modified, so as to admit of leo-islation by Congress restricting tlie immigration of Cliinese to this country. The power which Congress always possessed can now be exer- cised without a breach of the treaty. 410 Lei-oy vs. Janiison, 3 Ibid., 370. Leroy V8. Wright, 4 Ibid., 530. Norton vs. Meador, 4 Ibid., 603. Gray vs. Lammore, 4 Ibid., 638. United States vs. Hare, 4 Ibid., 653. Nicholson Pavement Co. vs. Hatch, 4 Ibid., 692. Grisar vs. McDowell, 4 Ibid., 597. Gimray vs. Culverson, 5 Ibid., 605. The Ship Harriman, 5 Ibid., 611. United States vs. Outerbridge, 5 Ibid., 620. In Re Frank McCoppin, 5 Ibid., 630. 411 THE ELECTORAL COMMISSION OF 18; Any notice of the judicial labors of Justice Field would l)e incomplete which failed to include his action as a member of the Electoral Commission created for count- ing the Presidential vote of 1876. Although the history of that memorable tribunal, and the circumstances which led to its creation, are probably familiar to most readers, it may not be amiss briefly to recapitulate them. On the morning of the Presidential election held ITo- vember 7th, 1876, it was announced and generally con- ceded that Samuel J. Tilden, the Democratic candidate, had secured a majority of the Electoral College. The total number of electors composing it was 369, of whom 203 favorable to him, and 166 favorable to the Republican- candidate, Rutherford B. Hayes, had received a majority of the popular vote of their States. In the number for Mr. Tilden, however, were included four electors from Florida, eight from Louisiana, and seven from South Caro- lina. If these nineteen votes could be taken from Mr. Tilden's column and added to that of Mr. Hayes, the lat- ter would have a majority of one. Some of the leaders of the Republican party, therefore, determined to originate a contest in these States, for which peculiar facilities were *This article was prepared by John T. Doyle, Esq., of San Fran- cisco, a distinguished member of the Bar of California. In the note on page 259, there is a mistake in designating the Commission as of 1876. It was created by the act of Congress approved .January 29th, 1877. 412 attbrded by the fact that in them the canvassing of the votes and dechxration of the result were contided to " re- turning boards," a majority of whose members were not only of the same party, bat were political adventurers, wholly without character. On the other hand, among the electors chosen in the States, wdiich had been fairly car- ried by the Republicans, there were several who, by hold- ing a Federal office, or otherwise, were ineligible for the position. So that the slenderness of the majority for Mr. Hayes (even supposing his partisans successful in their ef- fort to count for him the votes of the returning-board States) rendered it necessary for them to retain also the votes of all these ineligible electors. The Democrats, therefore, in turn, contested the election of the latter. When the movements of the Kepublican leaders iirst intimated a design to attempt to count the votes of the returning-board States for their candidate, in the face of notorious popular majorities, people refused to credit the suggestion. The rumors on the subject were, by most persons, regarded as merely sensational, and intended at most to effect some other purpose. But when President Grant invited a large number of prominent Republicans to visit those States, and act as voluntary Supervisors of the count; when these gentlemen, all pronounced parti- sans of the Republican candidate, took upon themselves this supervision, and in carrying it out refused to act in concert wdth a committee of citizens equally distinguished, chosen by their opponents; and when they, with a single exception, gave their countenance and sanction to flagrant violations of the local law by the returning boards, it be- came too clear to doubt that an attempt was to be made to overrule the popular vote, and by means of fraudulent devices, to confer the Presidency on a candidate who had been defeated at the polls. The success of such a scheme did indeed at first appear incredible, and most persons looked forward to seeing justice attained by the ordinary processes. But meantime the returning boards went on, 418 niul, al'tcr Narious preliiuinary violations ol' law, proe-ecdcd by methods now coucetlcd by their own partisans to be wholly illegal and indefensible, to consummate the crime of certifying the election of all the defeated candidates. The electors actually chosen, but counted out hy this process, however, met and voted as required by law, and ti-ansmitted certiticates of their votes to the President of the Senate in Washington, in proper form. In the lie- publican States where the Democrats claimed the defeat of particular electors on tlie ground of ineligibihty, pro- ceedings were also taken to question their votes, and thus the final count of the electoral vote and the ascertainment of the result of the election presented a series of judicial questions, the determination of each one of which vitally ati'ected the result. If every question were decided in favor of the Republicans they had the Presidency by a majority of one electoral vote. The decision of a single point against them was fatal to their pretensions. What tribunal was to decide these tremendous issues ? Quis taut IS conponcre litcsf The constitutional provision on the subject was ex- tremely meagre. " The. President of the Semde shall, in ' presence of the Senate and House of RepreseyUatives, open. ' all the certificates, and the votes shall then be counted.'" And there was no statute nor even a joint rule of the two Houses [)roviding how the count was to be made or how any disputed question which arose on it should be deter- mined. The Repul)licans put forward the claim that the President of the Senate alone had the power to determine what were and what were not the genuine electoral votes, and so, practically, to judge the whole question. The other side contended that the tw^o Houses of Congress were to count, and that, therefore, the assent of both was neces- sary to the recognition of each vote claimed. The whole countr}^ became excited on the question, and the news- papers teemed with discussions of it. The records of all previous Presidential counts were ransacked and every 414 precedent quoted; but none could be claimed us decisive, for the contest itself was without precedent. The House of Representatives was Democratic both nu- merically and on a count by States. On a failure to elect by the Colleges it would, undoubtedly, have chosen Mr. Tilden. But the Congress was to expire and the House be dissolved on the fourth of March, and the new House, though similarly constituted, would not assemble until the following December. Meantime the Senate and all the Executive Departments, which were permanent bodies, were in the hands of the Republicans, and the Senate would doubtless elect, and the Executive Departments recognize, Mr. Hayes. The outgoing President was ex- pected to do all in his power to confirm the claim by in- ducting him into otiice and turning over to him all the machinery of the Executive Government. He would thus become President de facto with a claimant dejure opposed, and no tribunal to decide between them, no law applica- ble to the case, and to all appearances no appeal possible except to the sword. People stood aghast at the magnitude of the peril be- fore them. Treason in its worst form, not only to tlie Re- public, but to all Republican government, menaced the very life of the Nation. The public excitement became intense; rage and indignation took possession of men's minds, and projects for resisting fraud by violence, and of arming large bodies of men to march on Washington and insist on a fair count b}' the two Houses of Congress, w^ere freely canvassed. The President, on the other hand, con- centrated a military force at the Capital, and civil war in its worst form seemed imminent;— not section against sec- tion, nor State against State, but neighbor against neigh- bor, throughout every State, county, and village in the land. Under these circumstances a Joint Committee of the Senate and House of Representatives devised, and on January 29th, 1877, Congress passed a bill creating a com- 415 mission of lifteeii members, — iive Senators, live Represen- tatives, and five Judges of the Supreme Court, — to whose adjudication the whole subject was committed. Justice Field was selected as one of the last-named members.* It is not deemed necessar}' to detail the particulars of the points of contest in each of the cases submitted. They can be sufficiently gathered from the extracts winch we make from his opinions. The Florida Case. The frauds practiced in Florida consisted in substituting, for the returns of certain counties regularly made up by the proper officers in conformity with the votes legally cast, other returns subsequently prepared by different officers, in which a sufficient nundier of the votes were thrown out to change the result in the State. A state- ment of the proceedings in one of the counties — Baker County — will show how the frauds were perpetrated. By the laws of the State, the counties were divided into polling precincts, and the votes of those precincts were to be returned to the county clerk, at the county seats, where they were to be canvassed; and the county canvassers, w^ere to certify the result to the State canvassers. The county canvassers were, by law, the county judge, the county clerk, (or clerk of the circuit court of the county,) * Justice Field had always expressed the opinion that it was the duty of the two Houses of Congress to meet in joint convention and count the votes, and if they could not agree upon the votes to be received, so as to be able to declare who were elected President and Vice-President, the duty would then devolve upon the House of Kepresentatives to elect the President, and upon the Senate to elect the Vice-President. He did not, therefore, believe in the necessity of any commission, but was willing to act as one of its members, not doubting, for a moment, that it would go behind the certificates issued by the Governors of the disputed States, and determine, not who had received them, for that was apparent on their face, but who were entitled, as electors, to receive them. 41(1 and a justice of the peace, to be called in by them i'ortheii" assistance. Incase either the judge or clerk was absent, or could not attend, the sheritt' of the county was to be called in his place. The law provided that the canvass by the county canvassers should be on the sixth day after the election, or sooner, if the returns were all received. In Baker County there were but four precincts, and the returns were all received in three days. On the 10th of is"oveniber the county clerk, considering that the returns were in, and that further delay in the canvass might be embarrassing, requested the county judge to join in the canvass. The county judge refused. The clerk then asked the sheriif, but he declined. The clerk then called to his assistance a justice of the peace, and made the canvass, wdiich was a correct one. But it so happened that the county judge, on the same day — the 10th — issued a notice to the county clerk, and to a justice of the peace, to attend him at the county seat on the 13th, for the purpose of making the count. On that day and at the hour named, the county clerk and the justice of the peace, thus re- quested, attended. The county judge, however, absented himself. He was invited and urged to go on with the canvass, but he declined to attend. The sherift" was then applied to, and he refused. Thei'eupon the county clerk and a justice of the peace recanvassed the votes, giving the same result as in the first canvass, and so certified the same to the State canvassers, stating in their certificate the reasons why neither the county judge nor the sheritf was present. The office of the clerk was then closed for the day. On the evening of that day, the same county judge and the same sheritf, taki)ig to their assistance a justice of the peace who had been commissioned on the 10th by the Governor, and who had never acted before, entered the office surreptitiously, opened a drawer and took out the re- turns, threw aside two precincts, and certified the two re- maining, and sent the certificate to the State canvassers. This was done without anv evidence wdiatevei* of anv ille- 417 gality or irregularity in the election in either of those precincts. The deposition of the sherifl", on the suhject, was taken; and he testitied that no evidence was before tlieni; that one pei'son had stated that lie had l)een pre- vented at one of the precincts from \-oting, hnt gave no proof of it; and as to tlie other precinct, they merely be- lieved that some illegal votes had been given, but of that no proof was ottered to them. When the State canvassers met the}' amended the can- vass by counting the returns from all the precincts, thus maldng the certiiicate conform to the actual vote cast. But they eliminated from the returns of other counties a suthcient number to equal what was thus returned by the ti'ue certificate of Baker County, and enough to give the State to the Hayes electors. At that time Stearns and Drew were candidates for the ottice of governor of the State, and Drew contested the legality of this action, so far as he was concerned. The Supreme Court of the State, before which the question was carried, held that the canvassers had no right to eliminate the votes from the other counties; that their duty was ministerial, wliich was to count the votes properly returned. The result gave Drew the office of governor. The State canvassers, see- ing this result, recalled their amendment of the Baker County canvass, and adopted the false certificate as re- turned with the two precincts omitted. This was done, as without it tlie convass showed a majority for the elec- tors of Mr. Tilden. The action of the Courts and of the Legislature of the State, to correct the fraud tlius perpetrated by the can- vassers, will appear in the argument, given below, of Jus- tice Field. When the original certificate was before the Commis- sion for examination, it was contended that Congress had no right to go behind it and count the votes of the electors actually chosen, and upon this question Justice Field said as follows: 418 " Mr. President : . . . . " The main question submitted to us, the one to wliich all other in- quiries are subordinate, is, whom has the State of Florida appointed as electors to cast her vote for President and Vice-President ? The Electoral Act, under which we are sitting, makes it our duty to decide ' how many and what persons were duly appointed electors ' in that State. " The Constitution declares that each State shall appoint electors ' in such manner as the Legislature thereof may direct.' It fixes the num- ber to be appointed, which is to be equal to the whole number of Sen- ators and Kepresentatives to which the State may be entitled in Con- gress. It declares Avho shall not be appointed ; that is, no Senator or Representative, or person holding an office of trust or profit under the United States. With the exceptiou of these provisions as to the num- ber of electors and the ineligibility of certain persons, the power of choice on the part of the State is unrestricted. The manner of appointment is left entirely to its Legislature. " What, then, was the manner of appointment directed by the Legisla- ture of Florida ? This is manifestly a proper subject for our inquiry, for if another and different manner from that directed by the Legislature has been followed in the appointment of persons as electors, such persons are not ' duly appointed ' in the State, and we must so decide. Any sub- stantial departure from the manner prescribed must necessarily vitiate the whole proceeding. If, for example, the appointment of electors should be made by the Governor of a State, when its Legislature had di- rected that they should be chosen by the qualified voters at a general election, the appointment would be clearly invalid and have to be re- jected.- So, too, if the Legislature should prescribe that the appointment should be made by a majority of the votes cast at such election, and tlie canvassers, or other officers of election, should declare as elected those who had received only a plurality or a minority of the votes, or the votes of a portion only of the State, the declaration would be equally in- valid as not conforming to the legislative direction ; and the appoint- ment of the parties thus declared elected could only be treated as a nullity. " In inquiring whether the manner prescribed by the State has been followed, we do not trench upon any authority of the State, or question in any respect her absolute right over the subject, but, on the contrary, we seek only to give effect to her will and ascertain the appointment she has actually made. « " What, then, was the manner directed by the Legislature of Florida ? It was by popular election. It was by the choice of a majority of the qualified voters of the State. When their votes were cast on the 7th of November, the electors were appointed, and all that remained was to as- certain and declare the result. The appointment was then completed, and could not afterward be changed. What subsequently was required of the officers of election and canvassing-boards was an authentic dec- laration of the result." 411) Justice Field then proceeded to show that the duty of the State canvassei-s of Flori(hi was ininisterial and not judicial — so decided hy the Su[U'cnic Court of the State, quoting from its ojiinion to that etiect; that it was their duty to certify the I'esult shown hy the returns from the county canvassers; and that, accordinn' to such rctui'us, the certificates of the State hoard should luive been given to the Tilden electors, and not to the JIayes electors. And, as to the objection taken, that the certificates issued by the Governor of the State to the Hayes electors, upon the result found hy the board of canvassers, w^as the only evidence which the Commission could receive of the ap- pointment of electors, he said as toUows: " The Constitution docs not prescribe the evidence which shall be re- ceived of the appointment. That ouly provides for the voting of the electors, and the transmission by them of a list of the persons voted for, to the seat of government, directed to the President of the Senate. Con- gress has, therefore, enacted that the Governor shall issue a certified list of the electors to them before the time fixed for their meeting. The lan- guage of the act is that ' It shall be the duty of the executive of each State to cause three lists of the names of tlie electors of such State to be made and certified, and to be delivered to the electors of such State on or before the day on which they are required by the previous section to meet.' — (Revised Statutes, sec. 136.) •' There is nothing in this act which declares that the certificate thus issued shall be conclusive of the appointment. It does not say that the evidence tlius furnished is indispensable, or that other evidence of the appointment may not be received. Its only object was simply to provide convenient evidence of the appointment for the consideration of the two Houses of Congress when called upon to count the votes. It was not its purpose to control their judgment in deciding between different sets of papers purporting to contain the votes of the State. A compliance with the act is not obligatory upon the executive of the State. He is not in that respect subject to the control of Congress. He could not be com- pelled to give the certificate, nor could he be subject to any punishment for refusal to act in the matter. And certainly, when Congress can fur- nish no means to control the action of a State officer, it cannot render his • action either indispensable or conclusive of the rights of the State. In- stances may be readily imagined where, from accident, disability, or sick- ness of the Governor, the certified lists could not be obtained, or be ob- tained and delivered in time, or, if obtained, might be lost or destroyed before delivery. In such cases would there be no remedy ? Would the 28 4-J() State in such cases lose its vote ? Surely, no one will seriously contend I for such a result. Suppose, further^ that the Governor, by mistake or I fraud, should deliver certified lists in favor of persons not appointed electors; for instance, to persons who had not received a majority of the votes cast for those officers, (the persons having such juajority of votes being eligible to the office under the Constitution ;) would it be pre- tended that the will of the State should be thwarted through the force of his certificate? I feel confident that no law3'er in the country would hold that the truth could not be shown in such case against the face of the certificate ; and I will never believe in the possibility of tliis Com- mission so holding until I see its decision to that effect. " The truth is, a certificate is only pnmri-facie evidence of the fact cer- J tified. Indeed, I venture to assert, without fear of successful contradic- tion, that in the absence of positive law declaring its eftect to be other- Avise, a certificate of any officer to a fact is never held conclusive on any question between third parties; it is always open to rebuttal. There are, indeed, cases where a party who had been induced to act upon the certificate of a fact may insist that the truth of the certificate shall not be denied to his injury, but those cases proceed upon the doctrine of es- toppel, which has no application here. The fact here to be ascertained / is, who have been duly appointed electors of the State of Florida, not who have the certificates of appointment. It is the election, and not / the certificate, which gives the right to the office. The certificate being only evidence, can be overcome by any evidence which is in its nature superior. And this is equally true of the certificate issued under the law of the State as of the certificate issued under the act of Congress. I And it is equally true of the certificate' of the board of canvassers. Those officers exercised mere ministerial functions ; they possessed no judicial power ; their determination had none of the characteristics or I conclusiveness of a judicial proceeding; it has been so decided by the Supreme Court of the State. And yet, in the opinion of the distinguished Commissioner from Indiana,. [Senator Morton,] and some other Commis- sioners from the Senate and House appear to concur with him, the deter- mination of those canvassers, as expressed by their certificate, is more sacred and binding than the judgment of the highest court of the land, incapable of successful attack on any ground whatever. "I put, yesterday, to these gentlemen this question: Supposing the canvassers had made a mistake in addition in footing up the returns, a mistake that changed the result of the election, and acting upon the . supposed correctness of the addition they had issued a certificate to persons as electors who were not in fact chosen, and such persons had met and voted for President and Vice-President and transmitted the certificate of their votes to Washington ; and afterwards, befoi-e the vote was counted by the two Houses of Congress, the mistake was dis- covered — was there no remedy ? The gentlemen answered that there was none : that whatever mistakes of the kind mav have been committed 4-21 must be eorrocted In'tore the vote w;is east by the eleetors or tliey eould not be eorrected at all. If this be sound doctrine, then it follows that by a elerical mistake in arithmetical computation a person may be placed in tlie Chief JVIagistracy of the nation against the will of the people, and the two Houses of Congress ara powerless to prevent tlie wrong. ■' But the gentlemen do not stop here. I put the I'urMier question to them: Supposing the canvassers were Itrihed to alter the returns, and thus change the result, or they had entered into a conspiracy to commit a fraud of this kind, and in pursuance of the bribery or conspiracy they did in fact tamper with and alter the returns, and declare as elected ])ersons not chosen by the voters, and such persons had voted and trans- mitted their vote to the President of the Senate, but before the vote was counted the fraud was detected and exposed — was there no remedy ? The gentlemen answered, as before, that there was none ; that whatever fraud may have existed must be proceeded against and its success de- feated before the electors voted ; tliat whatever related to their action was then a closed book. If this be sound doctrine, it is the only instance in the world where fraud becomes enshrined and sanctified behind a certificate of its authors. It is elementary knowledge that fraud vitiates all proceedings, even the most solemn ; that no form of words, no amount of ceremony, and no solemnity of procedure can shield it from exposure and protect its structure from assault and destruction. The doctrine asserted here would not be applied to uphold the pettiest business trans- action, and I can never believe that the Commission will give to it any greater weight in a transaction affecting the Chief Magistracy of the nation. '• But the gentlemen do not stop here. I put the further question to them : Supposing the canvassers were coerced by physical force, by pistols presented to their heads, to certify to the election of persons not chosen l)y the people, and the persons thus declared elected cast the vote of the State — was there no remedy? and the answer was the same as that given before. For any wrong, mistake, fraud, or coercion in the action of the canvassers, say these gentlemen, the remedy must be applied before the electors have voted ; the work of the electors is done when they have acted, and there is no power under existing law by which the wrong can Ite subsequently righted. " The canvass of the votes in Florida was not completed until the morn- ing of the day of the meeting of the Electoral College, and within a few liours alterwards its vote was cast. To have corrected any mistake or fraud during these hours, by any proceeding known to the law, would have been impossible. The position of these gentlemen is, therefore, that there is no remedy, however great the mistake or crime committed. If this be sound doctrine, if the representatives in Congress of forty-two millions of people jiossess no power to protect the country from the in- stallation of a Chief Magistrate through mistake, fraud, or force, we are the only self-governing people in the world held in hopeless bondage at the mercy of political jugglers and tricksters. " This doctriuo, which seems to me to be as unsound in hxw as it is / shocking in morals, is supported upon the notion that if we are permitted to look behind the certificate of the Governor, and of the canvassing- board upon which that certificate is founded, we shall open the door to an investigation which may not be broughljto a close before the fourth of March. The argument is that as the new President is to be installed on that day, and the votes of the Electoral Colleges are to be counted in February, all inquiry as to the truth of that certificate is forbidden, be- cause it may be impracticable to carry the inquiry to a termination in time for the installation. This position was taken by counsel before the Commission, and presented in every possible form, and was repeated yesterday by Commissioners Hoar and Garfield, and dwelt upon by them as though it were conclusive of the question. The argument amounts only to this, that the difiiculty of exposing in time a mistake or fraud of the canvassing-board is a sufficient reason for not attempting the exposure at all, and for quietly submitting to the consequent perpe- tration of a monstrous wrong. "It is true that the machinery for the election of President, devised by the framers of the Twelfth Amendment to the Constitution, contemplates the induction of the successful candidate into office on the 4th of March, and that the office shall not on that day be either vacant or disputed. I admit, therefore, to the fullest extent claimed by gentlemen, that no proceedings can be permitted which will postpone the counting of the votes so as to prevent a declaration within that period of the person elected, or a reference of the election to the House of Representatives. But this limitation of time, .so fixr from being a reason for submitting to a mistake or to a fraud, is a reason for immediate action to correct the one and expose the other. Whatever is done to overthrow the imma- facie evidence presented by the certificate of the Governor must be com- menced, carried forward, and completed, so that the result of the pro- ceeding can be considered by the two Houses of Congress when the cer- tificates are opened in their presence and the votes are counted. The countervailing evidence must be presented iu some authentic form, like the judgment of a competent tribunal, or the legislative declaration of a State, or the finding of an appropriate committee approved by the House appointing it ; and then it will constitute a basis for the action of the Houses without delaying their proceedings. If, for example, the certifi- cate of the Governor were forged, or designated as electors persons for whom no votes were cast, the fiict, if it were desired to ask the action of the two Houses upon it in counting the vote, should be presented iu such a conclusive form as to be the subject of consideration as a fact found. If an investigation is then required to establish the fact alleged, I admit that the proceeding cannot be had, except by permission of the two Houses, by reason of the delay it would occasion. The two Houses cannot be required to stop the count to take testimony and investigate the truth of mere allegations; but if the fact of forgerv or falsity has already been found by competent authority, and tlie finding is laid before the two Houses, the finding would not only he a })roper subject of considera- tion by them, but it Avould he their nuinifest duly to act upon tlie find- ing, in order that the nation might not he ddVaMded in its choicer of a Chief Magistrate. " In the view which I take of this subject there would be no great de- lay in the counting of the electoral votes if Congress were permitted to look behind the action of the Governor or of the canvassing-board ; for the facts to be brought to the attention of the two Houses would have to be presented in the manner indicated before they could be received and acted upon, unless the two Houses should consent that testimony be taken at the time. If the fact alleged could be readily established with- out seriously delaying the count, it is not probable that testimony upon the subject would be refused. For example, testimony would hardly be refused as to the ineligibility of an elector, or the constitution of a can- vassing-board, or the condition of a State as under military rule at the time of the election. But where the fact alleged is one of conflicting evidence, and is not susceptible of proof within reasonable limits, then, I think, the fact must be presented properly autheuticated, as I have stated. " Evidence in this form, impeaching the correctness of the certificate of the Governor aud canvassing-board, can be furnished by the State or by either House of Congress ; by the State, which is interested that it shall not be defrauded of its vote in the election ; and by either House of Congress, which is interested that the forty-two millions of people composing the nation shall not be deprived of the President of their choice. " In this case the State of Florida has furnished evidence in an au- thentic form and conclusive in its character, that the Hayes electors were never appointed qnd that the certificate of the Governor aud of the can- vassing-board in that respect is false ; and that the Tilden electors were duly appointed. It has furnished the declaration of its Legislature in a statute affirming such to be the fact, and it has furnished a judicial de- termination of its Courts to the same etfect. " Soon after the canvass of the State board was closed, and its certifi- cate of the result was filed, Mr. Drew, who had been a candidate for the office of governor at the same election, against Stearns, the incumbent, ' and had been declared defeated by the action of the canvassers in ex- cluding votes for him, instituted proceedings by mandamus in the Su- preme Court of the State to compel the canvassers to count the votes given, as shown by the returns. In his petition for the writ he averred that, according to the returns received at the office of the Secretary of State, and on file there, a majority of the votes for the office of governor were cast for him ; aud charged against the canvassers the same disre- gard of the law of the State which is alleged against them in the count for the electors. Indeed, their action affected equally the candidates for 424 governor and for electors. The canvassers appeared to tlie writ, ajid pro- ceedings were conducted to a judgment on the merits. The ^ujireme Court adjudged that the canvassers had no authority to exclude the votes, by which exclusion alone Stearns had been declared elected, and directed them to restore the votes. In obedience to this judgment they restored the excluded votes, and certified a majority for Drew, who went into office and has ever since been the accepted Governor of the State. It was the exclusion of the same votes for electors that enabled the can- vassers to declare the Hayes electors chosen. In deciding this case the court gave a construction to the statute under which the canvassers acted, and delivered the opinion from which I have already quoted. "As soon as it was known that the canvassers had certified to the elec- tion of the Hayes electors, the Tilden electors filed an information in the nature of a quo warranto against them in one of the Circuit Courts of the State, to determine the validity of their respective claims to the office of electors. This proceeding was commenced upon the day on which the canvass was completed, and process was served on the Hayes electors before they had cast their votes. The Circuit Court had jurisdiction of the proceeding by the constitution of the State, the eighth section of which provides in terms that the Circuit Court and the judges thereof shall have power to issue writs o^ quo warranto. In the information the Tilden electors alleged that they were lawfully elected to the olfice of electors, and that the Hayes electors were not thus elected, but were usurpers. The Hayes electors appeared to the writ, and, first upon de- murrer, and afterwards upon an investigation of the facts, their right to act as electors was determined. And it was adjudged that the Hayes electors were never appointed, and were never entitled to assume and exercise the functions of that office, and Avere usurpers; but that the Tilden electors were duly appointed at the election on the 7th of Novem- ber, and were entitled on the 6th of December to receive certificates of election, and on that day and ever since to exercise the powers and per- form the duties of that office. It matters not that this judgment was not reached until after the Hayes electors had voted ; it was an adjudi- cation by a competent court upon the validity of their title as electors at the time they assumed to cast the vote of the State. That judgment remains in full force ; the appeal from it neither suspends its operation nor aff"ects its validity.* It is certainly entitled to great, if not conclu- sive, weight upon the subject before' us, especially when considered in connection with the action of the Legislature of the State. That action seems to me to be conclusive of the case. " After the Supreme Court in the Drew proceeding had given a construc- tion to the election law, and decided that the canvassers had disregarded its plain provisions, exercised judicial functions which they never pos- i, and unlawfully rejected votes, the Legislature took steps to have * The judgment was subsequently affirmed by the Supreme Court. 425 their {'onnt corrected witli respect to the electors, as it had been with I'espect to tlie <;overnor. And on the 17th of Jannary hist it passed ' An act to i)rovide for a recanvass according to the laws of the State of Florida, as interpreted by the Supreme Court, of the votes for electors of Presi- dent and Vice-President cast at the election held November 7, 187(5.' This act reciuired that the Secretary of State, the Attorney-General, and the Comptroller of Public Accounts, or any two of them, together with any other member of the Cabinet who might be designated by them, should meet forthwith at the office of the Secretary, pursuant to a notice from him, and form a board of State canvassers, and proceed to canvass the returns of election of electors of President and Vice-President held on the 7th of November, and determine and declare who were elected and appointed electors at that election, as shown by the returns on file. The act directed the canvassers to follow the construction of the law given by the Supreme Court defining the powers and duties of state canvassers. It directed that their certificate of the result should be recorded in the office of the Secretary of State, and a copy be published in one or more newspapers printed at the seat of government. The canvassers accord- ingly met and made the canvass directed, and certified that the Tilden electors, naming them, had received a majority of the votes and were duly elected. " Subsequent to this, and on the 26th of January, the Legislature passed another act in relation to the Tilden electors. That act recited, among other things, that — " ' Whereas the board of state canvassers constituted under the act ap- proved February 27, 1872, did interpret the laws of this State defining the powers and duties of the said board in such manner as to give them power to exclude certain regular returns, and did in fact under such interpreta- tion exclude certain of such regular returns, which said interpretation has been adjudged by the Supreme Court to be erroneous and illegal; " ' And whereas the late Governor, Marcellus L. Stearns, by reason of said illegal action and erroneous and illegal canvass of the said board of State canvassers, did erroneously cause to be made and certified lists of the names of electors of this State, containing the names of said Charles H. Pearce, Frederick C. Humphreys, William H. Holden.and Thomas W. Long — " The Hayes electors— and did deliver such lists to said persons, when in fact the said persons had not received the highest number of votes, and, on a canvass conducted according to the rules jiicscribed and adjudged as legal by tlu- Sui)reme Court, were not appointed as electors, or entitled to receis e such lists from the Governor, but Kobert Bullock, Robert B. Hilton, Wilkinson Call, and James E. Yonge — " The Tilden electors- were duly appointed electore, and were entitled to have their names com- pose the lists made and certified by the Governor, and to have such lists delivered to them : " ' Now, therefore, the people of the State of Florida, represented in Senate and Assembly, do enact, &c.' 42<; "The act then proceedeii to declare that the Tikleii electors, iianiiug them, were on the 7th of November rlul^' chosen and appointed by and on behalf of the State of Florida in such manner as the Legislature thereof had directed, and were from that day entitled to exercise all the powers and duties of the office of electors and had full power and au- thority on the 6th of December, 1876, to vote as such electors for Presi- dent and Vice-President, and to certify and transmit their votes as pro- vided by law. The statute then ratified, confirmed, and declared as valid, to all intents and purposes, the acts of such electors. It also au- thorized and directed the Governor to make and certify in due form and under the seal of the State three lists of the names of the electors, and to transmit the same, with an authentic copy of the act, to the President of the Senate, and declared that such lists and certificates should be as valid and effectual to authenticate in behalf of the State the appointment of such electors by the State as if they had been made and delivered on or before the 6th of December, 1876, and had been transmitted immediately thereafter, and that the lists and certificates containing the names of the Hayes electors were illegal and void. The act further authorized and directed the Governor to cause three other lists of the names of the Tilden electors to be made and certified and forthwith delivered to them, and required those electors to meet at the Capitol of the State and to make and sign three additional certificates of the votes given by them on the 6th of December, to each of which should be annexed one of the lists of the electors furnished by the Gov- ernor, and that one of the certificates should be transmitted by messen- ger, and one by mail, to the President of the Senate, and the third de- livered to the judge of the district, as required by law. " Pursuant to this act, the Governor of the State made and certified three lists of the Tilden electors and delivered the same to them, and the said electors assembled and certified that they had met on tlie 6th day of December at the Capitol and given their votes as electors for President and Vice-President by distinct ballots, the votes for President being for Mr. Tilden, and the votes for Vice-President being for Mr. Hendricks, and signed three certificates of their action, which were for- warded as required by law. The certificates were accompanied by the certified lists of the Governor, by a certified copy of the two acts of the State, and by a certified copy of the returns on file in the office of the Secretary of State, with a tabulated statement annexed showing the re- sult of the votes. The third certificate, which is before us, embraces all these proceedings. "Here, then, we have the highest possible evidence of the action of the State of Florida. The two sets of electors both conformed to every re- quirement of the law in their proceedings. One set, the Hayes electors, have the certificate of Governor Stearns of their election, based upon a certificate of the canvassing-board, which in its nature is mere prima- facie evidence; the other set, the Tilden electors, have an adjudication 4:^7 of a State Court of coniiu'tout jurisdiction, that the}' alone were tlie legally -appointed electors. They have the authoritative declaration of the Legislature of the State that they alone were entitled to act as elec- tors and vote for President on the 6th of December ; and they have a certificate of Governor Drew, based upon a recanvass of the votes, that they were duly appointed. And accompanying this evidence they have a certified copy of the returns, showing that they received a majority of the votes cast at the election. "Under these circumstances can it be possible that there is any serious question as to which of the two sets of electors was (hdi/ appointed / As the Legislature was alone authorized to determine the manner in which the electors should be appointed, it could furnish in its own way evi- dence of their acts as agents of the State, whatever may be the power of Congress for its convenience in requiring a certificate of the Governor. Were this transaction one that involved merely questions of property instead of a matter of great public and political interest, I do not think there is a lawyer on this Commission who could hesitate a moment as to the conclusive character of the evidence in favor of the Tilden electors. " In addition to this action of the State, Congress has moved in the mat- ter, and very properly so ; for the entire peo})le are interested in the elec- tion of their Chief Magistrate. No other ofTlicer can exercise so great an influence for good or for evil upon the whole country. He is not only the Commander-in-Chief of our Army and Navy, but he is the executor of our laws, the organ of intercourse with foreign nations, the bestower of offices of honor and trust, and is charged with the duty of maintaining- and defending the Constitution. Of all the obligations resting upon the representatives of the people none is greater than that of seeing that no one takes that high office with a defective and tainted title. Actino- upon this obligation, the House of Representatives early in the session, Avhen it was rumored that irregular and fraudulent proceedings had characterized the election in some of the States, and in Florida among others, appointed committees of investigation to ascertain the facts and report who in truth had been appointed electors by those States. One of these committees proceeded to Florida, and took there a large amount of testimony on the subject, which it has returned to the House with its conclusions as to the result. This committee has reported that the Til- den electors were duly appointed, concurring in that respect with the ac- tion of the State tribunals and the State Legislature. Their report and its conclusions, if adopted by the House, would undoubtedly have a con- trolling influence upon its action in counting the vote of the State, if this Commission had not been created, and for that reason they should be received, and if not accepted as final, at least be considered by us.* *" The committee presented to the House their report on the 31st of January, in which they declared that the evidence was perfectly conclu- sive that the State of Florida had cast her vote for the Tiklen"^ electors 428 " We are invested with all the powers of the two Houses of Congress to ascertain and decide what persons were ' duly appointed ' electors of Florida. By the law which has governed legislative hodies from their earliest existence, matters upon which they may be called to act can be investigated by committees appointed for that purpose. And either House may receive the testimony taken by its committee and proceed upon that, or accept the finding of its committee as its judgment, and act upon that as conclusive. And not until now has it ever been ques- tioned that the power of each House to take testimony in that way was not as extensive as the subjects upon which it could act. One of the gentlemen on this Commission [Mr. Edmunds] introduced into the Sen- ate during the present session resolutions for the appointment of commit- tees to inquire into the matters which we are now considering, and Sen- ators Morton and Frelinghuysen voted for them. One of the resolutions authorized the committees to inquire, among other things, ' whether the appointment of electors, or those claiming to be such, in any of the States has been made by force, fraud, or other means otherwise than in con- formity with the Constitution and laws of the United States and the laws of the respective States ; ' and in compliance with the resolutions the committees have passed weeks in their investigations. It certainly provokes surprise and comment to hear these gentlemen now deny that either House of Congress has any power to go behind the certificate of the Governor and that of the canvassing-board of the State, and to in- quire into the matters for which those committees were appointed. " It is said that the Hayes electors were de facto officers, and, therefore, that their action is to be deemed valid until they are adjudged usurp- ers. But they were no more de facto officers than the Tildeu electors. Both sets of electors acted at the same time and in the same building. The doctrine that the validity of the acts of de facto officers cannot be collaterally assailed, and that they are binding until the officers are ousted, is usually applied where there is a continuing office, and then and they closed with recommending the passage of the following reso- lution : '^ ' Resolved, That at the election held on November 7th, A. D. 1876, m the State of Florida, Wilkinson Call, J. E. Yonge, E. B. Hilton, and Rob- ert Bullock were fairly and duly chosen as Presidential electors, and that this is shown by the face of the returns, and fully substantiated by the evidence of the actual votes cast; and that the said electors having, on the first Wednesday of December, A. D. 1876, cast their votes for Samuel J. Tilden for President and for Thomas A. Hendricks for Vice-President, they are the legal votes of the State of Florida, and must be counted as " This resolution was subsequently adopted by the House by a vote of 142 yeas to 82 nays. " The Subcommittee on Privileges and Elections of the Senate also made an investigation of the Florida case, and a report which was ad- verse in its conclusions to those of the House committee, but the report was never adopted by the Senate." only on groiinds of public policy. I'rivulc individuals are not called upon, and in nio.st cases are not permitted, to incpiire into the title of persons clothed with the insignia of public oflice and in apparent pos- session of its powers and functions. They are recjuired, for the due order and i)eace of society, to respect the acts of such officers, and yield obedience to their authority, until in some regular mode provided by law their title is determined and they are ousted. As a consequence of the respect and obedience thus given, private individuals can claim, in all that concerns themselves and the public, for the acts of such officers, the same efficacy as though the officers were rightfully clothed with au- thority. The doctrine may be applied even to a single act of an officer where the office is a continuing one, but it may be doubted whether it is applicable to the case of a person simply charged with the performance of a single act. In such performance it would seem that the person could properly be regarded only as the official agent of the .State, and if, there- fore, he was without authority, his act would be void. If the doctrine is ever applicable to such a case, it cannot be applied, where the act per- Ibrmed has not accomplished its purpose before the want of right in the officer to do the act in question is determined. None of the reasons upon which the doctrine rests, of policy, convenience, or protection to private parties, has any application to a case of this kind. It does not seem, theretbre, to me that there is any force in the position." Justice Field concluded his ai'gument as follows : " Mr. President, I desire that this Coramis.sion should succeed and give by its judgment peace to the country. But such a result can only be at- tained by disposing of the questions submitted to us on their merits. It cannot be attained by a resort to technical subtleties and ingenious de- vices to avoid looking at the evidence. It is our duty to ascertain if pos- sible the truth, and decide who were in fact duly appointed electors in Florida, not merely who had received certificates of such appointment. That State has spoken to us through her courts, through her legislature and through her executive, and has told us in no ambiguous terms what was her will and whom she had appointed to express it. If we shut our ears to her utterances, and closing our eyes to the evidence decide this case upon the mere inspection of the certificates of the Governor and canvassing-board, we shall abdicate our powers, defeat the demands of justice, and disappoint the just expectations of the people. The country may submit to the result, but it will never cease to regard our action as unjust in itself, and as calculated to sap the foundations of public moral- ity.'' The ('omiiiission by u vote of eight to seven— each member voting according to his party predilections — came to the amazing conchision — and so decided — that it was " not roiiipefepf inider the CoiisfJtutioii (ind t/ie hue, as it existed 430 at the date of the passage of the said a.ct [creating the Electoral Commission'] to go into evidence aliunde the papers opened by the President of the Senate, in the presence of the two Houses, to prove that other persons than those regularly certified to by the Governor of the State of Florida in, and according to the determination and declaration of their appointm.ent by the board of State canvassers of said State, prior to the time required for the performance of their duties, had been appointed electors, or, by counter proof, to show that they had not, and that all proceed- ings of the Courts, or acts of the Legislature or of the Executive of Florida subsequent to the casting of the votes of the electors on the prescribed day, are inadmissible for any such purpose.'" This decision gave the vote of FloricLa to Mr. Hayes for President, and to Mr. Wheeler for Vice-President. The Louisiana Case. In the Louisiana case the frauds committed by its re- turning-board were astounding. The number of votes cast in the State for the Tihlen electors, taking the first name on the list as representing all, was 83,723, but the certificate of the returning-board put them at 70,508, turning Mr. Tilden's majority of more than thirteen thou- sand into a majority for Mr. Hayes. This reduction was made by throwing out more than 13,000 votes of legal voters, which had been cast for Mr. Tilden. More than 10,000 of these were thrown out upon the assumed au- thority of a statute of Louisiana which, in terms, gave the board power to throw out votes, upon examination and deliberation, " whenever, from any poll or voting- place, there should be received the statement of any super- visor of registration or commissioner of election, in form, as required by section 26 of this act, on affidavit of three or more citizens, of any riot, tumult, acts of violence, in- timidation, armed disturbance, bribery, or corrupt in- fluences, which prevented, or tended to prevent, a fair, 4.n free, and peaceable vole of nil (jualitied electors ciititU-d to vote at such pi>ll oi- voting-place." The only ground upon which a vote couhl liave been thrown out, for intimidation or other corrupt influence, as thus seen, was the statement of a sii[»c'rvisor of registration or commissioner of election, founded upon the affidavits of three citizens. The statements and atHdavits upon which the returning-hoard i)retende(l to justify its action, were al- leged hy eounsel to he forged and fabrieated by persons acting under its direction and with its knowledge; and proof of this allegation was ready to be produced, but the Commission held it inadmissible. Mr. Abbott, a mend:)er of the Commission, otiered the following resolution: " Eesohed, That evidence is admissible that the statements and affidavits purporting to have been made and forwarded to said returning-board in pursuance of the provisions of section 26 of the election hiw of 1872, al- leging riot, tumult, intimidation, and violence, at or near certain polls, and in certain parishes, tvere falsely labricated and forged by certain dis- reputable persons under the direction and with the knowledge of said returning-board, and that said returning-board, knowing said statements and affidavits to be false and forged, and that none of the said statements or afhdavits were made in the manner or form or within the time required by law, did knowingly, willfully, and fraudulently fail and refuse to can- vass or compile more than 10,000 votes lawfully cast, as is shown by the statements of votes of the commissioners of election." This otter the Commission rejected by a vote of 8 to 7. The principles enunciated in his opinion in the Florida ease, governed Justice Field's action, also, in that of Lou- isiana. In both of the cases he gave his vote in favor of the candidates of his party, and unquestionably in favor of truth and justice. The Commission by the same vote — 8 to 7 — came to a result similar to that reached in the Florida case, as to the conclusive character of the certifi- cates issued by the Governor of the State upon the deter- mination of the returning-board. Two of tlie persons certified to have been chosen as electors held, at the time of the election, offices of profit 4:!:^ under the United States — one being Surveyor-General for the District of Louisiana, and the other being Commissioner of the Circuit Court of the United States for that District. But the Commission held, by a like vote of 8 to 7, that it was " not competent to prove that anjj of S'lid per son ft .^o ,lit received at the election in Oregon, in Noviinlirr last, a higher nuniher of votes for electors of President and Vice-President than the candidates against them. Odell and Cartwright were accordingly elected ; of that there is no question. Watts would also have been elected had he been at the time eligible to the oflice. He was then and for some time afterward a postmaster at La PXyctte, in the State. The ofiSce he held was one of trust and profit under the United States; it imposed trusts, and was one to which a pe- cuniary compensation was attached. He was, therefore, ineligible to the otHce of an elector ; he was at the time incapable of being appointed to that office^ Such is the language of the Constitution, which declares that ' No Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.' The pro- hibition here made is unqualified and absolute. All the power of ap- pointment possessed by the State comes from the Constitution. The of- fice of elector is created by that instrument. Her power of selection is, therefore, necessarily limited by its terms ; and from her choice the class designated is excluded. The object of the exclusion was to prevent the use of the patronage of the (Jovernment to prolong the official life of those in power. '' The clause in question is one that operates by its own force. Like the prohibition' against passing an ex post facfo law, or a bill of attainder, or a law impairing the obligation of contracts, it executes itself; it re- quires no legislation to carry it into effect. As applied to Watts, it must be read as if hi.'? name were inserted in the text, and was as follows : ' The State of Oregon shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the Avhole number of Senators aad Representatives to which the State may be entitled in the Congress ; but Watts shall not be appointed one of them.' The power to appoint him not existing in the State, the votes cast for him availed nothing ; he was incapa])le of receiving them. He was not, therefore, appointed the third elector. "The provision of the Constitution excluding from the choice of the State as electors certain classes of officers is very ditferent from those provisions which create a mere personal disqualification to hold particu- lar offices. Thus the clause declaring that ' No person shall be a Repre- sentative who shall not have attained to the age of tAventy-five years,' 4:U and the clause that ' No person shall be a Senator who shall not have at- tained to the age of thirty years,' do not forl)id an election of persons thus disqualilied ; they only prohibit them from holding the office so long as the disqualification exists. They can take the office whenever that ceases. But with respect to electors the case is different. There is an in- capacity on the part of the State to appoint as electors certain classes of officers. Tliis distinction between ineligibility to an office and disquali- fication to hold the office is well marked. The one has reference to the time of election or appointment ; the other to the time of taking pos- session of the office. The ineligibility existing at the date of the elec- tion is incurable afterwards ; the disqualification to hold may be re- moved at any time before induction into office. If, therefore, at the time of the election persons are within the classes designated, their appoint- ment is impossible. The Constitution jirohibits it, and unless the prohi- bition is to be frittered away whenever conflicting with the wishes of po- litical partisans, it should be enforced equally with the provision fixing the number of electors. One clause of the same section cannot be disre- garded any more than the other, and surely the appointment of a greater number of electors than the State was entitled to have would be a vain proceeding. " The ineligibility of Watts was a fact known to the Governor. He had held the office of postmaster for years, and was in its possession and ex- ercise at the time of the election. This was a fact of public notoriety, and was not denied by any one. It was asserted by parties who protested against the issue of a certificate of election to him, and it was abund- antly proved. Besides this, the rule of law is that, whenever the ineligi- bility of a candidate arises from his holding a public office within the State, the people are chargeable with notice of the fact. The Governor is, of course, bound by the Constitution, and whenever the performance of a duty devolved upon him is affected by the existence of public offices under the United States, he may take notice officially of such offices and ascertain who are their incumbents. This is a doctrine which I had not supposed open to question. But I find that I am mistaken ; and I am told by some gentlemen on this Commission that it was not competent for the Governor to consider the question of the ineligibility of the canr didate, though made known to him in every possible way ; and that its determination involved the exercise of judicial functions, with which he was not invested. The general position advanced by them is that the duty of the Governor, as a commissioning officer, is to issue his certifi- cate of election to any one who may obtain, according to the determina- tion of the canvassers, the highest number of votes, however ineligible the person, and however imperative the prohibition may be against his taking the office. " To test this doctrine I put this question to these gentlemen : Suppos- ing the law declared that only white persons should be eligible to an of- fice, and the highest number of votes, according to the canvassers, should 4:!.') be cast iur ;i coloii'd man, would tlic (JoviTiior be. bound to issue uconi- mission to him ? The gentlemen answered that he woukl be thus bound ; that the Governor could not iu such case decide the question of the col- ored man's ineligibility. Mr. Senator Tlnnniuii ]iut this further ques- tion : Supposing the law of the State dcilarcd that only males should be elected to aii oliice, and the highest number of votes were cast, accord- ing to the report of the canvassers, for a female, would the Governor be bound to issue a commission to her? The gentlemen replied, as before, that he would be thus bound ; that the Governor could not determine the ineligibility of the party on the ground of her sex. There is some- thing refreshing in these days of sham and pretence to find men who will thus accept the logic of their principles, to whatever result they may lead. ''A different doctrine, I think, prevails in this country. Every depart- ment of government, when called upon to apply a provision of the Con- stitution, must, in the first instance, pass upon its construction and de- termine the extent of its obligation. A. just man empowered to issue a certificate of election will, it is true, hesitate to decide on the question of the ineligibility of a candidate, where there is any serious doubt on the subject, and for that reason to refuse his certificate. He will in such a case leave the matter to the determination of the judicial tribunals. But where there is no doubt on the subject, and the language of the Con- stitution forbidding the appointment is clear and imperative, he cannot, without violating his oath of office, disregard its mandate. " The law is laid down in numerous adjudications in conformity with these views. In the case of the State of Missouri on the relation of Bart- lej' against the Governor, which is cited by counsel, (39 Missouri, 399,) the doctrine for which I contend is stated with great clearness and pre- cision. There a mandamus was prayed against the Governor to compel him to issue a commission to the relator as one of the justices of the County Court. The Supreme Court refused the writ on the ground tliat the issuing of a commission was the exercise of political power, and not a mere ministerial act. After reciting that by the Constitution the duty devolved upon the Governor to commission all officers not otherwise pro- vided by law, the Court said : " ' The Governor is bound to see that the laws are faithfully executed, and he has taken an oath to support the Constitution. In the correct and legitimate performance of his duty he must inevitably have a dis- cretion in regard to granting commissions ; for should a person be elected or appointed who was constitutionally ineligible to hold any office of jn-ofit or trust, would the executive be bound to commission him when his ineligibility was clearly and positively proven ? If he is denied the ex- ercise of any discretion in such case, he is made the violator of the Con- stitution, not its guardian. Of what avail then is his oath of office? Or, if he has positive and satisfactory evidence that no election has been held in a county, shall he br niiuired to violate the law and issue a commis- sion to a per.son not rlictcil, licrause a clerk has certified to the election? In granting a commission the (iovernor may go behind the certificate to 29 deteniiiur whctlicr an :i])iilie'aiit is entitled to receive ii coimiiissioii or not, where tlie objection to the right of the applicant to receive it rests upon the gronnd that a constitutional prohibition is interposed.' "In Gnlick against New, also cited by counsel, (14 Indiana, 93,) the Supreme Court of Indiana used language substantially to the same effect, holding that the Governor, who was authorized to commission officers, might determine, even against the decision of a board of canvassers, whether an applicant was entitled to receive a commission or not, where the objection to his right to receive it rested upon a constitutional pro- hibition. "Other adjudications might be cited, but I believe these express the law as recognized generally throughout the country.* The question then arises, Watts being ineligible, whether the person receiving the next highest number of votes, he being eligible, was elected. Governor Grover held that such person was elected and issued a certificate of election to him. In his action in this respect he followed the rule which obtains in England, where, if the voters having knowledge of the ineli- gibility of a candidate persist in voting for him, their votes are consid- ered as thrown away, and the eligible candidate receiving the next high- est number of votes is declared elected. There are numerous decisions by courts of the highest character in this country to the same effect. They have been cited to us by counsel in their elaborate arguments, and "* In the debate which took place in the Senate on the 10th of Decem- ber, 1876, on the electoral vote of Oregon, Senator Thurman replied to some renuirks of Senator Morton upon the action of Governor Grover, as follows: " ' The Senator from Indiana says that the question whether Watts was eligible or not was a judicial question, and that the sole duty of the Gov- ernor was a ministerial duty, that he had no judicial function whatever, that it was, therefore, his duty simply to certify to the person who re- ceived the highest number of votes. He states that in the most absolute manner. If his statement be correct, then, if, instead of voting for Watts, the voters who cast their votes for him had voted for Queen Vic;- toria, it would have been theduty of the Governor to issue a certificate of election to Her Majesty the Queen that she was chosen elector of Presi- dent and Vice-President for the State of Oregon It is very true in Oregon, as in every State in the Union and in the Federal Government, that there is a department of government which is called the judiciary, and another department called the executive, and another the legislative, and the constitutions endeavor to partition out the great powers of government between these three departments; but does it fol- low from that, that no power to judge in any case can be devolved eith er upon the legislative department or upon the executive department of the government or an executive officer? We could not get along with the government one day on such an idea as that. The judicial power which the Governor of Oregon cannot exercise, which the Legislature cannot ex- ercise; the judicial power that Congress cannot exercise, that the Presi- dent cannot exercise, is the power of deciding litigated cases that arise in jurisprudence, and is a wholly different thing from the exercise of that (juasi-judical jwwer which executive officers are called upon every day to exercise and which they must exevcise.' 4:',7 ill view (.1' llii'iu :iii hoiii.r.ihl.- ami ci.iisriciit ions iiiaii lui^iht well li:i\ c acted as the GovoriiDr did. I'.iit I do not vie Id my assent to them ; they are not in harmony with tlie spirit ol' our system of elections. The thcmy of our institutions is tliat tii;' majority must govern; and tlicir will (iiiii only be carried out liy .giving the offices to those for whom they have voted. In accordance, with this view, the w^eigiit oi' judicial opinion in this country is, that votes given for au ineligible candidate an^ merely inefl^ectual to elect him, and tiiat they are not to be thrown ovit as blanks, and the election given to the eligible candidate having the ne.\t highest number of votes. It is fairer and more just to thus limit the operation of votes fir an im-ligihle candidate thin to give them, as said in the California case, 'the elfect of disapii.iiiiliug tlie popular will and electing to office a man whose pretensions t!ie jieople liad designed to reject.' — (Saunders vs. Hayues, 13 California, 151.) '' I cannot, therefore, vote that Cronin, the candidate having the next liighest number of votes to Watts, ' was duly appointed ' an elector of the State at the election in November. As there was, in my opinion, a failure to appoint a third elector, the question arises whether a vacancy was thus produced which the other electors could fill. In a general sense, an office may bo said to be vacant when it is not filled, though this condition arise from non-election, or the death, resignation, or re- moval of an incumbent. Cases have been cited bjfore us where the term ' vacancy ' is used in both these senses. Bat the question for us to decide is whether there was a vacincy within the meaning of the legislation of Congress. That legislation distinguishes between cases of non-election and cases of vacancy, evidently treating the latter as oijly occurring after the office has once been filled. I refer to sections 13:3 and 134 of the Kevi.sed Statutes, which are as follows: "'Sec. 133. Each State may by law provide for the filling of any va- cancies which may occur in its College of Electors, when such college meets to give its electoral vote. " ' Sec. 134. Whenever any State has held an election for the purpos > of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such man- ner as the Legislature of such State may direct.' '• Under this legislation the State of Oregon has provided for filling vacancies in its Electoral College, treating, as does Congress, a vacancy as arising only after the office has once been filled. Its code of general laws declares when vacancies in any offi3e shall be deemed to have oc- curred, as follows: '"Every office shall become vacant on the occurring of either of the following events before the expiration of the term of such othce : "'1. The death of the incumbent: " ' 2. His resignation ; " ' 3. His removal ; " ' 4. His ceasing to be an inhabitant of the district, county, town, or village for which lie shall have been elected or appointed, or within which the duties of liis office are requin^d to be discharged: 438 "'5. His conviction of ;in infamous crime, or of any offence involving a violation of his oath ; " ' 6. His refusal or neglect to take his oath of office, or to give or re- new his official bond, or to deposit such oath or bond within the time prescribed by law ; " ' 7. The decision of a competent tribunal declaring void his election or appointment.' — [General Laws of Oregon, page 576, section 48.) " On the subject of vacancies in the Electoral College, the same code of general laws provides that when the electors convene — " ' If there shall be any vacancy in the office of an elector, occasioned by death, refusal to act, neglect to attend, or otherwise, the electors pres- ent shall immediately proceed to fill, by viva voce and plurality of votes, such vacancy in the Electoral College.' — (General Laws of On/gon, page 578, section 59.) " It seems evident from these provisions that there could be no vacancy in the office of elector unless the office had once been filled. The events upon the occurrence of which the statute declares that a vacancy shall occur in any office, all imply the existence of a previous incumbent. " The word ' otherwise,' used with respect to a vacancy in the Electoral College, does not enlarge the scope of that term. The code having enumerated under one title the events upon which a vacancy may arise, including death, resignation, and other causes, proceeds to declare, under another title of the same chapter, that when a vacancy occurs in the of- fice of elector by death, refusal to act, or othenoise, meaning thereby any other cause which would remove an incumbent, the electors present may fill the vacancy. As here there never had been an incumbent, there could be no vacancy, in the sense of the statute, by death or otherwise. " The two electors, Odell and Cartwright, undertook to appoint Watts as the third elector, upon the assumption that he had resigned the office, and that a vacancy was thereby created. But inasmuch as he had never been elected, he had nothing to resign. The case was not one of a va- cancy, but of a failure to elect ; and the Legislature of the State had made no provision for a subsequent election in case of such failure, as it might have done under the legislation of Congress." It followed from these views that there were only two electors duly appointed by Oregon, and that, therefore, only two electoral votes from that State could be counted. Justice Field offered before the Commission three reso- lutions embodying the views thus expressed, but they were all rejected by a vote of eight to seven; and by that vote the Commission held: " Thai thowjh the evidence shoioed that Watts was a postmaster at the time of his election, that fact ions rendered immaterial hji his resir/7V/tion both r/s postmaster 4:i;» avd elector and his sahseqaent ('ppoiiitiiiciif /o till the CdiuDn-ii made by the Electoral Colle(/c.'' Three votes, instead of two. I'loin Orciioii, were, there- fore, counted for Mr. Hayes as 1 'resident and for Mr. Wlieeler as Vice-I'resident. The South Carolina Case. The principal objections to the count of the electoral vote of South Carolina were, that there had been no reg- istration of persons entitled to vote, as required by the constitution of the State; that the General Government, without authority of law, had stationed, prior to and during the election, in various parts of the State, at or near the polling places, detachments of the army of tlie United States, by whose presence the free exercise of the right of suiirage was prevented, and a fair election be- came impossible; and that over a thousand deputy mar- shals had been stationed at the polling places, who, by their arbitrary and illegal action, in obedience to the De- partment of Justice, had so intei'fered with the exercise of the right of suttVage that a fair election was impossible. On the hearing before the Commission proof was ready to be produced to establish these objections, but the Com- mission ruled it inadmissible. Justice Field offered the following resolutions: ^^Mcsolved, That evidence is admissible to show that prior to and dur- ing the election on the 7th day of November, 1876, in the State of South Carolina, thei-e were unlawfully stationed in various parts of the State, at or near the polling places, detachments of the troops of the army of the United States, by whose presence and interference qualified voters of the State were deprived of the right of suffrage, and a free choice by the peo- ple of Presidential electors was prevented. ^'Resolved, That evidence is admissible to show that at the election on the 7th day of November, 1876, in South Carolina, there were stationed at the several polling places deputy marshals of the United States exceed- ing one thousand in number, \)y whose unlawful action and interference, under orders from the Department of .Justice, qualified voters of the State were deprived of the right of suftrage, and a free choice by the people of Presidential electors was prevented." 440 TIk'sc were ivjected l)_v a vote of eight to seven; and till- (/oiiiiiiission resolved l>j a like vote, as i'oUows: "That it is not competent foi' the two Houses of (con- gress when asseni])led to count the votes for President and ^"ice-i'i'esident, by taking evidence, to in([uire into the regularity of the action of the President of the Vnited States in sending a military foree into any State for the preservation of order or the suppression of insurrecti<:)n and domestic violence, in order l)y such proof tO lay a ground for rejecting the electoral vote of said State;" and, also, that tliere existed "-no power in this Commis- sion, as there exists none in the two Houses of Congress, in counting the electoi'al vote, to inquire into the circum- stances under which the primary vote for electors was given." The vote of South C^arolina was accordingly cast for Mi'. Hayes as l^resident and for Mr. Wheeler as Vice-i*resi- dent. The votes of the four States of Florida, Louisiana, Ore- gon, and South Carolina being all counted for these gentle- men under the rulings of the Commission, they were de- clared l)y Congress elected by a majority of one vote. The general disappointment throughout the country at the action of the Commission was well expressed in the fol- lowing article from the Pitblic Ledr/er and D: these of the ri:. of eligibility to otTice, or of tak- inii part in family councils, of beiufjounrdian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning, are punishments prescribed by her code. The theory upon which our political institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness ; and that in the pursuit of happine.ss all avoca- tions, all honors, all positions are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined. Punishment not being, therefore, restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing depri- vation or susi)ension of political or civil rights, and the disabilities pre- scribed bjr the provisions of the Missouri constitution, being in effect punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforciemeut. The counsel for Missouri closed his argument in this case by presenting a striking picture of the struggle for ascendency in that State during the recent rebellion, between the friends and enemies of the Union, and of the fierce pas.sions which that struggle aroused. It was in the midst of the struggle that the present constitution was framed, although it was not adopted by the people until the war had closed. It would have been strange, therefore, had it not exhibited in its provisions some traces of the excitement amidst which the convention held its deliberations. It was against the excited action of the States under such influences as these that the framers of the Federal Constitution intended to guard. In Fletcher vs. Peck,t Mr. Chief Justice Marshall, speaking of such ac- tion, uses this language : " Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Consti- tution viewed with some appiehension the violent acts which might grow out of the feelings of the moment ; and that the people of the United States, in adopting that in.strument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong pa.ssions to which men are exposed. The restrictions on the legis- lative power of the States are obviously founded in this sentiment ; and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State." " ' No State shall pass any bill of attainder, c.r post facto law, or law impairing the obligation of contracts.' " •■■■4 Vol., :^77. t (i ('ranch. i:iT. 451) A bill of attainder is a legislative act which intlicts punishnieut with- out a judicial trial. If the punishment be less than death the act is termed a bill of pains and penalties. Within the meaning of the Con- stitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions exercises the powers and office of a judge; it assumes, in the language of the text- books, judicial magistracy ; it pronounces upon the guilt of the party without any of the forms or safeguards of trial ; it determines the sufl&- ciency of the proofs produced, whether conformable to the rules of evi- dence or otherwise ; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence. " Bills of this sort," says Mr. Justice Story, " have been most usually passed in England in times of re))ellion or gross subserviency to the Crown, or of violent ijolitical excitements ; periods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others."* These bills are generally directed against individuals by name, but they may be directed against a whole class. The bill against the Earl of Kil- tlare and others, passed in the reign of Henry VIII.,t enacted that " all such persons which be or heretofore have been comlbrters, abettors, par- takers, confederates, or adherents vmto the said " late earl, and certain otlier parties who were named, " in his or their false or traitorous acts and purposes, shall in likewise stand, and be attainted, adjudged, and convicted of high treason;" and that "the same attainder, judgment, and conviction against the said comforters, abettors, partakers, confederates, and adherents, shall be as strong and effectual in the law against them, and every of them, as though they and every of them had been specially, singularly, and particularly named by their proper names and surnames in the said act." . These bills may intlict punishment absolutely, or may inflict it con- ditionally. The bill against the Earl of Clarendon, passed in the reign of Charles the Second, enacted that the earl should suffer perpetual exile, and be for- ever banished from the realm ; and that if he returned, or was found in England, or in any other of the King's domains after the first of February, 1667, he should suffer the pains and penalties of treason ; with the pro- viso, however, that if he surrendered himself before the said first day of February for trial, the penalties and di.'^abilities declared should be void and of no elfect.J " A British Act of Parliament," to cite the language of the Supreme Court of Kentucky, " might declare, that if certain individuals, or a class of individuals, failed to do a given act by a named day, they should be deemed to be, and treated as convicted felons or traitors. Such an act * Commentaries on the Constitution, ? 1, 344. t28 Henry VIII., Chap. 18, 3 Stats, of the Realm, 694. + Printed 'in 6 IFowoll's State Trials, p. 391. 4.-,! coiiu's iirccis{l> wilhiii llic dcliiiil iuii of ;i liill ol at l;iiii(l<-i . and llic I'.iit;- lisli courts would enlbrcc it witlutiit iiulictmout or trial by jury." •■■ If llie clauses of the secoud articit- of the constitution of Missouri, to whicii wo liave referred, had in terms declared that Mr. Cunnnings was jiuilty, or should be hehl ji'uilty, of having been inarmed lioslility to tlie United States, or of liaving entei'ed tliat State to avoid Ijcinji enrolled or drafted into the military service of the United States, and, therefore, should be deprived of the right to preach as a priest of the Catholic Chureli, or to teach in any institution of learning, there could be no (|U(sli(>n that tlic clauses would constitute a bill of attainder within tlic meaning of tlic Federal Constitution. If these clauses, instead of incut ioning bis name liad declared that all priests and clergymen within tlu^ Slate of Missouri were guilty of these acts, or should be held guilty of tliem, and hence be subjected to the lilce deprivation, the clau.ses would be equally open to objection. And further, if these clauses had declared that all sucli priests and clergymen should be so held guilty, and be thus deprived, provided they did not, by a day designated, do certain specified acts, they would be no less within the inhibition of the Federal Constitution. In all these cases there would be the legislative enactment creating the deprivation without any of the ordinary forms and guards provided for the security of the citizen in the administration of justice by the estab- lished tribunals. The results which would follow IVom clauses of the character men- tioned do follow froni tlie clauses actually adopted. The difference be- tween the last case supposed and the case actually presented is one of form only, and not of substance. The existing clauses presume the guilt of the priests and clergymen, and adjudge the deprivation of their right to preach or teach unless the presumption be first removed by their expurgatory oath ; in other words, they assume the guilt and adjudge the punishment conditionally. The clauses supposed differ only in that they declare the guilt instead of assuming it. The deprivation is efteeted with equal certainty in the one case as it would be in the other, but not with equal directness. The purpose of the law-nuiker in the case supposed would be openly avowed; iu the case existing it is only disguised. The legal result must be the .same, for what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any ibrm, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding. We proceed to consider the secoud clause of what Mr. Chief Justice Mar-shall terms a bill of rights for the people of eacli State ; the clause which inhibits the passage of an ex post facto law. '■•' Gaines vs. Bufori), 1 Dana, 51(1. 30 4 5 -J By an r.r j)ost facto law is moant one wliich imposes a pnnislinient for an aet wliieh was not ])unishable at the time it was committed ; or im- poses additional pnnisliment to that then prescribed; or changes the rnles of evidence by which less or ditferent testimony is sufficient to con- vict than was then required. In Fletcher vs. Peck, Mr. Chief Justice Marshall defined an ex post facto law to be one " which renders an act punishable in a manner in which it was not puni.shable Avhen it was committed." " Such a law," said that eminent judge, " may inflict penalties on the person, or may in- flict pecuniary penalties which swell the public treasury. The Legislature is tlien prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime, which .was not declared by some previous law to render him liable to that punishment. Why, then, should violence be done to the natural meaning of words for the purpose of leav- ing to the Legislature the power of seizing for public use the estate of an individual, in tlft" form of a law annulling the title by which he holds the estate ? The Court can perceive no sufficient grounds for making this distinction. This rescinding act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed by him- self, but by those from whom he purchased. This cannot be etfected in the form of an ex post facto law, or bill of attainder; why, then, is it al- lowable in the form of a law annulling the original grant? " The act to which reference is here made was one passed by the State of Georgia, rescinding a previous act, under Avhich lands had been granted. The rescinding act, annulling the title of the grantees, did not, in terms, define any crimes, or inflict any punishment, or direct any judicial pro- ceedings ; yet, inasmuch as the Legislature was forbidden from passing any law by which a man's estate could be seized for a crime, which was not declared such by some previous law rendering him liable to that punish- ment, the Chief Justice was of opinion that the rescinding act had the ef- fect of an ex post facto law, and was within the constitutional prohibition. The clauses in the Missouri constitution, which are the subject of con- sideration, do not, in terms, define any crimes, or declare that any pun- ishment shall be inflicted, but they produce the same result upon the parties, against whom they are directed, as though the crimes were de- fined and the punishment was declared. They assume that there are persons in Missouri who are guilty of some of the acts designated. They would have no meaning in the constitution were not such the fact. They are aimed at past acts, and not future acts. They were intended es- pecially to operate upon parties who, in some form or manner, b3^ action or words, directly or indirectly, had aided or countenanced the rebellion, or sympathized with parties engaged in the rebellion, or had endeavored to escape the proper responsibilities and duties of a citizen in time of war ; and they were intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avocations. This deprivation is punishment : nor is it any less so 45:! becauso a. way is opened tor oscapc liom it h.v llic cxpuriiatory oatli. Tlic frainors oftlie constitution ot'Mi.ssouri knew at the tinif that whole chisses of iiidividiiuls would be unable to take the oath preseiibcd. To them there is no eseape provided ; to them the deprivation was intended to be, and is, absolute and i3er]ii'tual. To make the enjoyment of a right dependent upon an impossible eondilion is equivalent to an absolute denial of the right under any eonditiou, and such denial, enCoiccd lor a jnist aet, is nothing less than punishment imposed lor that act. It is a misapplica- tion of terms to call it anything else. Now, some of the acts to which the expurgatory oath is directed, were not offences at the time they were committed. It was no offence against any law to enter or leave the State of Missouri for the purpose of avoiding enrollment o'r draft in the military service of the United States, however much the evasion of such service might be the subject of moral censure. Clauses which prescribe a penalty for an aet of this nature, are within the terms of the definition of an ex post fad o law ; " they impose a punishment for an act not punishable at the time it was committed." Some of the acts at which the oath is directed constituted high offences at the time they were committed, to which, upon conviction, fine and imprisonment, or other heavy penalties were attached. The clauses which provide a further penalty for these acts are also within the definition of au c.r j7ost facto ]a\v ; "they impose additional punishment to that pre- scribed when the act was committed." And this is not all. The clauses in question subvert the presumptions of innocence, and alter the rules of evidence, which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. Tliey assume that the parties are guilty ; they call upon the parties to establish their innocence ; and they declare that such innocence can be shown only in one way; by an inquisition, in the form of an expurgatory oath, into the consciences of the i^arties. The olrjectionable character of these clauses will be more apparent if we put them into the ordinary form of a legislative act. Thus, if instead of the general provisions in the constitution the convention had provided as follows : Be it enacted, that all persons who have been in armed hostility to the United States shall, npon conviction thereof, not only be punished as the laws provided at the time the offences charged were committed, but shall also be thereafter rendered incapable of holding any of the of- fices, trusts, and positions, and of exercising any of the pursuits men- tioned in the second article of the constitution of Missouri ; no one would have any doubt of the nature of the enactment. It would be an ex post facto law, and void ; for it would add a new punishment for an old of- fence. So, too, if the convention had passed an enactment of a similar kind with reference to those acts which did not constitute offences. Thus, had it provided as follows: Be it enacted, that all persons who have here- 4")4 tolorc, at any lime, cuteicd or lel't the State of Jlissoiiii. witli intent to avoid enrollment or draft in the military service of the United States, shall, upon conviction thereof, be forever rendered incapable of holdiiij> any office of honor, trust, or profit in the State, or of teaching in any seminary of learning, or of preaching as a minister of the Gospel of any denomination, or of exercising any of the professions or pursuits men- tioned in the second article of the constitution; there would be no ques- tion of the character of the enactment. It would be an ex pod facto law, because it would impose a punishment tor an act not ])unisha])le at tlu' lime it was committed. The provisions of the constitution of Missouri accomplish precisely what enactments like those supposed would have accomplished. They impose the same penalty, without the formality of a judicial trial and conviction ; for the parties embraced by the supposed enactments would be incapable of taking the oath prescribed ; to them its requirement would be an impossible condition. Now, as the State, had she attempted the course supposed, would Jiave failed, it must follow that any other mode producing the same result must equally fail. The provisions of the Federal Constitution, intended to secure the liberty of the citizen, cannot be evaded by the form in which the power of the State is exerted. If this were not so, if that which cannot be accomplished by means looking directly to the end, can be accomplished by indirect means, the inhibition may be evaded at pleasure. No kind of oppression can be named, against which the framers of the Constitution intended to guard, which may not be effected. Take the case supposed by counsel ; that of a man tried for treason and acquitted, or if convicted, pardoned ; the Legislature may nevertheless enact that, if the person thus acquitted or pardoned does not take an oath, that he never has committed the acts charged against him, he shall not be permitted to hold any office of honor, or trust, or profit, or pursue any avocation in the State. Take the case before us ; the constitution of Missoiiri, as we have seen, excludes, on failure to take the oath prescribed by it, a large class of persons within her borders from numerous positions and pursuits ; it would have been equally Avithin the power of the State to have extended the exclusion so as to deprive the parties, who are unable to take the oath, from any avocation whatever in the State. Take still another case ; suppose that, in the progress of events, l)ersons now in the minority in the State, should obtain the ascendency, and secure the control of the government; nothing could prevent, if the constitiTtional prohibition can be evaded, the enactment of a j)rovision requiring every person, as a condition of holding any position of honor or trust, or of pursqiqg any avocation in the State, to take an oath that he had never advocated or advised or supported the imposition of the present expurgatory oath, Under this form of legislation the most fla- grant invasion of private rights, in periods of excitement, may be enacted, and individuals, even Ayhole classes, iiiav be deprived of political and civil rights. A question arose in New York, soon after tlie Treaty of I'eaeo in 1783, Upon a statute of tliat State, which involved a discussion of the nature alid charuetcr of tlu^se expurgatory oaths, wlu'U used as a means of in- flicting punishment for past conduct. The suhjcet was regarded as so important, and the fetiuirement of the oath such a violation of the fun- damental principles of t^ivil liberty, and the rights of llie citizen, that it engaged the attention of eminent lawyers and distinguished statesmen of the time, and among others of Alexander Itamilton. We will cite some passages of a paper left by him on the subject, in which, with his characteristic fullness and ability, he examiiu^stlie oath, and demonstrates that it is not only a mode of inflicting punishment, but a mode in viola- tion of all the constitutional guaranties, secured by the Revolution, of the rights and liberties of the people. "If we examine it,*' (the measure recjuiring the oath,) said this great lawyer, " with an unprejudiced eye, we must acknowledge, not only that it was an evasion of the treaty, but a subversion of one great principle of Social security, to wit: that every man shall be presumed innocent until he is proved guilty. This was to invert the order of things; and, instead of obliging the State to prove the guilt, in order to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalt3\ It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury It was a mode of inquiry who had committed any of those crimes to which the penalty of disqualifica- tion was annexed, with this aggravation, that it deprived the citizen of the benefit of that advantage, which he would have enjoyed by leaving, as in all other cases, the burthen of the proof upon the prosecutor. " To place this matter in a still clearer light, let it be supposed that instead of the mode of indictment and trial by jury the Legislature was to declare that every citizen, who did not swear he had never adhered to the King of Great Britain, should incur all the penalties which our treason laws prescribe. Would this not be a palpable evasion of the treaty, and a direct infringement of the Constitutiou ? The principle is the same in both cases, with only this difference in the consequences ; — that in the instance already acted upon the citizen forfeits a part of his rights ; in the one supposed he would forfeit the whole. The degree of punishment is all that distinguishes the cases. In either, justly consid- ered, it is substituting a new and arbitrary mode of prosecution to that ancient and highly-esteemed one recognized by the laws and the consti- tution of the State. I mean the trial by jury. " Let us not forget that the Constitution declares that trial by jury, in all cases in which it has been formerly used, should remain inviolate for- ever, and that the Legislature should at no time erect any new jurisdic- tion which should not proceed according to the course of the common law. Nothing can be more repugnant to the true genius of the com- mon law than such an inquisition as has been mentioned into the con- sciences of men If any oath with retrospect to past 45H conduct were to be made the condition on which individuals, who have resided within the British lines, should hold their estates, we should im- mediately see that this proceeding would be tyrannical, and a violation of the treaty ; and yet, when the same mode is employed to divest that right, which ought to be deemed still more sacred, many of us are so infatuated as to overlook the mischief. " To say that the persons who will be affected by it have previously forfeited that right, and that therefore nothing is taken away from them, is a begging of the question. How do we know who are the persons in this situation ? If it be answered, this is the mode taken to ascertain it, the objection returns, 'tis an improper mode, because it puts the most essential interests of the citizen upon a worse footing than we should be willing to tolerate where inferior interests were concerned, and because, to elude the treaty, it substitutes for the established and legal mode of investigating crimes and inflicting forfeitures, one that is unknown to the Constitution, and repugnant to the genius of our law." Similar views have frequently been expressed by the judiciary in cases involving analogous questions. They are presented with great force in the matter of Dorsey,* but we do not deem it necessary to pursue the subject further. The judgment of the Supreme Court of Missouri must be reversed, and the cause remanded, with directions to enter a judgment reversing the judgment of the Circuit Court, and directing that Court to discbarge the defendant from imprisonment, and suffer him to depart without day. Aud it is so ordered. * 7 Porter's Eeports, 294. SUPKEME OOUKT OF THE UNITEJ) 8TATJCS. l^X-l'ARTE GARI.AKI ttlr. Justice Field delivered the opinion of the Court* Oil the 2d of July, 1862, Congress passed an act prescribing an oatli to be taken by every person elected or appointed to any otBce of honor or profit under the Government of the United States, either in the civil, military, or naval dciiartments of the public service, except the I'resident, before entering upon the duties of his office, and before being entitled to its salary or other emoluments. On the 24th of January, 1865, Congress, by a supplementary act, extended its provisions so as to embrace attorneys and counsellors of the Courts of the United States. This latter act pro- vides that after its passage no person shall be admitted as an attorney and counsellor to the bar of the Supreme Court, and, after the 4th of March, 1865, to the bar of any Circuit or District Court of the United States, or of the Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath jjrescribed by the act of July 2d, 1862. It also provides that the oath shall be preserved among the files of the Court, and if any person take it falsely he shall be guilty of perjury, and, upon conviction, shall be subject to the pains and penal- ties of that offence. At the December Term, 1860, the petitionei- was admitted as an attor- ney and counsellor of this Court, and took and subscribed the oath then required. By the second rule, as it then existed, it was only requisite to the admission of attorneys and counsellors of this Court that they should have been such officers for three previous years in the highest Courts of the States to which they respectively belonged, and that their private and profes.sional character should appear to be fair. In March, 1865, this rule was changed by the addition of a clause re- quiring the administration of the oath in conformity with the act of Congress. In May, 1861, the State of Arkansas, of which the petitioner was a cit- izen, passed an ordinance of secession which purported to withdraw the * Delivered at the December Term, 1866, and reported in 4tli Wallace, Supreme Court Reiwrts, 374. 4')X .State Iroin tla- Union, and afterwards, in the same year, by another ordi- nance, attached herself to tlie so-called Confederate States, and by act of the Congress of that Confederacy was received as one of its members. The petitioner followed the State and was one of her representatives, first in the lower honse and afterwards in the Senate, of the Congress of that Confederacy, and was a member of the Senate at the time of the surrender of the Confederate forces to the armies of the United States. In July, 18(55, he received from the President of the United States a full pardon for all offences committed by his participation, direct or im- plied, in the Rebellion. He now produces his pardon and asks permission to continue to practice as an attorney and counsellor of the Court with- out taking the oath required by the act of January 24th, 1865, and the rule of the Court, which he is unable to take by reason of the offices he held under the Confederate (iovernment. He rests his application princi- pally upon two grounds : 1st. That the act of January -Jlth, 1S(J5, so far as it affects his status in the Court, is unconstitutional and void; and, 2d. That, if the act be constitutional, he is released from comi)liance with its provisions by the pardon of the President. The oath prescri))ed by the act is as follows : 1st. That the deponent has never voluntarily borne arms against the United States since he has been a citizen thereof; 2d. That he has not voluntarily given aid, countenance, counsel, or en- couragement to persons engaged in armed hostility thereto ; IM. That he has never sought, accepted, or attempted to exercise the functions of any office whatsoever, under any authority, or pretended au- thority, in hostility to the United States ; 4th. That he has not yielded a voluntary support to any pretended government, authority, power, or constitution within the I'nited States, hostile or inimical thereto ; and, 5th. That he will support an(i defend the Constitution of the United States against all enemies, foreign and domestic, and w ill bear true faith and allegiance to the same. This last clause is promissory only, and requires no consideration. The questions presented for our detei'mination arise from the other clauses. These all relate to past acts. Some of these acts constituted, when they were committed, offences against the criminal laws of the country ; others may, or may not, have been offences, according to the circumstances un- der which they were committed and the motives of the parties. The first clause covers one form of the crime of treason, and the deponent must declare that he has not been guilty of this crime, not only during the war of the Kebellion, but during any period of his life since he has been a citizen. The second clause goes beyond the limits of treason and embraces not only the giving of aid and encouragemeiit of a treasonable nature to a public enem.y, but also the giving of assistance of any kind to persons engaged in armed hostility to the Ignited States. The third 459 chmsc ;ii)plif.s (o the sc'(.'kinarties who have otfeiuled in any of the particulars embraced by these clauses. Audits object is to exclude theui from the profession of the law, or at least from its practice in the Courts of the United States. As the oath prescribed cautiot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as puui.shmeut for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate, and instead of lessening, increases its objec- tionable character. All enactments of this kind partake of the tiature of bills of pains and penalties, and are subject to the constitutional in- hibition against the passage of bills of attainder, under which general designation they are included. In the exclusion which the statute adjudges, it impo.ses a punishment for some of the acts specified, which were not punishable at the time they were committed; and for other of the acts it adds a new punish- ment to that before prescribed, and it is thus brought within the further inhibition of the Constitution against the passage of an ex post facto law. In the ca.se of Cummings against The State of Missouri, just decided, we have had occasion to consider at length the meaning of a bill of attain- der and of an e.c post facto law in the clause of the Constitution forbid- ding their passage by the States, and it is unnecessary to repeat here what we there said. A like prohibitioji is contained in the Con.stitution against enactments of this kind by Congress; and the argument pre- .sented in that case against certain clauses of the constitution of Missouri is equally applicable to the act of Congress under consideration in this ■' Suppose the act to have been mandatory to the Courts, to call upon all the members of their bar to answer on oath whether they had borne arms against the United States since they became citizens ; whether they had voluntarily given aid, counsel, countenance, or encouragement to per- s(Uis engaged in hostilities to the United States; whether they had sought or jierfoiined the functions of any office, under any authority, or pre- tended authorit}', in ho.stility to the United States ; or had yielded a vol- untary support to any pretended authority or government within the United States, or inimical thereto, and upon the failure of any one to answer such interrogations, and all elucidating interrogations, or to an- swer satisfactorily, it should be their duty to erase the name of such re- 4(10 The profession of au attorney and counsellor is not like an office cre- ated by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Con- stitution. Attorneys and counsellors are not officers of the United States ; they are not elected nor appointed in the manner prescribed by the Con- stitution for the election and appointment of such officers. They are of- ficers of the Court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the parties. In this Court the fact of the admission of such officers in the highest Court of the States to which they respectively belong, for three years preceding their application, is regarded as suffi- cient evidence of the possession of the requisite legal learning, and the statement of counsel, moving their admission, sufficient evidence that their i)rivate and professional character is fair. The order of admission cusant attorney from the rolls. . . . And suppose in such case the Attorney-General were asked whether, since he had been a citizen of the United States, he had borne arms against the United States ? The At- 'torney-General would be informed that he might answer or not ; but if he failed to answer he would lose his faculty of appearing in Court. If he answered in the affirmative he would forfeit his place, and if he an- swered falsely he would be liable to indictment He must have answered': ' May it please your Honors, the Constitution of the United States declares that " no person shall be HKLD to answer for A CAPITAL OR OTHER INFAMOUS OFFENCE, unless on the presentment of a grand jury ; that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or confession in open court ; and that no person shall be compelled in any criminal case to be a witness against himself." The act of bearing arms against the United States is an overt act of treason by a citizen thereof The demand upon a whole profession — a profession of which I am a member — to perform a ceremony that violates the Constitution is an indignity. I fulfill my oath of office to support this Constitution by declining to answer the question. I submit this answer to the conscience of the Court.' I feel satisfied that no Supreme Court would have insisted on the answer. . . " Let US suppose that the act had enumerated by name all the members of the bar of the different Courts of the United States, and had enacted that each and all of those must be prohibited from entering the Courts until they had made oath that they had not, in the course of their lives, violated any one of the TEN commandments. Some of these command- ments do not enter into the statute laws of the United States ; and others are not, perhaps, the subject of legislative action in any of the United States. Every one of the existing members of the legal profession would probably find himself in a condition not to answer to his own satisfaction such interrogatories to himself as the law would elicit. " Jeremy Taylor, in his exposition of those commandments — not a strained construction of them— shows that they include nearly all of the social, civil, and personal obligations of men. I am wholly unable to find any arguments in favor of my professional brethren to avoid the issue of such a test, that are not equally applicable to the act of January, 1865." —Campbell. 4H1 is tho jiulgmcnt of the Court tluit llic paitien possess tlic roqiiisitc (jiiali- tieations as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become otticers of the Court, and are responsible to it lor professional misconduct. They liold their office during good behavior, and can only be deprived of it tor misconduct ascertained and declared by the judgment of the Court, alter opportunity to be heard has been afforded.* Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the Court of Appeals of New York in the matter of the application of Cooper for admission.f " Attorneys and counsellors," said that Court, "are not only officers of the Court, but oflicers whose duties relate almost exclusively to proceedings of a judicial nature. And hence their appointment may, with propriety, be intrusted to the Courts, and the latter, in performing this duty, may very justly be considered as en- gaged in the exercise of their appropriate judicial functions." In E.r-partc Secombe,X a mandamus to the Supreme Court of the Terri- tory of Minnesota to vacate an order removing an attorney and counsellor was denied by this Court, on the ground that the removal was a judicial act. " We are not* aware of any case," said the Court, "' where a vinn- tlamus was issued to an inferior tribunal, commanding it to reverse or annul its decision, where the decision was in its nature a judicial act, and within the scope of its jurisdiction and discretion." And in the same * '■ It is a fundamental principle in jurisprudence that no man shall be depri^ed of his right without citation and an opportunity of being heard. In the jurisprudence of the Romans — the magistrates of mankind — it was a rule that no judgment should be given before citation. A Roman governor, in a remote and dcspistd province — a governor weak, fiiithless, and corrui)t — in the case of tlit ij,r ditference of opinion among the members of the Court as to cases covered by the pardon of the President, but there has been none as to the efl'ect and operation of a pardon in cases where it ap- l)lies. All have agreed that the pardon not merely releases the offender Irom tlie punishment prescribed for the offence, but that it obliterates in legal contemidation the oftence itself" — (16 Wallace, 151.) 4()4 It follows, from the views expressed, that the prayer of the petitioner must be granted."'' The case of R. H. i\Iarr is similar, in its main features, to that of the petitioner, and his petition must also be granted. And the amendment of the second rule of the Court which requires the oath prescribed by the act of January 24th, 1865, to be taken by attor- neys and counsellors, having been unadvisedly adopted, must he re- scinded. And it is so ordered. f * The President granted to Garland " a full imrdon and amnesty for all offences by him committed arising from participation, direct or implied, in the Rebellion." The term amnesty is not found in the Constitution, but is generally used to denote the clemency which is extended to a class of persons or to a whole community. Pardon is the generic term, and in- cludes every species of executive clemency, individual, general, condi- tional, and absolute.— (See The Federalist, No. 74 ; U. S. vs. Wilson, 7 Peters, 150; Ex-parte Wells, 18 How., 315.) t In the decision of these two cases, Cummings vs. The State of Mis- souri,' and Ex-parte Garland, Justices Wayne, Nelson, Grier, Clifford, and Field concurred. Chief Justice Chase, and Justices Swayne, Miller, and Davis dissented. Subsequently the Chief Justice expressed his concur- rence in the opinion of the majority ; and the decision was followed by the entire Court, with the ex(!eption of Mr. Justice Bradley, in the case of Pierce vs. Carskadon, decided at the December Term, 1872. — (16 Wallace, 234.) THt: CHAllACTEll AND JLTJ:)ICIAL LIFE CHIEF JUSTICE CHASE. REM Alil^S The Dinner of the Associated Alumni of the Pacific, IN KESPONSE TO THE SENTIMENT, "The Memory of the late Chief Justice Chase," Oakland^ Calif oriiia^ July i^^ ySyj, MR. JUSTICE FIELD, of the Supreme Cotir't of the United States. REMARKS. I feel highly honored, Mr. President and gentlemen of the Associated Alnmni, in being called upon to respond to the sentiment proposed. And yet it is difficult, it is impossible, in any remarks I may make in the few mo- ments allowed to me, to do justice to the character and public services of the great Judge and Statesman. Mr. Chase was so connected with the public events of the last quarter of a century, that no just appreciation of the in- tluence he exerted, or of the services he rendered, can be had without reciting to a great extent the civil and po- litical history of the country during that period. All this has been done in numerous addresses and publica- tions since his death, and you do not expect me on this occasion to go over the same ground. I shall not, there- fore, trace the history of that long struggle with the slave power, in which he so largely participated, from its com- mencement in 1831 to its final triumph in the Emancipa- tion Proclamation of President Lincoln and the adoption of the great constitutional Amendment, prohibiting for- ever slavery and involuntary servitude everywhere within the jurisdiction of the United States, except so far as reference to that struggle may serve to illustrate the char- acter of its greatest hero. Nor shall I. refer, except for the same purpose, to that grand system of finance which he created and organized, and which carried us through the greatest war of modern history, without a shock to the public credit, to the marvel and admiration of the world. I shall rather confine myself, in the very few re- marks I shall make, — and in this I suppose I shall carry out your wishes, — to what I know personally of Mr. Chase, 468 tiud shall give you the judgmeut I formed of him during a period of over eight years, in which I had the honor to be his associate. Mr. Chase was appointed Chief Justice in December, 1864. Previous to that time I had frequently met him in society in AVashiugton, but I had no relations with him beyond those which every member of the Supreme Court forms with the heads of the different Executive Departments. After that period I was necessarily brought in daily association with him during the sessions of the court, which usually lasted from four to six months each year. And it is with pride that I am able to state that during this entire period our relations were of the most cordial kind. There was a dignity of manner and a majesty of presence about him that repelled familiarity and inspired respect and reverence, and yet there was at the same time a gentleness and an indescribable grace of manner that won almost every one who approached him. It is the experience of nearly every one that familiarity with a person takes something from the re- spect and reverence which we should otherwise entertain for him. Great personages generally lose something of their greatness in our estimation by contact with them. No such result followed from contact with Mr. Chase. No man ever left his presence with a feeling less reverent than when he entered it. The intimacy of years only augmented admiration for his abilities and respect for his character. A very brief association with the Chief Justice showed me that the secret of his great successes lay in his intel- lectual integrity. His eminent abilities would have secured high official position and power at any time, but they alone would never have made him the champion of great principles in advance of their general recognition. By intellectual integrity, I mean that quality of mind which leads one not merely to seek the right and the 469 tnitli on all occasions and on all qiu'stions, bnt to roso- lut(>ly follow the liglit and truth, when once discovered, without regard to personal considerations. It is that quality of mind which insures at all times fidelity to one's convictions. It was that ciuality of mind which led Mr. Chase, when a mere youth, at the beginninj^- of his career, to take sides with the party, then insignificant in numbers, which opposed the further extension of slavery, and sought to limit its existence to the States Avhere it then prevailed. He did not wait to give this party his co-operation until it had grown sufficiently powerful to become an important element in the politics of the country. He did not consider as of any conse- quence the unpopularity and odium which would attach to him from his espousal of the cause of the despised and hated set of fanatics as they were then sneeringly called. He did not give the slightest weight, as against his con- victions, to the fact that wealth, influence, and position for him were all on the other side. He never hesitated as to his course for a single moment. He believed that every human being had a right, until it was forfeited by crime, to life, liberty, and the pursuit of happiness. He had read in the Great Charter of the Republic, the instru- ment which announced to the world the separation of the colonies from the mother country and the birth of a new nation, that Avith these rights all men were endowed, not by constitutions of government, not by legal enact- ments, not by decrees of courts, not by regulations of societ}^ but by their Creator ; and that to secure these rights — not to grant them, not to create them — govern- ments are instituted among men ; and to the maintenance of the truths, which in that great instrument are declared to be self-evident, but which Avcre practically denied by the nation, he at that early age devoted his life. You and I, Mr. President, remember well the time when to be known as favoriner the abolition of slaverv 470 was to be sneered at, despised, and persecuted. Such treatment had no terrors for this courageous young Chase. He had read the story of the persecuted Nazarenes ; how they had taken up the emblem of the ignominious death of their Master ; how they had painted it on their ban- ners, and made it the sign under which they conquered. So he, in imitation of them, was willing to take up the name of reproach, and under it to fight to the end. And so he did, and it was permitted to him to live and see the victory, and join with Mr. Lincoln in that crowning act of the great President's life, the Emancipation Procla- mation. He wrote those words in that instrument in which the President invoked upon the act of emancipa- tion the considerate judgment of mankind and the gra- cious favor of Almighty God. The same intellectual integrity accompanied Mr. Chase through his whole life, and was frequently exhibited under the most trying circumstances while he was on the bench. I will mention only one instance which came under my own observation ; it is the one which led to the first " Legal-Tender " decision. • It is undoubtedly true that the fame of Mr. Chase Avill rest principally, though not entirely, upon his career as Secretary of the Treasury. It was a grand thing to have created a system of finance which enabled the country to bear the enormous burdens imposed by the war ; greater, I venture to say, than were ever borne by any nation during a period of equal duration. Mr. Chase very natu- rally felt great pride in his system of measures, and in the creation of a national currency which followed. Among the provisions in the several acts of Congress authorizing the issue of United States notes was one which made* them a legal-tender for all debts, public and private, with certain specified exceptions. This provis- ion Mr. Chase thought at the time was necessary, and he recommended its adoption by Congress, although he came 471 to tliat conclusion with nmcli roluctanco and liositation. The ])r()vision was str(niuonsly oj^posed at the time by many of the aVilest lawyers of both houses of Congress as unnecessary and impolitic, as well as in conflict with the Constitution. It was urged with much force that a dol- lar in fact and a promise to pay a dollar could not be made by legislative power equivalent things ; and that the actual value of the notes would depend, by a univer- sal law of currency, upon their convertibility into gold in the market, and not upon mere Congressional declara- tion. The validity of the provision at last found its way for adjudication to the Supreme Court of the United States, where Mr. Chase presided as Chief Justice. In no more embarrassing position was a public man, possessing great pride of opinion, ever placed. A large portion of the people believed in the constitutionality of the provis- ion ; nearly all the Supreme Courts of the loyal States had judicially decided in its favor; three of the seven Justices then on the Supreme Bench were of the same opinion, and regard for consistency strongly urged the acquiescence of the Chief Justice. The question was argued and reargued, and presented in every possible shape to the court. The Chief Justice pondered long upon the subject, and looked at it in every possible light. He held in his hands the casting vote ; but fidelity to his convictions triumphed over his regard for consistency. He preferred to be the honest judge rather than the con- sistent statesman. He decided against the constitution- ality of the provision. He read the opinion of the court, and he thus alluded to his own change of views. He said : " It is not surprising that, amid the tumult of the late civil war and under the influence of apprehensions for the safety of the Eepublic almost universal, different views, never before entertained by American statesmen or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional 4:72 limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts ; many who did not doubt were silent. Some who were strongly averse to making government notes a legal-tender felt themselves con- strained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, recon- sidered their conclusions, and now concur in those which we have just announced." Subsequently, when, upon a change in the members of the court, a different decision was reached, Mr. Chase re- ferred directly to his own action in recommending the legal-tender provision, and said that examination and reflection under more propitious circumstances had satis- fied him that his original opinion was erroneous, and that he did not hesitate to declare it. (12 Wallace, 577.) I might enumerate other cases, not as striking, but also illustrative of his perfect intellectual integrity. But I must pass to other traits. Equally conspicuous with this integrity w^as the gen- erosity of his nature. Whilst the war lasted he was for carrying it on energetically, in order that it might be speedily closed ; but when the strife of arms had ceased, he was for actual and real peace — not one in name only. He believed that in the treatment of the South the charity which covers a multitude of sins, which the great Apostle declared to be the chief est of virtues, was also the highest political wisdom and policy. Proscription, persecution, and military commissions he hated and loathed in his inmost soul. From the time the last shot was fired he pleaded for universal amnesty, and to the proclamations of the President granting amnesty he gave the most lib- eral coustruction. He held Avith the majoritj' of the 473 court tli.it the benign prer()<];ative of mercy, vested in the President by the Constitution, coukl not be fettered by Congressional limitations; that the pardon gave to its recipient a new life ; that it blotted out his guilt and made him in the eye of the law as innocent as though he had never offended, and restored to him all rights of propertv not previously invested in others by judicial judgment. By his moderate and conciliatory principles, and by his open and generous nature, he had won troops of friends at the South, and on the day of his death there were no more sorrowful hearts in the Republic than those which beat in Richmond, the capital of the Confederacy. " When Mr. Chase went on the bench there were many persons, and among them were some of his warmest friends, who doubted whether his previous devotion to public affairs had not unfitted him for a judicial position. He had for years practically abandoned the profession of the law. He had given the better part of his life to the public, and was not at the time regarded as one of the leading jurists of the country, or even of his own State. He was not master of the learning of the common law, and he never made any pretensions to such learning. He possessed, however, what was far more important for his new position — a knowledge of constitiitional and public law ; of the workings of our complex system of government ; of the true relations between the General Government and the States, and of all public questions which have interested and divided the minds of the country since the adoption of the Constitution. He was familiar with all the legislation caused by or growing out of the Civil War; and more than all, he possessed a power to readily comprehend legal questions and a facility of mastering them which could seldom fail to lead to right judgments.- Whatever doubts on this head were entertained Avhen he was appointed Chief Justice, they were speedily dissi- 474 pated. He took from the outset his appropriate position as the head of the bench, and, at every term, until pros- trated by sickness, he gave some of the most important opinions of the court. Those opinions relate principally to questions growing out of the war, the legislation re- specting the currency, the condition of the States during the rebellion, the measures taken to restore them to their proper relations to the General Government, and the efltect of the proclamations of pardon and amnesty by the Presi- dent. They are models of their kind. They are written in a style at once lucid, terse, and forcible, and they ex- hibit great grasp of principles and great power to draw logical deductions from them. The Chief Justices of the United States have all been remarkable men, and were distinguished in public* life before they went on the bench. John Jay, the first Chief Justice, had been Governor of New York and its Chief Justice, President of the Continental Congress, Minister to Spain, and Secretary for Foreign Affairs under the Confederation. Whilst he Avas Chief Justice of the United States he was appointed by Washington Minister to England, the appointment not being at the time con- sidered incompatible with his judicial position. John Kutledge, the second Chief Justice, had been President of the colony of South Carolina, Governor of the State, and its representative in the Continental Congress. Oliver Ellsworth, the third Chief Justice, had been a Judge of the Superior Court of Connecticut, and a Senator in Congress from that State. While he was Chief Justice he was appointed special Minister to France, and con- tinued to hold both offices at the same time. John Mar- shall, the fourth Chief Justice, had been a member of the Executive Council of Virginia, a member of the Legisla- ture of that State and of the convention of the State called to ratify the Constitution of the United States, Minister to France, Member of Congress, and Secretary of State. 475 He was Secretary of State wIkmi he was a]t))<)iiit(Ml Cliicl" Justice, and lie held both ofHces until the close of tlu; ad- ministration of Mr. Adams. Roger B. Taney, the fifth Chief Justice, had been Attorney-General of the United States and Secretary of the Treasury. Mr. Chase, the sixth Chief Justice, had hoou twice Governor of Ohio, Senator of the ITnitcnl States from that State, and Secre- tary of the Treasury. All the Chief Justices, as I have said, were remarkal)le men, and were distinguished in public life before they were elevated to the bench. But in intellectual power and vigor, and ability to grasp great principles, Mr. Chase had not his superior among them. I should be glad, Mr. President, if I had time, to give you some account of the interest Mr. Chase felt in this State. Twice he had made arrangements to visit the State with me. Once the visit was postponed on account of the lateness of the season, and once by his ill health. Had he lived, he intended the present summer to pass some weeks in Colorado, and he stated to me that he might possibly extend his visit to California. He wanted to see this State ; he believed that it had a great future before it, and that it was destined to exert a mighty in- fluence for good upon the people of Asia and of the islands of the Pacific. But he believed that the State, to fulfil the great mission manifestly assigned by Providence to her, must be just in her dealings with those people. He beheved, what all right-thinking men do and must be- lieve, in the common fatherhood of God and the uni- versal brotherhood of man, and that the State Avould never accomplish her high destiny until she governed her conduct in conformity with this doctrine. The private Hfe of Mr. Chase was one of spotless purity. In every social relation he was without blemish. He carried the Christian virtues with him into his daily life. During my whole association with him for over eight 476 years, I never heard him utter an unkind word of a single human being, although conversation was frequently of persons who at that time were assailing his conduct and maligning his motives. I doubt whether so much can be said truthfully of any other man of this generation. That Mr. Chase was ambitious to administer the affairs of the nation there is no doubt, and had he been called to the Presidency there is every reason to believe that he would have rendered great services to the country, and added new claims to the admiration of the world. But there was enough of fulfilment of great purposes in his career to satisfy the ambition of any one. His name is indissolubly connected with the greatest events in our history, and for his services to his country and to mankind he will be remembered and honored so long as that history is read among men. CENTENNIAL CELEBKATlUN OnaNizATioN (IF 1111-; hwmi hwm HELD IN THE CITY OF NEW YORK, Febkuaky I, 1890. AD13KESSKS CHIEF JUSTICE FULLER and ASSOCIATE JUSTICE FIELD, Delivered at the Metropolitan Opera House, TOGETHER WITH THE SPEECH OF ASSOCIATE JUSTICE HARLAN, Made at the Banquet in the Evening. ADDRESS OF CHIEF JUSTICE FULLER. Mk. President : I rise to express to the New York State Bar Associa- tion, aud those who have co-operated witli it, on behalf of the Supreme Court of the United States, our appre- ciation of the admirable manner in which the Centennial Anniversary of the organization of the Judicial Depart- ment of the General Government is being celebrated, and our sense of the cordial hospitality with which we have been welcomed to the metropolitan cit}', where the first session of the court was held. Our acknowledgments are due for the terms in which that welcome has been ex- tended during these exercises, and for the discriminating aud eloquent addresses in historical and biographical re- view of the court and in exposition of its powers, the ends which it secures, and the vital functions which it exercises in the masterly constitutional scheme devised to perpetuate popular government — addresses worthy of the eminent men who have pronounced them, leaders in that great fraternity whence the membership of courts is de- rived, and upon whose assistance and support all courts rely. But it is not for me, Avhile tendering these acknowledg- ments, to enter u})on those comprehensive reflections sug- gested by the occasion, and which should find expression on our part. That grateful duty appropriately devolves upon one of those veteran jurists, the fruitful labors of whose many years have imparted imperishable fame to the tribunal and themselves. Three of them (Justices Miller, Field and Bradley), still shining in use, find w^ork of noble note may yet be done in the cause to which 480 their lives have been detlicated ; while aiiother (Justice Strong), the recipient of the liveliest attachment on the part of his brethren and of the people he has served so well, maintains in his well-earned retirement a never-ceas- ing interest in the administration of justice. And I deem it a peculiar felicity that at a celebration conducted under the auspices of the Bar of the State of New York — that Bar which has given to the Supreme Bench a Jay, a Livingston, a Thompson, a Nelson and a Hunt, and whose Blatchford continues most worthily to adorn it — I am enabled to introduce, as a representative of the court, a member of that same Bar who has reflected so much credit upon its training in more than thirty years of distinguished judicial service, Mr. Justice Field, of California. ADDREvSS OF MR. JUSTICE KIKLI). Mn. PltKSIDENT AND GkN'I'L1-:mKN : As the Chief Justice of tlu; United States has beeu pleased to refer to my former coinieetion with the Bar of this State aud city. I beg to say that I still claim, with pride, membership there, and trust that the claim will be allowed. Althi)ugh I remained in this city but a few years, swept away by the current which set, in 1849, for the Eldorado of the West, dreaming that I might per- haps in some way aid in laying the foundations of that great Commonwealth which every one saw was to arise on the Pacific, I carried with me, and still retain, pleasant recollections of the learned Bar of that period, and of its great lawyers, to whom I looked up with admiration, George Wood, George Griffin, Daniel Lord, Francis B. Cutting, Benjamin F. Butler, John Duer, Charles O'Conor, James B. Gerard, James T. Brady and others — names never spoken of throughout our laud without profound respect. In m}' subsequent life, in the varied experiences with which it has been marked, and with the extended acquaintance I have had with the legal prt)fession, I have always regarded them as among the ablest and most learned of great advocates. The Chief Justice in behalf of himself and his asso- ciates has expressed in fitting terms their high apprecia- tion of the courtesy extended to them by the Bar Associa- tion of the State of New^ York, the remembrance of w^hich they will carry through life. He has also expressed the pleasure which they have felt, in common with all here present, in listening to the addresses made upon the 482 organization of the Siipreme Court, and its plac6 in the constitutional system of the United States, and upon the lives and careers of the Justices who, by their expositions of the Constitution and their maintenance of its princi- ples, have shed lustre upon that tribunal. But far beyond these eloquent discourses, and beyond the power of ex- pression in words, is the eulogium presented by this vast assembly, — composed of great laAvyers, eminent Judges, and men distinguished in different departments of life for their honorable public services, — gathered from all parts of our country, to celebrate the centennial anniversary of the court's organization and to listen to the story of its labors during the hundred years of its existence, — an assembly presided over by one who has held the high office of President of the United States. In every age and with every people there have been celebrations for triumphs in war — for battles won on land and on sea — and for triumphs of peace, such as the open- ing of new avenues of commerce, the discovery of new fields of industry and prosperity, the construction of stately temples and monuments, or grand edifices for the arts and sciences, and for the still nobler institutions of charity. But never until now has there been in any country a celebration like this, to commemorate the establishment of a judicial tribunal as a co-ordinate and permanent branch of its government. The unobtrusive labors of such a department, the simplicity of its proceedings, un- accompanied by pomp or retinue, and the small number of persons composing it, have caused it to escape rather than to attract popular attention and applause. This celebration had its inspiration in a profound rev- erence for the Constitution of the United States as the sure and only means of preserving the Union, with its inesti- mable blessings, and the conviction that this tribunal has materially contributed to its just appreciation and to a 483 ready obedience to its iiutliority. For that Constitution the deepest reverence may well be entertaincul. Its adop- tion was essential to that dual <^overnnient, by which alone free institutions can Ixi maintained in .a conntrv so widely extended as ours, embracing every variety of cli- mate, furnishing different products, supporting different industries, and having in different sections people of different habits and pursuits, and in many cases of ditl'er- ent religious f;dths. Of this complex government — of its oi-igin and opera- tion — I may be pardoned if I say a few words, before speaking of its judicial department and of the peculiar functions which distinguish it from the judicial depart- ments of all other countries, and before s])eaking of the necessity of legislation, that its tribunal of last resort may be as useful in the future as we believe it has been in the past. Experience has shown that in a country of great terri- torial extent and varied interests, peace and lasting pros- perity can exist with a civilized people only when local affairs are controlled by local authority, and at the same time there are lodged in the general government of the country such sovereign powers as will enable it to regu- late the intercourse of its people with foreign nations, and between the several communities, protect them in all their rights in such intercourse, defend the country against invasion and domestic violence, and maintain the supremacy of the laws throughout its whole domain. This principle the framers of the Constitution acted upon in establishing the government of the Union, by leaving unimpaired the power of the States to control all matters of local interest, and creating a new gov- ernment of sovereign powers for matters of general and national concern. They thus succeeded in reconciling local self-government — or home-rule, as it is termed — with the exercise of national sovereignty for national 484 purposes. Under this dual goveruuieiit each State may pursue the policy best suited to its people aud re- sources, though uulike that of another State. Aud yet there can be no violent conflicts so long as the central government exercises its rightful power, and secures them against foreign invasion and internal violence, and extends to the citizens of each State protection in the others. The adaptation of this form of government for a far more extended territory than that existing at its adoption, has been demonstrated by the addition to the Union of new States with interests and resources in many respects essentially difi'erent from those of the original States, but which from experience of its benefits aud their instinctive yearning for nationality, have formed a like attachment to the Constitution. The prosperity which has followed this distribution of governmental powers not only attests the wisdom of the framers of the Constitution, but transcends even their highest expectations. In the history of no people — ancient or modern — has anything been known at all comparable with the progress of the countrj' since that time in the development of its resources, in the addition to its ma- terial wealth, in its application of science to works of public utility, in the increase of its po[)ulation, and in the general contentment and happiness of its people. The predictions of the most enthusiastic as to its growth and prosperity never equaled the stupendous reality. The Ccmstitution of the United States, which, in or- daining this complex government, has been productive of such vast results, was the outgrowth of institutions and doctrines inherited from our ancestors and applied under the new conditions of our country. A distin- guished English statesman has designated it as the most wonderful product struck off at a given time by the brain and purpose of man ; but this designation is only true as to the character of the instrument. Though it 4:85 rocoived definite form from the labors of tlio Convention of 1787, it was, in its division of governmental powers into three departments, and in its guaranties of private rights, the product of centuries of experience in the government of England. It had its roots deep in the past, as all enduring institutions h;iv<\ The colonists brought with them the great principles of civil liberty, which had been established there after many a con- flict with the Crown, and Avhicli Avere proclaimed in Magna Charta and in the Declaration of Rights. Our country was in this respect the heir of all thcJ ages. Not a blow was struck for liberty in the Old World that did not wake an echo in the forests of the New. Every vantage ground gained there on its behalf was courage- ously and stubbornly held here. Thus liberty, with all its priceless blessings, passed from country to country, from hemisphere to hemisphere, and from generation to generation. Claiming this inheritance, the Continental Congress, assembled in 1774 to provide measures to resist the encroachments of the British Crown, declared that the inhabitants of the colonies were entitled, " by the im- mutable laws of nature, the principles of the English Constitution and their several charters, to all the rights, privileges and immunities of free and natural-born sub- jects within the realm of England." And when a subse- quent Congress, in 1776, declared the independence of the colonies, it proclaimed that the rights of man to life, to liberty and to the pursuit of happiness — having then risen to a just appreciation of their true source — were held by him, not as a boon from king or parliament, or as the grant of any charter, but as the endowment of his Creator, and that to secure these rights — not to grant them — governments are instituted among men, deriving their just powers from the consent of the governed. The different communities, which, by the separation from the mother country, had ceased to be colonies and had be- 4S6 come States, when framing new constitutions to conform to their new conditions, inserted guaranties for the pro- tection of these rights, with other provisions required for the government of free commonwealths. It was foreseen, however, by members of the Conti- nental Congress and by thoughtful patriots throughout the country, that when the independence of the colonies was recognized by the mother country, as sooner or later it must be, they would be at once surrounded by difficul- ties and dangers, threatening their peace and even their existence as independent communities. It was plain to them that, without some common protecting power, dis- putes from conflicting interests and rivalries, incident to all neighboring States, would arise between them, which would inevitably lead to armed conflicts and invite the interference of foreign powers, ending in their conquest and subjection ; and that all that was gained by the ex- perience of centuries and by the revolution on behalf of the rights of man and free government would be lost. To provide against these apprehended dangers a fed- eration or league between the States was proposed as a measure of common defense and protection. Articles of Confederation were accordingly framed and submitted to the legislatures of the States, and finally adopted in 1781. But, as we all know, these articles provided no mode of carrying into effect the measures of the Confed- eration, or even the treaties made by it. They estab- lished no tribunal to construe its enactments and enforce their provisions. Its power was simpl}^ that of recom- mendation to the States, its framers appearing to have believed that the States had only to know what was necessary, in the judgment of Congress, for the general welfare, to provide adequate means for its accomplishment. A government which could only enforce its enactments upon the approval of thirteen distinct sovereignties nec- essarily contained within itself the seeds of its dissolu- 487 tion : it could not j^ivo tlie f:;on(>val protf^ctioii uoodcd. Having no power to exact obedience or to pnnisli for disobedience to its advisory ordinances, its recommenda- tions were disregarded not only by States but by individ- uals. But though the government of the Confederation failed to accomplish the purpose of its crention, its experience was of inestimable value ; it made clear to the whole country what was essential in ii general government in order to give the needed security and protection, and thus prepared the way for the adoption of the Constitu- tion of the United States. So out of the necessities of tlu^ times, to preserve whatever of freedom had been gained in the past, — gained after years of bitter experience, both in the mother country and in our owu,^ — and to secure its full fruition in tlie future, that instrument was framed and adopted. By it the great defects of the Confederation were avoided, and a government created with ample powers to give to the States and to all their inhabitants the needed security — a government taking exclusive charge of our foreign relations, representing the people of all the States in that respect as one nation, with power to de- clare war, make peace, negotiate treaties and form alli- ances, and at the same time securing a re]uiblican gov- ernment to each State and freedom of intercourse between the States, equality of privileges and immunities to citi- zens of each State in the several States, uniformity of commercial regulations, a common currency, a standard of weights and measures, one postal system, and such other matters as concerned all the States and their peojile. By the union of the States, which had its origin in the necessities of the war of the Revolution, which was de- clared in the Articles of Confederation to be perpetual, but which was rendered perfect only under the Constitu- tion, the political body known as the United States Avas created and took its place in the family of nations. With 488 that union the States became, in their relations to foreij^n countries and their citizens or subjects, one nation, and their people became one jjeople, with a government de- signed to be perpetual. A dissolution of the Union would, indeed, remit the States to their original position of sepa- rate communities, and the United States ceasing to be a ])olitical body would pass from the family of nations. But such a possibility was never considered by the framers of the Constitution ; no provisions are found within it con- templating such a result. As aptly stated by Chief Jus- tice Chase, "the Constitution in all its provisions looks to an indestructible Union composed of indestructible States." Its government was clothed Avitli the means to give effect to all its measures, which none have been able during the century of its existence successfully to resist. In the late civil war its strength was subjected to the severest test. But notwithstanding the immense forces wielded by the Confederate States, the extent of territory they controlled, and the vast numbers which rec- ognized their authority, the government of the Union never for one hour renounced its claim to supreme au- thority over the whole country, and to the allegiance of every citizen thereof. And when the contest ended — a contest which was the most tremendous and awful civil war known in history, — though made resplendent with unprecedented acts of heroic courage on both sides — the armies of the Confederate States were scattered, and their whole government overthrown. Whilst the fiery courage and martial spirit of their people extorted our admiration, — we are all of the same warrior race, — their attempts to break the Union only disclosed the immovable solidity of its foundations and the massive strength of its superstructure. It was the dash of the tempestuous waves against the eternal rock. And, now, in all its Avide domain, in respect to every right secured by the Constitution, no citizen of the 489 Ilo]mblic is be3'on(l its ])owor or so liniiiblo as to l)o beueath its protection. We can now confidently look forward to the time when the country will tnabrace hun- dreds of millions of people, and ar(; justiticd in believing that the States will be united thou, as now, by kindred sentiments, and common prid(> in the j:;reatness and the glory of the country. We have an abiding faith that when we shall have surpassed — as we are destined to do — in the vastness of our empire, as in the civilization and wealth of our people, ancient Rome in her greatest days, Ave shall continue to be, for all national purposes, as now, one nation, one people, one power. The crowning defect in the government under the Ar- ticles of Confederation was the absence of any judicial power ; it had no tribunal to expound and enforce its laws. In no one particular was the difference between that government and the one which superseded it more marked than in its Judicial Department. The Constitution de- clares not only in what courts the judicial power of the United States shall be vested, but to what subjects it shall extend. It is vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish, and it extends not only to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to contro- versies to wdiich the United States shall be a party ; to controversies between tw^o or more States ; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State claim- ing lands under grants of different States ; and between a State, or the citizens thereof, and foreign States, citizens or subjects ; but also to all cases in law and equity arising under the Constitution, the law-s of the United States and treaties made under their authority. Cases are considered as arising under the Constitution, laws and treaties of the 490 United States, whenever any question respecting that Con- stitution and those laws or treaties is presented in such form that the judicial power can act upon it^ — that is to say, when a right or claim is asserted for the maintenance of which a construction of that Constitution, or of a law or a treaty of the United States, is required. No government is suited to a free people where a judicial department does not exist with power to decide all judi- cial questions arising upon its constitution and laws. The Judicial Department established under the Con- stitution is thus coextensive ; it reaches to every judicial question which arises under the Constitutiou, treaties, and laws of the United States. It has devolved upon it, when such a question arises, beyond the ordinary func- tions of a judicial department under a single, as distin- guished from a dual, government, the duty of determin- ing whether the delegation of powers to Congress on the one hand, or the reservation of powers to the States on the other, is passed by either, and thus of preventing jarring conflicts. And in two particulars it is distinguished from the judicial department of any other country ; one, in that it can summon before it the States of the Union, and ad- just controversies between them, going even to the extent of determining disputes as to their boundaries, rights of soil and jurisdiction ; the other, in that it can determine the validity or invalidity of an act of Congress or of the States, when the validity of either is assailed in litigation before it. Controversies between different States of the world re- specting their boundaries, rights of soil, aud jurisdiction have been the fruitful source of irritation between their people, and not unfrequently of bloody conflicts. The history of many of the principalities of Germany in the fifteenth century is a history of desolating wars over dis- puted boundaries. The license, disorders and crimes usu- ally attendant upon border warfare were the cause of 491 widespread misery, until the (^stid)lislinuMit under INFaxi- milian of an Imperial chamber for the settlement of such controversies, which brought out of chaos order and tran- quillity in the (Jerniaii Empire. Between the States in this country, under the Articles of Confederation, there were also numerous conflicts as to boundaries and consequent rights of soil and jurisdic- tion. They existed between Pennsylvania and Virginia ; between Massachusetts and N(nv Hampshire ; and between Virginia and New Jersey. By the judicial article of the Constitution all such controversies are withdrawn from the arbitrament of war to the arbitrament of law. Thus, for the first time in the history of the world is the spec- tacle presented of a provision embodied in the funda- mental law of a country, that controversies between States — still clothed, for purposes of internal government, with the powers of independent communities — shall be submitted to the peaceful and orderly modes of judicial procedure for settlement — controversies which Lord Chancellor Hardwicke, in the case of Penn v. Lord Balti- more, said were worthy the judicature of a Roman senate rather than of a single judge. The practical application of the power of the Supreme Court in this particular has been fruitful of happy results. In 1837, it settled a disputed boundary between lihode Island and Massachusetts ; in 1849, it brought to an ad- justment the disputed line between Missouri and Iowa ; and, in 1870, it settled the controversy between Virginia and West Virginia as to jurisdiction over two counties within the asserted boundaries of the latter. Certainly no provision of the Constitution can be mentioned, more honorable to the country or more expressive of its Chris- tian civilization, than the one which provides that con- troversies of this character shall be thus peacefully settled. In determining them, the court is surrounded by no imperial guard ; l)y no bands of janissaries ; it has with 492 it only the moral judgment and the invisible power of the people. Should the necessity arise, that invisible power would soon develop into a visible and irresistible force. The power of the court to pass upon the conformity with the Constitution of an act of Congress, or of a State, and thus to declare its validity or invalidity, or limit its application, follows from the nature of the Con- stitution itself, as the supreme law of the land, — the sep- aration of the three departments of government into leg- islative, executive and judicial, — the order of the Con- stitution, — each independent in its sphere, and the specific restraints upon the exercise of legislative powers con- tained in that instrument. In all other countries, except perhaps Canada under the government of the Dominion, the judgment of the legislature as to the compatibility of a law passed by it with the constitution of the country has been considered as superior to the judgment of the courts. But under the Constitution of the United States, the Supreme Court is independent of other departments in all judicial matters, and the compatibility between the Constitution and a statute, whether of Congress or of a State, is a judicial and not a political question, and there- fore is to be determined by the court whenever a litigant asserts a right or claim under the dispvitedact for judicial decision. This power of that court is sometimes characterized by foreign writers and jurists'as a unique provision of a dis- turbing and dangerous character, tending to defeat the popular will as expressed by the legislature. In thus char- acterizing it they look at the power as one that may be exercised by way of supervision over the general legisla- tion of Congress, determining the validity of an enact- ment in advance of its being contested. But a declara- tion of the unconstitutionality of an act of Congress or of the States cannot be made in that way by the Judicial 493 Dcpjirtmoiit. The unconstitutioiKility ol" :iii ;u-t caiuiot be prououuced except as requii-ecl for the deteniiination oi" contested litigation. No such authority as su))posed wouhl be tolerated in this country. It would make the Su])renie Court a third house of (/ongixiss, and its con- clusions would be sul)ject to all the inlirniities of general legislation. /The limitations upon legislative powx'r, arising from the nature of the Constitution and its specific restraints in favor of private rights, cannot be disregarded without conceding that the legislature can change at will the form of our government from one of limited to one of uulim- / ited powers. / Whenever, therefore, any court, called upon to construe an enactment of Congress or of a State, the validity of which is assailed, finds its provisions incon- sistent with the Constitution, it must give effect to the lat- ter, because it is the fundamental law of the whole people, and, as such, superior to any law of Congress or any law of a State. Otherwise the limitations upon legislative power expressed in the Constitution or implied by it must be considered as vain attempts to control a power which is in its nature uncontrollable. This unique power, as it is termed, is therefore not only not a disturbing or dangerous force, but is a necessary consequence of our form of government. Its exercise is necessary to keep the administration of the govern- ment, both of the United States and of the States, in all their branches, within the limits assigned to them by the Constitution of the United States, and thus secure justice to the people against the unrestrained legislative will of either — the reign of law against the sway of arbi- trary power. As to the decisions of the Supreme Court respect- ing the constitutionality of acts of Congress or of the States, they have, as a general rule, been recognized as furthering the great purposes of the Constitution ; — as 494 where, iu Gihhont< v. Ogden, the court dechiretl the free- dom of the navigable waters of New York to all vessels, against a claim of an exclusive right to navigate them by steam vessels under a grant of the State to particular individuals ; — or where, as in Dai'tnwvth College v. Wood- icard, the court enforced the prohibition of the Constitu- tion against the impairment by the legislation of a State of the obligation of a contract, declaring void an act of New Hampshire which altered the charter of the college in essential particulars, and holding that the charter granted to the trustees of the college was a contract within the meaning of the Constitution and protected by it : and that the college was a private charitable institution not under the control of the legislature ; — or where, as in Brown v. Maryland, the court declared that commerce with foreign nations could not, under a law of the State, be burdened with a tax upon gocxis imported, before they were broken in bulk, though the tax was imposed in the form of a license to sell ; — or where, as in West07i v. Charles- ton, the court declared that the bonds and securities of the United States could not be subjected to taxation by the States, and thus the credit of the United States impaired ; — or where, as in McCuUoch v. Maryland and O shorn v. Bank of the United States, the court denied the authority of the States, by taxation or otherwise, to impede, burden, or in any manner control the means or measures adopted by the government for the execution of its powers ; — or where, as in Hall v. De Cuir ; The Wabash Railway Co. v. Illinois ; The Philadelphia and Southern Steamship Co. v. Pennsylvania, and other cases determined in the last quarter of a century, the court has removed barriers to interstate and foreign commerce interposed by State leg- islation. And so in the great majority of cases in which the va- lidity of an act of Congress or of a State has been called iu question, its decisions have been in the same direction, 495 to n])liol(l and carry oiit the provisions ol" tlio (constitution. In some instances the court, in the exercise of its powers in this respect, may have m.-ide mistakes. The judges would he more! than liuman it' tliis wvvo not so. They have never chdmed infalHbility ; they have often differed among themselves. All they have evei- asserted is, that they have striven to the utmost of their abilities to be right, and to perform the functions with which they are clothed, to the advancement of justice and the good of the country. In res})ect to their liability to err in tluiir conclusions this may be said — that in aihlition to the desire which must be ascribed to them to be just — the conditions under which they perform their duties, the publicity of their pro- ceedings, the discussions before them, and the public at- tention which is drawn to all decisions of general interest, tend to prevent any grave departure from the purposes of the Constitution. And, further, there is this correc- tive of error in every such departure ; it will not fit har- moniously with other rulings ; it will collide with them, and thus compel explanations and qualifications until the error is eliminated. Like all other error it is bound to die ; truth alone is immortal, and in the end will assert its rightful supremacy. And now, with its history in the century past, what is needed, that the Supreme Court of the United States should sustain its character and be as useful in the century to come ? I answer, as a matter of the first considera- tion, — that it should not be overborne with work, and by that I mean it should have some relief from the immense burden now cast upon it. This can only be done by legislative action, and in determining what measures shall be adopted for that purpose Congress wdll undoubtedly receive with favor suggestions from the Bar Associations of the country. The Justices al- ready do all in their power, for each one examines every 496 case and passes his iudiviJual jadguieut upon it. No case in the Supreme Court is ever referred to any one Justice, or to several of the Justices, to decide and report to the others. Every suitor, however humble, is entitled to and receives the judgment of every Justice upon his case. In considering this matter it must be borne in mind that, in addition to the great increase in the number of admiralty and maritime cases, from the enlarged com- merce on the seas, and on the navigable waters of the United States, and in the number of patent cases from the multitude of inventions brought forth by the genius of our people, calling for judicial determination, even to the extent of occupying a large portion of the time of the court, many causes, which did not exist upon its organization or during the first quarter of the century, have added enormously to its business. Thus by the new agencies of steam and electricity in the movement of machinery and transmission of intelligence, creating rail- ways and steamboats, telegraphs and telephones, and adding almost without number to establishments for the manufacture of fabrics, transactions are carried on to an infinitely greater extent than before between different States, leading to innumerable controversies between their citizens, which have found their way to that tribunal for decision. More than one-half of the business before it for years has arisen from such controversies. The facility with which corporations can now be formed has also increased its business far beyond what it was in the early part of the century. Nearly all enter- prises requiring for their successful prosecution large in- vestment of capital are conducted by corporations. They, in fact, embrace every branch of industry, and the wealth that they hold in the United States equals in value four- fifths of the entire property of the country. They carry on business with the citizens of every State as Avell as with foreign nations, and the litigation arising out of their 497 transactions is ouornious, j^ivinf^j viso to every possible question to which the jurisdiction ol" th(^ Federal courts extends. The numerous Proceediugs in the Superior Court of the State. Cha pter III 25 Proceedings in the United States Circuit Court. Chapter V -^2 Decision of the Case in the Federal Court. Chapter VI 34 The Marriage of Terry and Miss Hill. Chapter VII 40 The Bill of Revivor. Chapter VIII 46 The Terrys Imprisoned for Contempt. Chapter IX 56 Terry's Petition to the Circuit Court for a Release — Its Refusal — He Appeals to the Supreme Court — Unani- mous Decision against Him there. Chapter X 65 President Cleveland refuses to Pardon Terry — False Statements of Terry Refuted. Chapter XI 74 Terry's continued Threats to Kill Justice Field — Return of the Latter to Oalifornia in 1889. 4 PAGK. Chaptek XII 77 Further Proceedings in the State Court. — Judge Sullivan's Decision Reversed. Chaptek XIII H'.i Attempted Assassination of Justice Field. Resulting in Terry's own Death at the Hands of a Deputy United States Marshal. Chapteii XIV lO'i Sarah Althea Terry Charges Justice Field and Deputy Marshal Neagle with Miirder. Chaptek XV KKi Justice Field's Arrest and Petition for Release on Habeas Corpus. Chapter XVI 113 Judge Terry's Funeral — Refusal of the Supreme Court of California to Adjourn on the Occasion. Chaptek XVII IKi Habeas Corpus Proceedings in Justice Field's Case. Chapter XVIII U-i Habeas Corpus Proceedings in Neagle's Case. Chapter XIX 1(2 Expressions of Public Opinion. Chapter XX 176 The Appeal to the Supreme Court of the United States, and the Second Trial of Sarah Althea's Divorce Case. Chapter XXI 190 Concluding Observations. ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON THE STATE SUPREME BENCH. The most thrilling episode in the e.ventfnl life of Justice Field was his attem])ted assassination at Lathrop, California, on the 14th day of August, 1889, by David S. Terry, who had been Chief Justice of the State during a portion of Justice Field's service on that bench. Terry lost his own life in his desperate attempt, by the alertness and courage of David S. Neagle, a Deputy United States Marshal, who had been deputed by his principal, under an order from the Attorney-General of the United States, to protect Justice Field from the assassin, who had, for nearly a year, boldly and without concealment, proclaimed his murderous purpose. The motive of Terry was not in any manner connected with their association on the State supreme bench, for there had never been any but pleasant relations between them. Terry resigned from the bench in 1859 to challenge Senator Broderick of California to the duel in which the latter was killed. He entered the Confederate service during the war, and some time after its close he returned to California, and entered upon the practice of the law. In 1880 he was a candidate for Presi- dential elector on the Democratic ticket. His as- sociates on that ticket were all elected, while he was defeated by the refusal of a number of the old friends of Broderick to give him their votes. It is probable that his life Avas much embittered by the intense hatred he had engendered among the friends of Broderick, and the severe censure of a large body of the people of the State, not especially attached to the political fortunes of the dead Senator. These facts are men- tioned as furnishing a possible explanation of Judge Terrj-'s marked descent in character and standing from the Chief-Justiceship of the State to being the counsel, partner, and finally the husband of the discarded com- panion of a millionaire in a raid upon the hitter's property in the courts. It was during the latter stages of this litigation that Judge Terry became enraged against Justice Field, because the latter, in the dis- charge of his judicial duties, had been compelled to order the revival of a decree of the United States Cir- cuit Court, in the rendering of which he had taken no part. A proper understanding of this exciting chapter in the life of Justice Field renders necessary a narrative of the litigation referred to. It is doubtful if the an- nals of the courts or the pages of romance can parallel this conspiracy to compel a man of wealth to divide his estate with adventurers. Whether it is measured bv the value of the prize reached for, bv the character of the conspirators, or by the desperate means to which they resorted to accomplish their object, it stands in the forefront of the list of such operations. CHAPTER I. THE SHARON-HILL-TEREY LITIGATION. The victim, upon a share of whose enormous estate, commonly estimated at $15,000,000, these conspirators had set their covetous ej^es, was William Sharon, then a Senator from the State of Nevada. The woman with whom he had terminated his relations, because he be- lieved her to be dangerous to his business interests, was Sarah Althea Hill. Desirous of turning to the best advantage her previous connection with him, she sought advice from an old negress of bad repute, and the result was a determination to claim that she had a secret contract of marriage with him. This negress, who during the trial gave unwilling testimony to hav- ing furnished the sinews of war in the litigation to the extent of at least live thousand dollars, then consulted G. W. Tyler, a lawyer noted for his violent manner and reckless practices, who explained to her what kind of a paper would constitute a legal marriage contract under the laws of California. No existing contract was sub- mitted to him, but he gave his written opinion as to what kind of a contract it would be good to have for the pur- pose. The pretended contract was then manufactured by Sarah Althea in accordance with this opinion, and Tyler subsequently made a written agreement with her by which he was to act as her attorney, employ all nec- essary assistance, and pay all expenses, and was to have one-half of all they could get out of Sharon by their joint etibrts as counsel and client. This contract was negotiated by an Australian named Neilson, who was to have one-half of the lawyer's share. On the 7th of September, 1883, a demand was made upon Mr. Sharon for money for Miss Hill. He drove her emissary, Neilson, out of the hotel where he had called upon him, and the latter appeared the next day in the police court of San Francisco and made an affi- davit charging Mr. Sharon with the crime of adultery. A warrant was issued for the latter's arrest, and he was held to bail in the sum of $5,000. This charge was made for the avowed purpose of establishing the manu- factured contract of marriage already referred to, which bore date three years before. A copy of this alleged contract was furnished to the newspapers together with a letter having Sharon's name appended to it, addressed at the top to " My Dear Wife," and at the bottom to " Miss Hill." This pretended contract and letter Mr. Sharon denounced as forgeries. On the 3d of October, 1883, Mr. Sharon commenced suit in the United States Circuit Court at San Fran- cisco against Sarah Althea Hill, setting forth in his complaint that he was a citizen of the State of Nevada, and she a citizen of California ; 10 " that he was, and had been for years, an nnnaarried man ; that formerly he was the husband of Maria Ann Sharon, who died in May, 1875, and that he had never been the husband of any other person ; tliat there were two children living, tlie issue of that marriage, and also grandchildren, the children of a deceased daughter of the marriage ; that he was possessed of a large fortune in real and personal property ; was extensively engaged in business enterprises and ventures, and had a wide business and social connection ; that, as he was in- formed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of San Francisco ; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife ; that she falsely and fraud- ulently pretended that she was duly married to him on the twenty-fifth day of August, 1880, at the city and county of San Francisco ; that on that day they had jointly made a declaration of marriage showing the names, ages, and residences of the parties, jointly doing the acts required by the Civil Code of California to consti- tute a marriage between them, and that thereby they became and were husband and wife according to the law of that State. " The complainant further alleged that these several claims, representations, and pretensions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business, and social relations ; for the purpose of obtaining credit by the use of his name with merchants and others, and thereby compelling him to maintain her ; and for the purpose of harassing him, and in case of his death, his heirs and next of kin and legatees, into payment of large sums of money to quiet her false and fraudulent claims and pretensions. He also set forth what he was in- formed was a copy of the declaration of marriage, and alleged that if she had any such instrument, it was ' false, 11 forged, and coimteifeited ; ' that lie never, on the day of its date, or at any other time, made or execnted any such document or dechiration, and never knew or heard of the same until within a month previous to that time, and that the same was null and void as against him, and ouglit, in equity and good conscience, to be so de- clared, and ordered to be delivered up, to be annulled and cancelled." The complaint concluded with a prayer that it be ad- judged and decreed that the said Sarah Althea Hill was not and never had been his wife ; that he did not make the said joint declaration of marriage with her, or any marriage between them ; that said contract or joint declaration of marriage be decreed and adjudged false, fraudulent, forged, and counterfeited, and ordered to be delivered up and cancelled and annulled, and that she be enjoined from setting up any claims or preten- sions of marriage thereby. Sharon was a citizen of Nevada, while Miss Hill was a citizen of California.* * Note.— A coitrt of equity having jurisdiction to lay its hands upon and control forged and fraudulent instruments, it matters not with what pretensions and claims their validity may be asserted by their possessor ; whether they establish a marriage relation with another, or render him an heir to an estate, or confer a title to designated pieces of property, or create a pecuniary obligation. It is enough that, unless set aside or their use restrained, they may impose bur- dens upon the complaining party, or create claims upon his property by which its possession and enjoyment may be destroyed or impaired. (Sharon vs. Terry, 13 Sawyer's Rep., 406.) The Civil Code of Cali- fornia also declares that " a written instrument in respect to which there is a reasonable apprehension that, if left outstanding, it may cause serious iujury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be deliv- ered up or cancelled " (Sec. 3412). 12 Before the time expired in which Miss Hill was re- quired to answer the complaint of Mr. Sharon in the United States Circuit Court, but not until after the federal jurisdiction had attached in that court, she brought suit against him, November 1st, in a state Superior Court, in the city and county of San Fran- cisco, to establish their alleged marriage and then ob- tain a decree, and a division of the property stated to have been acquired since such marriage. In her com- plaint she alleged that on the 25th day of August, 1880, they became, by mutual agreement, husband and wife, and thereafter commenced living together as hus- band and wife ; that on that day they had jointly made a declaration of marriage in writing, signed by each, substantially in form as required by the Civil Code of California, and until the month of November, 1881, had lived together as husband and wife ; that since then the defendant had been guilty of sundry viola- tions of the marriage contract. The complaint also alleged that when the parties intermarried the defend- ant did not have in money or property more than live millions of dollars, with an income not exceeding- thirty thousand dollars a month, but that since their intermarriage they had by their prudent management of mines, fortunate speculations, manipulations of the stock market, and other business enterprises, accumu- lated in money and property more than ten millions of 18 dollars, and that now he had in his possession money and property of the value at least of fifteen millions of dollars, from which he received an income of over one hundred thousand dollars a month. The complaint concluded with a prayer that the alleged marriage with the defendant might be declared legal and valid, and that she might be divorced from him, and that an ac- count be taken of the common property, and that the same be equally divided between them. The campaign was thus fully inaugurated, which for more than six years disgraced the State with its vio- lence and uncleanness, and finally ended in bloodshed. The leading combatants were equally resolute and de- termined. Mr. Sharon, who was a man of remarkable will and energ}^ would have expended his entire for- tune in litigation before he would have paid tribute to those who thus attempted to plunder him. Sarah Altliea Hill was respectably connected, but had drifted away from her relations, and pursued, without re- straint, her disreputable course. She affected a reck- less and daredevil character, carrying a pistol, and exhibiting it on occasions in cow-boy fashion, to con- vey the impression that those who antagonized her had a dangerous character with whom to deal. She was ignorant, illiterate, and superstitious. The forged document which she thought to make a ])assport to the enjoyment of a share of Sharon's millions was a 14 clumsy piece of work. It was dated August 25, 1880, and contained a clause pledging secrecy for two years thereafter. But she never made it public until Sep- tember, 1883, although she had, nearly two years before that, been turned out of her hotel by Sharon's orders. At this treatment she only whimpered and wrote begging letters to him, not once claiming, even in these private letters to him, to be his wife. She could then have published the alleged contract without any violation of its terms, and claimed any rights it conferred, and it is obvious to any sane man that she would have done so had any such document then been in existence. Although Sharon's case against Sarah Althea Hill was commenced in the federal court before the com- mencement of Miss Hill's case against Sharon in the state court, the latter case was first brought to trial, on the lOth of March, 1884. CHAPTEE II. rROCEEDINGS IN THE SUPERIOH COURT OF THE STATE. Mr. Sharon defended in the state court, and prose- cuted in the federal court with equal energy. In the former he made an affidavit that the pretended mar- riage contrjict was a forgery and applied to the court for the right to inspect it, and to have photographic copies of it made. Sarah Althea resisted the judge's order to produce the document in question, until he informed her that, if she did not obey, the paper would not be admitted as evidence on the trial of the action. On the second day of the trial in the state court Miss Hill reinforced her cause by the employment of Judge David S. Terry as associate counsel. He brought to the case a large experience in the use of deadly weapons, and gave the proceedings something of the character of the ancient " wager of battle." Numerous auxiliaries and supernumeraries in the shape of lesser lawyers, fighters, and suborned wit- nesses were employed in the proceedings as from time to time occasion required. The woman testified in her own behalf that upon a visit to Mr. Sharon's office he had offered to pay her $1,000 per month if she would become his mistress ; that she declined his offer in a 16 business-like manner, without anger, and entered upon a conversation about getting married ; she swore at a subsequent interview she drafted a marriage contract at Sharon's dictation. This document, to which she testified as having been thus drawn up, is .as follows : " In the city and county of San Francisco, State of CaUfornia, on the 25th day of August, A. D., 1880, I, Sarah Althea Hill, of the city and county of San Fran- cisco, State of California, aged twenty-seven years, do here, in the presence of almighty God, take Senator William Sharon, of the State of Nevada, to be my law- ful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon, of the State of Nevada. " SARAH ALTHEA HILL. " August 25, 1880, San Francisco, Cal. " I agree not to make known the contents of this paper or its existence for two years unless Mr. Sharon, himself, sees fit to make it known. " SAEAH ALTHEA HILL. " In the city and county of San Francisco, State of California, on the 25th day of August, A. D. 1880, I, Senator William Sharon, of the State of Nevada, aged sixty years, do here, in the presence of Almighty God, take Sarah Althea Hill, of the city and county of San Francisco, California, to be my lawful and wedded wife, and do here acknowledge myself to be the husband of Sarah Althea Hill. " WILLIAM SHARON, " Nevada. " AucxUST 25, 1880." In his testimony Mr. Sharon contradicted every ma- 17 terial statement made by Sarah Altliea Hill. He de- uied every circumstance connected with the alleged drawing up of the marriage contract. He testitied that on the 7tli day of November, 1881, he terminated his relations with and dismissed her, and made a full settlement with her by the payment of $3,000 in cash, and notes amounting to $4,500. For these she gave him a receipt in full. He charged her with subsequently stealing that receipt at one of two or three visits made by her after her discharge. It is unnecessary to review the voluminous testimony introduced by the parties in support of their respective contentious. The alleged contract was clearly proven to be a forgery. A number of witnesses testified to conversations had with Miss Hill long after the date of the pretended marriage contract, in which she made statements entirely inconsistent with the existence of such a document. She employed fortune-tellers to give her charms with which she could compel Mr. Sharon to marry her, and this, too, when she pretended to have in her possession the evidence that she was already his wife. Not an appearance of probability attended the claim of this bold adventuress. Every statement she made concerning the marriage contract, and every step she took in her endeavor to enforce it, betrayed its false origin. The trial of the case in the state court continued 18 from Mareli lOtli until Ma}^ 28th, when the summer re- cess intervened. It was resumed July 15th, and occu- pied the court until September 17tli, on which day the argument of counsel Avas concluded and the case sub- mitted. No decision was rendered until more than three months afterwards, namely, December 24th. Nearly two months were then allowed to pass before the decree was entered, February 19, 1885. The case was tried before Judge Sullivan without a jury, by consent of the parties. He decided for the plaintiff, holding the marriage contract to be genuine, and to constitute a valid marriage. It was manifest that he made his decision solely upon the evidence given by Sarah Altliea herself, whom he nevertheless branded in his opinion as a perjurer, suborner of perjury, and forger. Lest this should seem an exaggeration his own words are here quoted. She stated that she was introduced by Sharon to certain parties as his wife. Of her statements to this effect the Judge said : " Plaintiff's testimony as to these occasions is directly contradicted, and in my judgment her testimony as to these matters is wilfully false." Concerning $7,500 paid her by Sharon, which she alleged she had placed in his hands in the early part of her acquaintance with him, the Judge said : " This claim, in my judgment, is utterly unfounded. No such advance was ever made."' 19 At another place in his opinion the Ji-i(l<>-e said : " Plaintiff claims that defendant wrote her notes at different times after her expulsion from the Grand Hotel. If snch notes were written, it seems strange that tlie}^ have not been preserved and produced in evidence. I do not believe she received any such notes." With respect to another document which purported to have been signed bv Mr. Sharon, and which Sarah Althea produced under compulsion, then withdrew it, and failed to produce it afterwards, when called for, saving she had lost it, Judge Sullivan said : " Among the objections suggested to this paper as ap- pearing on its face, was one made hj counsel that the signature was evidently a forgery. The matters recited in the paper are, in my judgment, at variance with the facts it purports to recite. Considering the stubborn manner in which the production of this paper was at first resisted and the mj-sterious manner of its disap- pearance, I am inclined to regard it in the light of one of the fabrications for the purpose of bolstering up plaintiff's case. I can view the paper in no other light than as a fabrication." In another part of his opinion Judge Sullivan made a sort of a general charge of perjury against her in the following language : " I am of the opinion that to some extent plaintiff' has availed herself of the aid of false testimony for the purpose of giving her case a better appearance in the eyes of the court, but sometimes parties have been known to resort to false testimon}', where in their judg- 20 ment it would assist them in prosecuting a lawful claim. As 1 understand the facts of this case, that was done in this instance." In another place Judge Sullivan said : " I have discussed fully, in plain language, the nu- merous false devices resorted to by the plaintiff for the purpose of strengthening her case." Miss Sarah and her attorneys had now come in sight of the promised land of Sharon's ample estate. Eegu- lar proceedings, however, under the law, seemed to them too slow ; and besides there was the peril of an adverse decision of the Supreme Court on appeal. They then decided upon a novel course. Section 137 of the Civil Code of California provides that while an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and to prosecute or defeat the action. The enterprising attorneys, sharing the bold spirit of their client, and presuming upon the compliance of a judge who had already done so well by them, went into the court on the 8th of January, 1885, and modestly demanded for Sarah Althea, upon the sole authority of the provision of law above quoted, $10,000 per month, as the money necessary to enable her to support herself, and 1150,000 for attorneys' fees to prosecute the action. This was to include back pay for thirty-eight months, making a 21 Slim of ^380,000, which added to the $150,000, attor- nejs' fees, would have made a grand total of $530,000. This was an attempt, under the color of a beneficent law^, applicable only to actions for divorce, in which the marriage was not denied, to extort from a man more than one-half million dollars, for the benefit of a woman, seeking first to establish a marriage, and then to secure a divorce, in a case in which no decree had as yet been entered, declaring her to be a wife. It was not merely seeking the money necessary to support the plaiutilt' and prosecute the case ; it was a request that the inferior court should confiscate more than half a million dollars, in anticipation of a decision of the Supreme Court on appeal. It was as bold an attempt at spoliation as the commencement of the suit itself. The Supreme Court of the State had decided that the order of a Superior Court allowing alimony during the pendency of any action for divorce is not appealable, but it had not decided that, under the pretence of granting alimony, an inferior judge could apportion a rich man's estate among champerty lawyers, and their adventurous client, by an order from which there could be no appeal, made prior to any decree that there had ever been a marriage between the parties, when the fact of the marriage was the main issue in the case. The counsel for Sharon insisted upon his right to have a decree entered from which he could appeal, before 22 being thus made to stand and deliver, and the court entertained the motion. Upon this motion, among other affidavits read in opposition, was one by Mr. Sharon himself, in which he recited the agreement between Miss Hill and her principal attorney, George W. Tyler, in which she was to pay him for his services, one-half of all she might receive in any judgment obtained against Sharon, he, Tyler, advancing all the costs of the litigation. The original of this agreement had been tiled by Tyler with the county clerk immediately after the announcement of the opinion in the case as an evidence of his right to half of the proceeds of the judgment. It was con- clusive evidence that Sarah Althea required no money for the payment of counsel fees. After the filing of a mass of affidavits, and an exhaust- ive argument of the motion. Judge Sullivan rendered his decision, February 16, 1885, granting to Sarah Althea Hill an allowance of |2,500 per month, to take effect as of the date of the motion, January 8, 1885, and further sums of $2,500 each to be paid on the 8th day of April, and of each succeeding month until further order of the court. This the Judge thought reasonable allowance " in view of the plaintiff's present circumstances and diffi- culties." For counsel fees he allowed the sum of $60,000, and at the request of the victors, made in ad- vance, he divided the spoils among them as follows : 23 To Tyler and Tyler $25,000 To David S. Terry 10,000 To Moon and Flournoy 10,000 To W. H. Levy 10,000 To Clement, Osmond and Clement. . . 5,000 By what rule $2,500 was awarded as a proper monthly allowance to the woman whose services to Mr. Sharon had commanded but §500 per month it is difficult to conjecture. It was benevolence itself to give $60,000 to a troop of lawyers enlisted under the com- mand of Tyler, who had agreed to conduct the pro- ceedings wholly at his own cost, for one-half of what could be made by the buccaneering enterprise. It ! seemed to be the purpose of these attorneys to see ] how much of Mr. Sharon's money they could, with Judge Sullivan's assistance, lay their hands upon be- fore the entry of the judgment in the case. From the judgment an appeal could be taken. By anticipating its entry they thought that they had obtained an order from which no appeal would lie. It was not until three days after this remarkable order was made that the decree was entered by Judge Sullivan declaring plaintiff and defendant to be hus- band and wife ; that he had deserted her, and that she was entitled to a decree of divorce, with one-half of the common propert}^ accumulated by the parties since the date of what he decided to be a valid marriage contract. 24 Sharon appealed from the final judgment, and also from the order for alimony. Notwithstanding this ap- peal, and the giving of a bond on appeal in the sum of $300,000 to secure the payment of all alimony and counsel fees, Judge Sullivan granted an order directing Mr. Sharon to show cause why he should not be pun- ished for contempt in failing to pay alimony and coun- sel fees, as directed by the order. The Supreme Court, upon application, granted an ordei" temporarily staying proceedings in the case. This stay of proceedings was subsequently made per- manent, during the pendency of the appeal. Mr. Sharon died November 15, 1885. That very day had been set for a hearing of Sharon's motion for a new trial. The argument was actually com- menced on that day and continued until the next, at which time the motion was ordered off the calendar because meantime Mr. Sharon had deceased. CHAPTER III. rROfEEDINGS IN THE UNITED STATES CIRCUIT COURT. While these proceedings were being had in tlie state courts the case of Sharon vs. Hill in the federal court was making slow progress. Miss HilFs attor- neys seemed to think that her salvation depended upon reaching a decision in her case before the deter- mination of Sharon's suit in the United States Circuit Court. They were yet to learn, as they afterwards did, that after a United States court takes jurisdiction in a case, it cannot be ousted of that jurisdiction by the decision of a state court, in a proceeding subse- quently commenced in the latter. Seldom has " the law's delay " been exemplified more thoroughly than it was by the obstacles which her attorneys were able to interpose at every step of the proceedings in the fed- eral court. Sharon commenced his suit in the United States Circuit Court October 3, 1883, twenty-eight days before his enemy commenced hers in the State Su- perior Court. By dilator}- pleas her counsel succeeded in delaying her answer to Sharon's suit until after the decision in her favor in the state court. She did not enter an appearance in the federal court until the very 26 last day allowed by the rule. A month later she filed a demurrer. Her counsel contrived to delay the argu- ment of this demurrer for seven weeks after it was tiled. It was finally argued and submitted on the 21st of January, 1884. On the 3d of March it was over- ruled and the defendant was ordered to answer in ten days, to wit, March 13th. Then the time for answering was extended to April 24th. When that day arrived her counsel, instead of filing an answer, filed a plea in abatement, denying the non-residence of Mr. Sharon in the State of California, on which depended his right to sue in the federal court. To this Mr. Sharon's counsel filed a replication on the 5th of May. It then devolved upon Miss Hill's counsel to produce evidence of the fact alleged in the plea, but, after a delay of five months and ten days, no evidence whatever was offered, and the court ordered the plea to be argued on the following day. It was overruled, and thirty days were given to file an answer to Sharon's suit. The case in the state court had then been tried, argued, and submitted thirty days before, but Miss Hill's counsel were not yet ready to file their answer within the thirty days given them, and the court extended the time for answer until December 30th. Six days before that day arrived Judge Sullivan rendered his decision. At last, on the 30th of December, 1884, fourteen montlis after the filing of Sharon's complaint, Sarah Althea's answer was filed in the federal court, in which, among other things, she set up the proceedings and decree of the state court, adjudging the alleged marriage contract to be genuine and legal, and the parties to be husband and wife, and three days later Sharon filed his replica- tion. There was at no time any delay or want of dili- gence on the part of the plaintiff in prosecuting this suit to final. judgment. On the contrary, as is plainly shown in the record above stated, the delays were all on the part of the defendant. The taking of the testi- mon}^ in the United States Circuit Court commenced on the r2th of February, 1885, and closed on the 12th of August following. The struggle in the state court was going on during all the time of the taking of the testimony in the federal court, and intensified the excitement attendant thereon. Miss Hill was in constant attendance before the examiner who took the testimony, often interrupt- ing the proceedings with her turbulent and violent con- duct and language, and threatening the lives of Mr, Sharon's counsel. She constantly carried a pistol, and on occasions exhibited it during the examination of witnesses, and, pointing it at first one and then another, expressed her intention of killing them at some stage of the proceedings. She was constantly in contempt of the court, and a terror to those around her. Her conduct on one occasion, in August, 1885, became so 28 violent that the takiup; of the testimony conld not pro- ceed, and Justice Field, the presiding judge of the cir- cuit, made an order that she should be disarmed, and that a bailiff of the court should sit constantly at her side to restrain her from any murderous outbreak, such as she was constantly threatening. Her principal attorney, Tyler, was also most violent and disorderly. Judge Terry, while less explosive, was always ready to excuse and defend his client. (See Report of Pro- ceedings in Sharon vs. Hill, 11 Sawyer's Circuit Court Reps., 122.) Upon the request of counsel for the complainant, the examiner in one case reported to the court the language and the conduct of Miss Hill. Among other things, he reported her as saying : " When T see this testimony [from which certain scan- dalous remarks of hers were omitted] I feel like taking that man Stewart* out and cowhiding him. I will shoot him yet ; that very man sitting there. To think that he would put up a woman to come here and delib- erately lie about me like that. I will shoot him. They know when I say I will do it that I will do it. I shall shoot him as sure as you live ; that man that is sitting right there. And I shall have that woman Mrs. Smith arrested for this, and make her prove it." And again : " I can hit a four-bit piece nine times out of ten." The examiner said that pending the examination of * Senator Stewart, who was one of the counsel against her in the suit. 29 one of the witnesses, on the o(!eiision mentioned, the respondent drew a pistol from her satchel, and held it in her right hand ; the hand resting- for a moment upon the table, with the weapon pointed in the direction of Judge Evans. He also stated that on previous occa- sions she had brought to the examiner's room during examinations a pistol, and had sat for some length of time holding it in her hand, to the knowledge of all persons present at the time. After the reading of the examiner's report in open court, Justice Field said : " In the case of William Sharon versus Sarah Altliea Hill, the Examiner in Chancery appointed by the court to take the testimon}^ has reported to the court that very disorderly proceedings took place before him on the 3d instant ; that at that day, in his room, when counsel of the parties and the defendant were present, and during the examination of a witness by the name of Piper, the defendant became very much excited, and threatened to take the life of one of the counsel, and that subse- quently she drew a pistol and declared her intention to carrj' her threat into effect. It appears also from the report of the examiner that on repeated occasions the defendant has attended before him, during the ex- amination of witnesses, armed with a pistol. Such con- duct is an offense against the laws of the United States punishable by tine and imprisonment. It interferes with the due order of proceedings in the administration of justice, and is well calculated to bring them into con- tempt. I, myself, have not heretofore sat in this case and do not expect to participate in its decision ; I intend in a few days to leave for the East, but I have been consulted by ray associate, and have been requested to take part in this side proceeding, for it is of the utmost 30 importauee for the due administration of justice that such misbehavior as the examiner reports should be stopped, and measures be taken which will prevent its recur- rence. My associate will comment on the laws of Con- gress which make the offense a misdemeanor, punishable by line and imprisonment. " The marshal of the court will be directed to disarm the defendant whenever she goes before tiie examiner or into court in any future proceeding, and to appoint an officer to keep strict surveillance over her, in order that she may not carry out her threatened purpose. This order will be entered. The Justice then said that it is to be observed that this block, embracing this building — the court-house — is under the exclusive juris- diction of tlie United States. Every offense committed within it is an offense against the United States, and the State has no jurisdiction whatever. This fact seems to have been forgotten by the parties." The following is the order then entered as directed by Justice Field : " Whereas it appears from the report to this court of the Examiner in Chancery in this case appointed to take the depositions of witnesses, that on the 3d day of August, instant, at his office, counsel of the parties appeared, namely, William M. Stewart, Esquire, and Oliver P. Evans, Esquire, for the complainant, and W. B. Tyler, Esquire, for the defendant, and the defendant in person, and that during the examination before said examiner of a witness named Piper, the defendant be- came excited and threatened the life of the counsel of the complainant present, and exhibited a pistol with a declared intention to carrj such threat into effect, thereby obstructing the order of the proceedings, and endeavoring to bring the same into contempt ; and 31 " Wliereas it further appears tliat said defendant habitually attends before said examiner carrying a pis- tol, " It is ordered, That the marshal of this court take such measures as may be necessary to disarm the said defendant, and keep her disarmed, and under strict sur- veillance, while she is attending the examination of wit- nesses before said examiner, and whenever attending in court, and that a deputy be detailed for that purpose." CHAPTER V. DECISION OF THE CASE IN THE FEDERAL COURT. The taking of the testimony being completed, the cause was set for a hearing on September 9th. After an argument of thirteen days the cause was submitted on the 29th of September, 1885. On the 26th of December, 1885, the court rendered its decision, that the alleged declaration of marriage and the letters purporting to have been addressed " My Dear Wife " were false and forged, and that the contemporaneous conduct of the parties, and particularly of the defend- ant, was altogether incompatible with the claim of marriage or the existence of any such declaration or letters. A decree was ordered accordingly, and the court made the following further order : " As the case was argued and submitted during the lifetime of the complainant, who has since deceased, the decree will be entered nunc pro tunc, as of September 29, 1885, the date of its submission and a day prior to the decease of the complainant." The opinion of the court was delivered by Judge Deady, of the United States District Court of Oregon, who sat in the case with Judge Sawyer, the circuit judge. 83 Of the old negress under whose direction the fraud- ulent marriage contract had been manufactured, and under whose advice and direction the suit in the state court had been brought, the Judge said : " Mary E. Pleasant, better known as Mammie Pleas- ant, is a conspicuous and important figure in this affair ; without her it would probabl^y never have been brought before the public. She appears to be a shrewd old negress of some means. " In my judgment this case and the forgeries and perjuries committed in its support had their origin largely in the brain of this scheming, trafficking, crafty old woman." He found that the declaration of marriage was forged by the defendant by writing the declaration over a simulated signature, and that her claim to be the wife of the plaintiff was wholly false, and had been put forth by her and her co-conspirators for no other purpose than to despoil the plaintiff of his property. Judge Sawj^er also filed an opinion in the case, in which he declared that the weight of the evidence sat- isfactorily established the forgery and the fraudulent character of the instrument in question. CHAPTER VI. THE MAEKIAGE OF TERRY AND MISS HILL. Sarah Althea now received a powerful recruit, who enhsted for the war. This was one of her lawyers, David S. Terr}^ whom she married on the 7th day of January, 1886, twelve days after the decision of the Circuit Court against her, and which he had heard announced, but before a decree had been entered in conformity with the decision. Terry seemed willing to take the chances that the decree of the Superior Court would not be reversed in the Supreme Court of the State. The decision of the federal court he affected to utterly disregard. It was estimated that not less than $5,000,000 would be Sarah Althea's share of Sharon's estate, in the event of success in her suit. She would be a rich widow if it could be established that she had ever been a wife. She had quarreled with Tyler, her principal attorney, long before, and accused him of failing in his professional duty. If she could escape from the obligations of her contract with him, she would not be compelled to divide with him the hoped- for $5,000,000. Although Judge Terry had been Chief Justice of the Supreme Coui't of California, the crimes of perjury and :^5 forgery and suboruatiou of perjury which had been londly charged in Judge Sullivan's opinion against the woman, in whose favor he gave judgment, seemed to him but trifles. Strangely enough, neither he nor Sarah Althea ever uttered a word of resentment against him on account of these charges. The marriage of Terry with this desperate woman in the face of an adverse decision of the Circuit Court, by which jurisdiction was first exercised upon the sub- ject-matter, was notice to all concerned that, by all the methods known to him, he Avould endeavor to win her cause, which he thus made his own. He took the position that any denial of Sarah Althea's pretense to have been the wife of Sharon Avas an insult to her, which could only be atoned by the blood of the person who made it. This was the proclamation of a vendetta against all who should attempt to defend the heirs of Mr. Sharon in the possession of that half of their inheritance which he and Sarah Althea had marked for their own. His subsequent course showed that he relied upon the power of intimidation to secure suc- cess. He was a man of powerful frame, accustomed all his life to the use of weapons, and known to be alwa}'S armed with a knife. He had the reputation of being a fighting man. He had decided that Sarah Althea had been the lawful wife of Sharon, and that therefore he had married a virtuous widow. He had 36 not often been crossed in his purpose or been resisted when he had once taken a position. By his marriage he virtually served notice on the judges of the Supreme Court of the State, before whom the appeal was then pending, that he would not tamely submit to be by them proclaimed to be the dupe of the discarded woman of another. It was well understood that he intended to hold them personal]}' responsible to him for any decision that would have that effect. These intentions were said to have been made known to them. His rule in life, as once stated by himself, was to compel acquiescence in his will by threats of violence, and known readiness to carry his threats into effect. This, he said, would in most cases insure the desired result. He counted on men's reluctance to engage in personal difficulties with him. He believed in the persuasiveness of ruffianism. Whether he thought his marriage would frighten Judges Sawyer and Deady, who had just rendered their decision in the United States Circuit Court, and cause them either to modify the terms of the decree not yet entered, or deter them from its enforcement, is a matter of uncertainty. He was of the ultra State's- rights school and had great faith in the power of the courts of a State when arrayed against those of the United States. He had always denied the jurisdiction of the latter in tlie case of Sarah Althea, both as to 37 the subject-matter aud as to the parties. He refused to see any difference between a suit for a divorce and ;i suit to cancel a forged paper, \slnch, if allowed to pa^s as genuine, would entitle its holder to another's property. He persisted in denying that Sharon had been a citizen of Nevada during his lifetime, and ignored the determination of this question by the Cir- cuit Court. But if Judge Terry had counted on the fears of the United States judges of California he had reckoned too boldly, for on the 15th of January, 1886, eight days after his marriage, the decree of the Circuit Court was formally entered. This decree adjudged the alleged marriage contract of August 25, 1880, false, counterfeited, fabricated, and fraudulent, and ordered that it be surrendered to be cancelled and an- nulled, and be kept in the custody of the clerk, subject to the further order of the court ; and Sarah Althea Hill and her representatives were perpetually enjoined from alleging the genuineness or the validity of the instrument, or making use of it in any way to support her claims as wife of the complainant. The execution of this decree would, of course, put an end to Sarah Althea's claim, the hope of maintain- ing which was supposed to have been the motive of the marriage. To defeat its execution then became the sole object of Terry's life. This he hoped to do 88 by autagoiiiziiig- it with a favorable decision of the Supreme Court of the State, on the appeals pending therein. It has heretofore been stated that tlie cnse against Sharon in the Superior Court was removed from the calendar on the 14th day of November, 1885, because of the defendant's death on the previous day. The lltli of February following, upon proper apyjlica- tion, the court ordered the substitution of Frederick W. Sharon as executor and sole defendant in the siiit in the place of William Sharon, deceased. The motion for a new trial was argued on the 28th of the following Ma}-, and held under advisement until the 4th of the following October, when it was denied. From this order of denial an ap]3eal was taken by the defendant. It must be borne in mind that there were now two appeals in this case to the Supreme Court of the State from the Superior Court. One taken on the 25th of February, 1885, from the judgment of Judge Sullivan, and from his order for alimony and fees, and the other an appeal taken October 4, 1886, from the order deny- ing the new trial in the cause. On the 31st of January, 1888, the Supreme Court rendered its decision, affirming the judgment of the Superior Court in favor of Sarah Althea, but reversing the order made by Judge Sullivan granting counsel fees, and reducing the allowance for alimony from S2,500 per month to $500. Four judges concurred in 39 this decision, namely, McKiustry, Searles, Patterson^ and Temple. Three judges dissented, to wit, Thorn- ton, Sharpstein, and McFarland. There then remained pending in the same court the appeal from the order granting a new trial. It was reasonable that Terry should expect a favorable decis- ion on this appeal, as soon as it could be reached. This accomplished, he and Sarah Althea thought to enter upon the enjoyment of the great prize for which they had contended with such desperate energy. Terry iiad always regarded the decree of the Circuit Court as a mere harmless expression of opinion, which there would be no attempt to enforce, and which the state courts would wholly ignore. Whatever force it might finally be given by the Supreme Court of the United States appeared to him a question far in the future, for he supposed he had taken an appeal from the decree. This attempted appeal was found to be without effect, because when ordered the suit had abated by the death of the plaintiff, and no appeal could be taken until the case was revived by order of the court. This order was never applied for. The two years within which an appeal could have been taken expired January 15, 1888. The decree of the Circuit Court had therefore become final at that time. CHAPTER YII. THE BILL OF REVIVOR. It was at this stage of the prolonged legal contro- versy that Justice Field first sat in the case. The executor of the Sharon estate, on the 12th of March, 1888, tiled a bill of revivor in the United States Circuit Court. This was a suit to revive the case of Sharon vs. Hill, that its decree might stand in the same condi- tion and plight in which it was at the time of its entry, which, being )iu7ic pro tunc, was of the same effect as if the entry had preceded the death of Mr. Sharon, the case having been argued and submitted during his life- time. The decree directed the surrender and cancella- tion of the forged marriage certificate, and perpetually enjoined Sarah Althea Hill, and her representatives, from alleging the genuineness or validity of that instru- ment, or making any use of the same in evidence, or otherwise to support any rights claimed under it. The necessity for this suit was the fact that the forged paper had not been surrendered for cancella- tion, as ordered by the decree, and the plaintiff feared that the defendant would claim and seek to enforce l)roperty rights as wife of the plaintiff, by authority of the alleged written declaration of marriage, under the 41 decree of auotlier^ourt, esscutially I'ouuded thereupon, contrary to the perpetual injunction ordered by the Circuit Court. To this suit, David S. Terry, as hus- band of the defendant, was made a party. It merely asked the Circuit Court to place its own decree in a position to be executed, and thereby prevent the spoliation of the Sharon estate, under the authority of the decree of Judge Sullivan in the suit in the state court subsequently commenced. A demurrer was filed by the defendant. It was argued in July before Justice Field, Judge Sawyer, and District Judge Sabin. It was overruled on the 3d of September, when the court ordered that the original suit of Sharon against Hill, and the final decree therein, stand revived in the name of Frederick W. Sharon as executor, and that the said suit and the proceedings therein be in the same plight and condition they were in at the death of William Sharon, so as to give the executor, complainant as aforesaid, the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, at all times and in all places, and in all particulars. The opinion in the case was delivered by Justice Field. During its delivery he was interrupted by Mrs. Terry with violent and abusive language, and an attempt by her to take a pistol from a satchel which she held in her hand. Her removal from the court-room by order of Justice Field ; 42 her husband's assault upon the marshal with a deadly weapon for executing the order, and the imprisonment of both the Terrys for contempt of court, will be more particularly narrated hereafter. The commencement of the proceedings for the revival of the suit was well calculated to alarm the Terrys. They saw that the decree in the Circuit Court was to be relied upon for something more than its mere moral effect. Their feeling towards Judges Sawyer and Deady was one of most intense hatred. Judge Deady was at his home in Oregon, beyond the reach of phys- ical violence at their hands, but Judge Sawyer was in San' Francisco attending to his oiticial duties. Upon him they took an occasion to vent their wrath. It was on the 14th of August, 1888, after the com- mencement of the revivor proceedings, but before the decision. Judge Sawyer was returning in the railwa}^ train to San Francisco from Los Angeles, where he had been to hold court. Judge Terry and his wife took the same train at Fresno. Judge Sawyer occu- pied a seat near the center of the sleeping-car, and Judge and Mrs. Terry took the last section of the car, behind him, and on the same side. A few minutes after leaving Fresno, Mrs. Terry walked down the aisle to a point just beyond Judge Sawyer, and turning around with an ugly glare at him, hissed out, in a spiteful and contemptuous tone: " Are you here?" to 48 Avliicli the Judge quietly replied : " Yes, Madam," and bowed. She then resumed her seat. A few minutes after, Judge Terry walked down the aisle about the same distance, looked over into the end section at the front of the car, and hnding it vacant, went back, got a small hand-bag, and returned and seated himself in the front section, with his back to the engine and fac- ing Judge Sawyer. Mrs. Terr}- did not (at the moment) accompany him. A few minutes later she walked rap- idly down the passage, and as she passed Judge Saw- yer, seized hold of his hair at the back of his head, gave it a spiteful twitch and passed quickly on, before he could fully realize what had occurred. After pass- ing she turned a vicious glance upon him, which was continued for some time after taking her seat b}^ the side of her husband. A passenger heard Mrs. Terr}- say to her husband : " I will give him a taste of what he will get bye and bye.'' Judge Terry was heard to remark : " The best thing to do with him would be to take him down the bay and drown him." Upon the arrival of Judge Sawyer at San Francisco, he entered a street car, and was followed by the Terrys. Mrs. Terry took a third seat from him, and seeing him, said : " What, are you in this car too '? " When the Terrys left the car Mrs. Terry addressed some remark to Judge Sawyer in a spiteful tone, and repeated it. He said he did not quite catch it, but it was something 44 like this : "We will meet aoaiu. This is uot the end of it." Persons at all familiar with the tricks of those who seek human life, and still contrive to keep out of the clutches of the law, will see in the scene above recited an attempt to provoke an altercation which would have been fatal to Judge Sawyer, if he had resented the indignity put upon him by Mrs. Terry, by even so mnch as a word. This could easily have been made the pretext for an altercation between the two men, in which the result would not have been doubtful. There could have been no proof that Judge Terry knew of his wife's intention to insult and assault Judge Sawyer as she passed him, nor could it have been proven that he knew she had done so. A remonstrance from Saw- yer could easily have been construed by Terry, upon the statement of his wife, into an original, unprovoked, and aggressive affront. It is now, however, certain that the killing of Judge Sawyer was not at that time intended. It may have been, to use Mrs. Terry's words, " to give him a taste of what he would get bye and bye," if he should dare to render the decision in the revivor case adversely to them. This incident has been here introduced and dwelt upon for the purpose of showing the tactics resorted to by the Terrys during this litigation, and the methods by which they sought to control decisions. It is en- 45 tiroly probable tl)at tliey bad b(^pos of iiitiniidatiug' tb(; federal judges, as many believed some state judges bad been, and tbat tbus tbey niigbt " from tbe nettle dan- ger, pluck tbe flower safety." We liave seen tbat they reckoninl witbout tlieir host. We sliall now see to what extent tbeir rage carried tbem on tbe day tbat tbe decision \vas rendered reviv- ing tbe decree. CHAPTER VIII. THE TERRYS IMPRISONED FOR CONTEMPT. On the day after Judge Sawyer's return from Los Angeles he called the marshal to his chambers, and notified him of Mrs. Terry's violent conduct towards him on the train in the presence of her husband, so that he might take such steps as he thought proper to keep order when they came into the court-building, and see that there was no disturbance in the court- room. On the morning of September 3d, the marshal was again summoned to Judge Sawyer's room, where Judge Field was also present. They informed him that the decision in the revival suit would be rendered that clay, and they desired him to be present, with a suffi- cient number of bailiffs to keep order in court. They told him that judging from the action of the Terrys on the train, and the threats they were making so publicly, and which were being constantly published in the newspapers, it was not impossible that they might create a disturbance in the court-room. When the court opened that day, it found Terry and his wife already seated within the bar, and immediately in front of the judges. As it afterward appeared, they were both on a war-footing, he beino armed with a 47 concealed bowie-knife, and slie with a 41-calibve re- volver, which she carried in a small hand-bag, five of its chambers being loaded. The judges took their seats on the bench, and very shortly afterward Justice Field, who presided, began reading the opinion of the court in which both of his associates concurred. A printed pamphlet copy of this opinion contains 61 pages, of whicli 18 are taken up with a statement of the case. The opinion commences at page 19 and covers the remaining 42 pages of the pamphlet. From time to time, as the reading of the opinion progressed, Mrs. Terry, who was greatly excited, was observed to unclasp and clasp again the fastening of her satchel which contained her pistol, as if to be sure she could do so at any desired moment. At the lltli page of the opinion the following passage occurs : " The original decree is not self -executing in all its parts ; it may be questioned whether any steps could be taken for its enforcement, until it was revived, but if this were otherwise, the surrender of the alleged marriage contract for cancellation, as ordered, requires affirmative action on the part of the defendant. The relief granted is not complete until such surrender is made. When the decree pronounced the instrument a forgery, not only had the plaintiff the right that it should thus be put out of the way of being used in the future to his embarrassment and the embarrassment of his estate, but public justice required that it should be formally cancelled, that it might constantly bear on its face the evidence of its bad character, whenever or wherever presented or appealed to." 48 When Mrs. Terry heard the above words concerning the surrender of the alleged marriage contract for can- cellation, she first endeavored for a few seconds, but unsuccessfully, to open the satchel containing her pistol. For some reason the catch refused to yield. Then, rising to her feet, and placing the satchel before her on the table, she addressed the presiding justice, saying : "Are you going to make me give up my marriage contract ? " Justice Field said, " Be seated, madam." She repeated her question : "Are you going to take the responsibility of ordering me to deliver up that contract ? " She was again ordered to resume her seat. At this she commenced raving loudly and violently at the justice in coarse terms, using such phrases as these : " Mr. Justice Field, how much have you been bought for ? Everybody knows that you have been bought ; that this is a paid decision." -' " How big was the sack? " " How much have you been paid for the decision ? " "You have been bought by Newland's coin; every- body knows you were sent out here by the Newlands to make this decision." " Every one of you there have been paid for this decision." 49 At the commeuceiuent of this tirade, and after her refusal to desist Avhen twice ordered to do so, the pre- siding justice directed the marshal to remove lier from the court-room. She said defiantly : " I will not be removed from the court-room ; you dare not remove me from the court-room." Judge Terry made no sign of remonstrance with her, had not endeavored to restrain her, but had, on the contrary, been seen to nod approvingly to her, as if assenting to something she had said to him just before she sprang to her feet. The instant, however, the court directed her removal from the room, of which she had thus taken temporary possession, to the total sus- pension of the court proceedings, his soul was " in arms and eager for the fray." As the marshal moved toward the offending woman, he rose from his seat, under great excitement, exclaiming, among other things, " No living man shall touch my wife ! " or words of that import, and dealt the marshal a violent blow in the face," breaking one of his front teeth. He then unbut- toned his coat and thrust his hand under his vest, where his bowie-knife was kept, apparently for the purpose of drawing it, when he was seized by persons present, his hands held from drawing his weapon, and he himself forced down on his back. The marshal. "^ One of the wituesses stated that Terry also, said, " Get a written order from the eourt." 50 with the assistance of a deputy, then removed Mrs. Terry from the court-room, she struggling, screaming, kicking, striking, and scratching them as she went, and pouring out imprecations upon Judges Field and Saw- yer, denouncing them as " corrupt scoundrels," and declaring she would kill them both. She was taken from the room into the main corridor, thence into the marshal's business office, and then into an inner room of his office. She did not cease struggling when she reached that room, but continued her frantic abuse. While Mrs. Terry was being removed from the court- room Terry was held down by several strong men. He was thus, by force alone, prevented from drawing his knife on the marshal. While thus held he gave vent to coarse and denunciatory language against the offi- cers. When Mrs. Terry was removed from the court- room he was allowed to rise. He at once made a swift rush for the door leading to the corridor on which was the marshal's office. As he was about leaving the room or immediately after stepping out of it, he suc- ceeded in drawing his knife. As he crossed the thresh- old he brandished the knife above his head, saying, "I am going to my wife." There was a territied cry from the bystanders : " He has got a knife." His arms were then seized by a deputy marshal and others present, to prevent him from using it, and a desperate striiggle ensued. Four persons held on to the arms and body 51 of Terry, and one presented a pistol to his head, threatening at the same time to shoot him if lie did not oivo up the knife. To these threats Terry paid no attention, but held on to the knife, actually passing it during the struggle from one hand to the other. David Neagle then seized the handle of the knife and com- menced drawing it through Terry's hand, when Terry relinquished it. The whole scene was one of the wildest alarm and confusion. To use the language of one of the witnesses, " Terry's conduct throughout this affair was most violent. He acted like a demon, and all the time while in the corridor he used loud and violent language, which could be plainly heard in the court-room, and, in fact, throughout the building," applying to the officers vile epithets, and threatening to cut their hearts out if they did not let him go to his wife. The knife which Terry drew, and which he afterwards designated as " a small sheath knife," was, including the handle, nine and a quarter inches long, the blade being five inches, having a sharp point, and is commonly called a bowie-knife. He himself afterwards represented that he drew this knife, not " because he wanted to hurt anybody, but because he wanted to force his way into the marshal's office." The presiding justice had read only a small portion of the opinion of the court when he was interrupted by 52 the boisterous and violent proceedings described. On their conclusion, by the arrest of the Terrys, he pro- ceeded with the reading of the opinion, which occupied nearly a whole hour. The justices, without adjourning the court, then retired to the adjoining chambers of the presiding justice for deliberation. They there con- sidered of the action which should be taken against the Terrys for their disorderly and contemptuous conduct. After determining what that should be they returned to the court-room and announced it. For their conduct and resistance to the execution of the order of the court both were adjudged guilty of contempt and ordered, as a punishment, to be imprisoned in the county jail, Terry for six months and his wife for thirty days. When Terr}" heard of the order, and the commitment was read to him, he said, " Judge Field " (applying to him a coarse and vituperative epithet) " thinks when I get out, when I get released from jail, that he will be in Washington, but I will meet him when he comes back next year, and it will not be a very pleasant meet- ing for him." Mrs. Terry said that she would kill both Judges Field and Sawyer, and repeated the threat several times. While the prisoners were being taken to jail, Mrs. Terry said to her husband, referring to Judge Sawyer : " I wooled him good on the train coming from Los Angeles. He has never told that." To which he re- plied : " He will not tell that ; that was too good." 53 She said she could have shot Judge Field and killed him from where she stood in the court-room, but that she was not ready then to kill the old villain ; she wanted him to live longer. While crossing the ferry to Oakland she said, " I could have killed Judges Field and SaAvyer ; I could shoot either one of them, and you would not find a judge or a jury in the State would convict me." She repeated this, and Terry answered, saying: "No, you could not find a jury that would convict any one for killing the old villain," referring to Judge Field. The jailer at Alameda testified that one day Mrs. Terry showed him the sheath of her husband's knife, saying : " That is the sheath of that big bowie-knife that the Judge drew. Don't you think it is a large knife ? " Judge Terry was present, and laughed and said : " Yes ; I always carry that," meaning the knife. To J. H. O'Brien, a Avell-known citizen, Judge Terry said that " after he got out of jail he would horsewhip Judge Field. He said he did not think he would ever return to California, but this earth was not large enough to keep him from finding Judge Field, and horsewhi]>ping him," and said, " if he resents it I will kill him." To a newspaper writer, Thomas T. Williams, he said : " Judge Field would not dare to come out to the Pacific Coast, and he would have a settlement with him if he did come." 54 J. M. Shannon, a friend of Terry's for thirty years, testified that while the Terrys were in jail he called there with Mr. Wi^ginton, formerly a member of Con- gress from California ; that during the call Mrs. Terry said something to her husband to the effect that they could not do anything at all in regard to it. He said : " Yes, we can." 8he asked what they could do. He said : " I can kill old Sawyer, damn him. I will kill old Sawyer, and then the President will haye to ap- point some one in his place." In saying this " he brought his tist down hard and seemed to be mad." Ex-Congressman Wigginton also testified concerning this visit to Terry. It occurred soon after the commit- ment. He went to arrange about some case in which he and Terry were counsel on opposite sides. He told Terry of a rumor that there was some old grudge or difference between him and Judge Field. Terry said there was none he knew of. He said : " ' When Judge Field's name was mentioned as Can- didate for President of the United States,' — I think he said, — ' when I was a delegate to the conyention, it being supposed that I had certain influence with a certain political element, that also had delegates in the conyention, some friend or friends' — I will not be sure whether it was friend or friends — ' of Judge Field came to me and asked for my influence with these delegates to secure the nomination for Judge Field. My answer ' — I am now stating the language as near as I can of Judge Terrj^'s — ' my answer* was, ' no, I have no in- fluence with that element.' I understood it to be the 55 workingmen's delegates. I could not control these delegates, and if I could wonld not control them for Field.' He said : 'That may have caused some alien- ation, but I do not know that Field knew that.' " Mr. Wigginton said that Mrs. Terry asked her hus- band what he could do, and he replied, showing more feeling than he had before : " Do ? I can kill old Sawyer, and by God, if necessary, I will, and the President will then have to appoint some one else in his place." CHAPTER IX. terky's petition 'j^o the circuit court for a release its refusal — he appeals to the supreme court — unanimous decision against him there — president cleveland refuses to pardon him — falsehoods REFUTED. Ou the 12tli of September Terry petitioned the Cir- cuit Court for a revocation of the order of imprisou- roent in his case, and in support thereof made the following statement under oath : " That when petitioner's wife, the said Sarah A. Terry, first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet, and he did nothing to encourage her in her acts of indiscre- tion ; when this court made the order that petitioner's wife be removed from the court-room your petitioner arose from his seat witli the intention and purpose of himself removing her from the court-room quietly and peaceably, and that he had no intention or design of obstructing or preventing the execution of said order of the court ; that he never struck or offered to strike the United States marshal until the said marshal had assaulted himself, and had in his presence violently, and as he believed unnecessarily, assaulted the peti- tioner's wife. " Your petitioner most solemnly swears that he neither drew nor attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not 57 assault or attempt to assault the U. S. marshal with an}' deadly weapon in said court-room or elsewhere. And in this connection he respectfully represents that after he left said court-room he heard loud talking in one of the rooms of the U. S. marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the United States marshal ; the door of the room was blocked by such a crowd of men that the door could not be closed ; that your petitioner then, for the first time, drew from in- side his vest a small sheath-knife, at the same time saying to those standing in his way in said door, that he did not want to hurt any one ; that all he wanted was to get into the room where his wife was. The ci'owd then parted and your petitioner entered the doorway, and there saw a United States deputy mar- shal with a revolver in his hand pointed to the ceiling of the room. Some one then said : ' Let him in if he will give up his knife,' and your petitioner immediately released hold of the knife to some one standing by. " In none of these transactions did your petitioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof. " That he lost his temper, he respectfully submits was a natural consequence of himself being assaulted when he was making an honest eflbrt to peaceably and quietly enforce the order of the court, so as avoid a scandalous scene, and of his seeing his wife so unnecessarily assaulted in his presence." It will be observed that Terry, in his petition, con- tradicts the facts recited in the orders for the commit- ment of himself and his wife. These orders were made by Justice Field. Circuit Judge Sawyer, and District Judge Sabin from the district of Nevada, who did not 58 depend iipou the testimony of otliers for information as to the facts in the case, but were, themselves, eye- witnesses and spoke from personal observation and absolute knowledge. In passing upon Terrj^'s petition, these judges, speaking through Justice Field, who delivered the opinion of the court, bore testimony to a more partic- ular account of the conduct of Terry and his wife than had been given in the order for the commitment. As the scene has already been described at length, this portion of the opinion of the court would be a mere repetition, and is therefore omitted. After reciting the facts, Justice Field referred to the gravity of Terry's offense in the following terms : " The misbehavior of the defendant, David S. Terry, in the presence of the court, in the court-room, and in the corridor, which was near thereto, and in one of which (and it matters not which) he drew his bowie- knife, and brandished it with threats against the deputy of the marshal and others aiding him, is sufficient of itself to justify the punishment imposed. But, great as this offense was, the forcible resistance offered to the marshal in his attempt to execute the order of the court, and beating him, was a far greater and more serious affair. The resistance and beating was the highest possible indignity to the Government. When the flag of the country is tired upon and insulted, it is not the injury to the bunting, the linen, or silk on which the stars and stripes are stamped which startles and arouses the country. It is the indignity and insult to the emblem of the nation's majesty which stirs every 59 heart, and makes every patriot eager to resent tbem. 80, the forcible resistance to an officer of the United States in the execution of the process, orders, and judg- ments of their courts is in like manner an indignity and insult to the power and authority of the Government which can neither be overlooked nor extenuated." After reviewing Terry's statement, Justice Field said : " We have read this petition with great surprise at its omissions and misstatements. As to what occurred under our immediate observation, its statements do not accord with the facts as we saw them ; as to what occurred at the further end of the room and in the cor- ridor, its statements are directly opposed to the con- curring accounts of the officers of the court and parties present, whose position was such as to preclude error in their observations. According to the sworn state- ment of the marshal, which accords with our own observations, so far from having struck or assaulted Terry, he had not even laid his hands upon him when the violent blow in the face was received. And it is clearly beyond controversy that Terry never voluntarily surrendered his bowie-knife, and that it was wrenched from him only after a violent struggle. " We can only account for his misstatement of facts as they were seen by several witnesses, by supposing that he was in such a rage at the time that he lost com- mand of himself, and does not well remember what he then did, or what he then said. Some judgment as to the weight this statement should receive, independently of the incontrovertible facts at variance with it, may be formed from his speaking of the deadly bowie-knife he drew as ' a small sheath-knife,' and of the shameless language and conduct of his wife as ' her acts of indis- cretion.' " No one can believe that he thrust his hand under 60 his vest where his bowie-knife was carried without in- tending to draw it. To beheve that he placed his right hand there for any other purpose — such as to rest it after tlie violent fatigue of the blow in the marshal's face or to smooth down his ruffled linen — would be childish credulity. " But eveu his own statement admits the assaulting of the marshal, who was endeavoring to enforce the order of the court, and his subsequently drawing a knife to force his way into the room where the marshal had removed his wife. Yet he offers no apology for his conduct ; expresses no regret for what he did, and makes no reference to his violent and vituperative lan- guage against the judges and officers of the court, while under arrest, which is detailed in the affidavits tiled." In refusing to grant the petition the court said : " There is nothing in his petition which would justify any remission of the imprisonment. The law imputes an attempt to accomplish the natural result of one's acts, and when these acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor. No one would be safe if the denial of a wrongful or criminal act would suffice to release the violator of the law from the punishment due his offenses." On September 17, 1888, after the announcement of the opinion of the court by Mr. Justice Field denying the petition of D. S. Terry for a revocation of the order committing hi in for contempt, Mr. Terry made public a correspondence between himself and Judge Solomon Heydenfeldt, which explains itself, and is as follows : 61 "Mv Dear TEituY: " The papers which oar friend Stanley sends you will explain what we are trying to do. I wish to see Field to-morrow and sound his disposition, and if it seems advisable I will present our ])etition. But in order to he effective, and perhaps successful, I wish to feel as- sured and be able to give the assurance that failure to agree will not be followed by any attempt on your part to break the peace either by action or demonstration. I know that you would never compromise me in any such manner, but it will give me the power to make an emphatic assertion to that effect and that ought to help. " Please answer promptly. ""8. HEYDENFELDT." The reply of Judge Terry is as follows : " Dear Heydenfeldt : " Your letter was handed me last evening. I do not expect a favorable result from any application to the Circuit Court, and I have very reluctantly consented that an application be made to Judge Field, who will probably wish to pay me for my refusal to aid his presidential aspirations four years ago. I had a con- versation with Garber on Saturday last in which I told him if I was released I would seek no personal satis- faction for what had passed. You may say as emphat- ically as you wish that I do not contemplate breaking the peace, and that, so far from seeking, I will avoid meeting any of the parties concerned. I will not prom- ise that I will refrain from denouncing the decision or its authors. I believe that the decision was purchased and paid for with coin from the Sharon estate, and I Avould stay here for ten years before I would say that I did not so beheve. If the judges of the Circuit Court would do what is right they would revoke the order imprisoning my wife. She certainly was in contempt 62 of court, but that great provocation was given by going outside the record to smirch her character ought to be taken into consideration in mitigation of the sentence. Field, when a legislator, thought that no court should be allowed to punish for contempt by imprisonment for a longer period than live days. My Avife has already been in prison double that time for words spoken un- der very great provocation. No matter what the result, I propose to stay here until my wife is dismissed. "Yours truly, "D. S. TEKRY." In the opinion of the court, referred to in the fore- going letter as " smirching the character " of Mrs. Terry, there was nothing said reflecting upon her, ex- cept what was contained in quotations from the opinion of Judge Sullivan of the State court in the divorce case of Sharon vs. Hill in her favor. These quotations commenced at page 58 of the pamphlet copy of Justice Field's opinion, when less than three pages remained to be read. It was at page 29 of the pamphlet that Justice Field was reading when Mrs. Terry interrupted him and was removed from the court-room. After her removal he resumed the reading of the opinion, and only after reading 29 pages, occupying nearly an hour, did he reach the quotations in which Judge Sullivan expressed his own opinion that Mrs. Terry had com- mitted perjury several times in his court. The reading of them could not possibh^ have furnished her any provocation for her conduct. She had then been re- 63 movod h'om tlio coni't-rooiii more than an hour. lie- sides, it' they " smirched " her character, why did she submit to them com])hicently when tliey were originally uttered from the bench by Judge Sullivan in his opin- ion rendered in her favor? Justice Field, in what he was reading that so in- censed Mrs. Terry, was simply stating the efi'ect of a decree previously rendered in a case, in the trial of which he had taken no part. He was stating the law as to the rights established by that decree. The efforts then made by Terry, and subsequently by his friends aud counsel, to make it appear that his assault upon the marshal and defiance of the court were caused by his righteous indignation at assaults made by Judge Field upon his wife's character were puerile, because based on a falsehood. The best proof of this is the opinion itself. Judge Terry next applied to the Supreme Court of the United States for a writ of habeas corpus. In that application he declared that on the 12th day of Sep- tember, 1888, he addressed to the Circuit Court a petition duly verified by his oath, and then stated the petition for release above quoted. Yet in a communi- cation published iu the S^ni Francisco Exmniuer of October 22d he solemnly declared that this very peti- tion was not tiled by any one on his behalf. After full 64 argument by the Supreme Court the writ was denied, November 12, 1888, by an unanimous court, Justice Field, of course, not sitting in the case. Justice Har- lan delivered the opinion of the Court. CHAPTER X. PRESIDENT CLEVELAND REFUSES TO PARDON TERRY — FALSE STATEMENTS OF TERRY REFUTED. Before the petition for habeas corpus was presented to the Supreme Court of the United States, Judge Terry's friends made a strenuous effort to secure his pardon from President Cleveland. The President de- clined to interfere. In his efforts in that direction Judge Terry made gross misrepresentations as to Judge Field's relations with himself, which were fully refuted by Judge Heydenfelt, the very witness he had invoked. Judge Heydenfelt had been an associate of Judge Terry on the State supreme bench. These rep- resentations and their refutation are here given as a necessary element in this narrative. Five days after he had been imprisoned, to wit, Sep- tember 8, Terry wrote a letter to his friend Zachariah Montgomery at Washington, then Assistant Attorney- General for the Interior Department under the Cleve- land Administration, in which he asked his aid to ob- tain a pardon from the President. Knowing that it would be useless to ask this upon the record of his conduct as shown by the order for his commitment, he resorted to the desperate expedient of endeavoring to 66 overcome that record by pnttiug his own oath to a false statement of the facts, against the statement of the three judges, made on their own knowledge, as eye-witnesses, and supported by the afl&davits of court oflBcers, lawyers, and spectators. To Montgomery he wrote : " I have made a plain statement of the facts which occurred in the court, and upon that propose to ask the intervention of the President, and I request you to see the President ; tell him all you know of me, and what degree of credit should be given to a statement by me upon my own knowledge of the facts. AVhen you read the statement I have made you will be satis- fied that the statement in the order of the court is false." He then proceeded to tell his story as he told it in his petition to the Circuit Court. His false representa- tions as to the assault he made upon the marshal, and as to his alleged provocation therefor, were puerile in the extreme. He stood alone in his declaration that the marshal first assaulted him, while the three judges and a dozen witnesses declared the very opposite. His denial that he had assaulted the marshal with a deadly weapon was contradicted by the judges and others, who said that they saw him attempt to draw a knife in the court-room, which attempt, followed up as it was continually until successful, constituted an assault with that weapon. To call his bowie-knife " a small sheath- 67 knife," and the outrageous conduct of his wife " acts of indiscretion;" to pretend that he lost his temper because he was assaulted " while making an honest effort to peaceably and quietly enforce the order of the court," and finally to pretend that his wife had been " unnecessarily assaulted " in his presence, was all not only false, but simply absurd and ridiculous. He said : " I don't want to stay ija prison six months for an offense of which I am not guilty. There is no way left except to appeal to the President. The record of a court imports absolute veritj^ so I am not allowed to show that the record of the Circuit Court is abso- lutely false. If you can help me in this matter you will confer on me the greatest possible favor." He told Montgomery that it had been suggested to him that one reason for Field's conduct was his refusal to support the latter's aspirations for the Presidency. In this connection he made the following statement : " In March, 1884, I received a note from my friend Judge Heydenfeldt, saying that he wished to see me on important business, and asking me to call at his office. I did so, and he informed me that he had received a letter from Judge Field, who was confident that if he could get the vote of California in the Democratic National Convention, which would assemble that year, he would be nominated for President and would be elected as, with the influence of his family and their connection, that he would certainly carry New York ; that Judge Field further said that a Congressman from California and otlier of his friends had said that if I 68 would aid hiui, I could give him the California delega- tion ; that he understood I wanted official recognition as, because of my duel years ago, I was under a cloud ; that if I would aid him, I should have anything I de- sired." It will be observed that he here positively states that Judge Heydenfeldt told him he had received a let- ter from Judge Field, asking Terry's aid and promising, for it, a reward. Judge Heydenfeldt, in a letter dated August 21, 1889, to the Sa?i F'/'a/ncisco Examiner, branded Terry's assertion as false. The letter to the Examiner is as follows : " The statement made in to-day's Examiner \\\ refer- ence to the alleged letter from Justice Field to me, derived, as is stated by Mr. Ashe, from a conversation with Judge Terry, is utterly devoid of truth. " I had at one time, many years ago, a letter from Justice Field, in which he stated that he was going to devote his leisure to preparing for circulation among his friends his reminiscences, and, referring to those of earl}' California times, he requested me to obtain from Judge Terry his, Terry's, version of the Terry-Brod- erick duel, in order that his account of it might be accurate. As soon as I received this letter, I wrote to Judge Terry, informing him of Judge Field's wishes, and recommending him to comply, as coming, as the account would, from friendly hands, it would put him correct upon the record, and would be in a form which would endure as long as necessary for his reputation on that subject. "I received no answer from Judge Terry, but meet- ing him, some weeks after, on the street in this city, he 69 excused himself, saying that ho had been very busy, and achling that it was unnecessary for him to furnish a version of the duel, as the pubHshed and accepted version was correct. " The letter to me from -Justice Field above referred to is the only letter from Justice Field to me in which Judge Terry's name was ever mentioned, and, with the exception of the above-mentioned street conversation, Judge Field was never the subject of conversation be- tween Judge Terry and myself, from the time I left the bench, on the 1st of January, 1857, up to the time of Terry's death. "As to the statement tliat during Terry's trouble with the Sharon case, I offered Terry the use of Field's letter, it results from what I have above stated — that it is a vile falsehood, whoever may be responsible for it. " I had no such letter, and consequently could have made no such offer. "San Francisco, August 21, 1889. "S. HEYDENFELDT." Judge Heydenfeldt subsequently addressed the fol- lowing letter to Judge Field : " San Francisco, August 31, 1889. " My Dear Judge : I received yours of yesterday with the extract from the Washington Post of the 22d inst., containing a copy of a letter from the late Judge Terry to the Hon. Zack Montgomery. " The statement in that letter of a conversation be- tween Terry and myself in reference to you is untrue. The only conversation Terry and I ever had in relation to you was, as heretofore stated, in regard to a request from you to me to get from Terry his version of the Terry-Broderick duel, to be used in your intended reminiscences. 70 "I do not see how Terry could have made such au erroneous statement, unless, possibly, he deemed that application as an advance made by you towards ob- taining his political friendship, and upon that built up a theory, which he moulded into the fancy written by him in the Montgomery letter. " In all of our correspondence, kept up from time to time since your first removal to Washington down to the present, no letter of yours contained a request to obtain the political support of any one, " I remain, dear Judge, very truly yours, " S. HEYDENFELDT. " Hon. Stephen J. Field, " Palace Hotel, San Francisco." At the hearing of the Neagle case, Justice Field was asked if he had been informed of any statements made by Judge Terry of ill feeling existing between them be- fore the latter's imprisonment for contempt. He replied : " Yes, sir. Since that time I have seen a letter pur- porting to come from Terry to Zack Montgomery, pub- lished in Washington, in which he ascribed my action to personal hostility, because he had not supported me in some political aspiration. There is not one particle of truth in that statement. It is a pure invention. In support of his statement he referred to a letter received or an interview had with Judge Heydenfeldt. There is not the slightest foundation for it, and I cannot understand it, except that the man seems to me to have been all changed in the last few years, and he did not hesitate to assert that the official actions of others were governed by improper considerations. I saw charges made by him against judges of the State courts ; that 71 they liad been corrupt in their decisions ac^ainst him ; that they had been bought. Tluit was the common assertion made by him when decisions were rendered against him/' He then referred to the above letters of Judge Hey- denfeldt, declaring Terry's assertion to be false. It should be borne in mind that Terry's letter to Montgomery was written September 8th. It directly contradicts what he had said to ex-Congressman Wig- ginton on the 5th or 6th of the same month. To that gentleman he declared that he knew of no " old grudge or little difference " between himself and Judge Field. He said he had declined to support the latter for the Presidency, and added : "That may have caused some alienation, but I do not know that Judge Field knew that." In his insane rage Terry did not realize how absurd it was to expect people to believe that Judge Sawyer and Judge Sabin, both Kepublicans, had par- ticipated in putting him in jail, to punish him for not having supported Justice Field for the Presidency in a National Democratic Convention years before. Perhaps Terry thought his reference to the fact that Judge Field's name had been previously used in Demo- cratic Conventions, in connection with the Presidency, might have some effect upon President Cleveland's mind. 72 This letter was not forwarded to Zachariali Mont- gomery until a week after it was written. He then stated in a postscript that he had dehiyed sending it upon the advice of his attorney's pending the applica- tion to the Circuit Court for his release. Again he charged that the judges had made a false record against him, and that evidence would be presented to the President to show it. Terry and his friends brought all the pressure to bear that they could command, but the President refused his petition for a pardon, and, as already shown, the Supreme Court unanimously decided that his imprisonment for contempt had been lawfully ordered. He was therefore obliged to serve out his time. Mrs. Terry served her thirty days in jail, and was released on the 3d of October. There is a federal statute that provides for the re- duction of a term of imprisonment of criminals for good behavior. Judge Terry sought to have this statute applied in his case, but without success. The Circuit Court held that the law relates to state peni- tentiaries, and not to jails, and that the system of credits could not be applied to prisoners in jail. Be- sides this, the cretlits in any case are counted by the year, and not by days or months. The law specifies that prisoners in state prisons are entitled to so many 73 months' time for the first year, and so many for each subsequent year. As Terry's sentence ran for six months, the court saiJ tlie Liw could not apply. He consequently remained in jail until the 3d of March, 1889. CHAPTER XI. terky's continued threats to kill justice field return of the latter to california in 1889. Justice Field left California for AVashington in Sep- tember, 1888, a few clays after the denial of Terry's petition to the Circuit Court for a release. The threats against his life and that of Judge Sawyer so boldly made by the Terrys were as well known as the newspaper press could make them. In addition to this source of information, reports came from many other directions, telling of the rage of the Terrys and their murderous intentious. From October, 1888, till his departure for California, in June following, 1889, his mail almost every day contained reports of what they were saying, and the warnings and entreaties of his friends against his return to that State. These threats came to the knowledge of the Attorney- General of the United States, who gave directions to the marshal of the northern district of California to see to it that Jus- tice Field and Judge Sawyer should be protected from personal violence at the hands of these parties. Justice Field made but one answer to all who ad- vised against his going to hold court in California in 1889, and that was,. "I caunot and will not allow threats of persoiiiil violence to deter me from the ref,ni- lar performance of my judicial duties at the times and places fixed by law. As a judge of the highest court of the country, I should be ashamed to look any man in the face if I allowed a ruffian, by threats against my person, to keep me from holding the regular courts in my circuit." Terry's murderous intentions became a matter of public notoriety, and members of Congress and Sena- tors from the Pacific Coast, in interviews with the At- torney-General, confirmed the information derived by him from other sources of the peril to which the United States judges in California Avere subjected. He, in consequence, addressed the following letter on the sub- ject to Marshal Franks : " Department of Justice, " Washington, April 27, 1889. " John C. Franks, " United States Marshal, San Francisco, Cal. " Sir : The proceedings which have heretofore been had in the case of Mr. and Mrs. Terry in your United States Circuit Court have become matter of public no- toriety, and I deem it my duty to call your attention to the propriety of exercising unusual precaution, in case further proceedings shall be had in that case, for the protection of His Honor Justice Field, or whoever may be called upon to hear and determine the matter. Of course,! do not know what may be the feelings or pur- pose of Mr. and Mrs. Terry in the premises, but many things which have happened indicate that violence on 76 their part is not impossible. It is due to the dignity and independence of the court and the character of its judges that no effort on the part of the, Government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their high duties. " You will understand, of course, that this letter is not for the public, but to put you upon your guard. It will be proper for you to show it to the District At- torney if deemed best. " Yours truly, "W. H. H. MILLER, " Attorney - General r A month later the Attorney-General authorized the employment of special deputies for the purpose named in the foregoing letter. CHAPTEIl XII. further proceedings in the state court. judge sul- livan's decision reversed. Mrs. Terry did not wait for the release of her hus- band from jail before renewing the battle. /On the 22d of January, 1889, she gave notice of a motion in the Superior Court for the appointment of a receiver who should take charge of th^ Sharon estate, which she alleged was being squandered to the injury of her in- terest therein acquired under the judgment of Judge Sullivan. On the 29th of January an injunction was issued by the United States Circuit Court commanding her and all others to desist from this proceeding. The Terrys seemed to feel confident that this would bring on a final trial of strength between the federal and state courts, and that the state court would prevail in enforcing its judgment and orders. The motion for a receiver was submitted after full argument, and on the 3d of June following Judge Sullivan rendered a decision asserting the jurisdiction of his court to entertain the motion for a receiver, and declaring the decree of the United States Circuit Court inoperative. In his opinion Judge Sullivan reviewed the opinion of Justice Field in the revivor suit, taking 78 issue therewith. As that decision had been affirmed by the Supreme Court of the United States nearly a month before, to wit, on the 13th of May, 1889, it was rather late for such a discussion. Having thus de- cided, however, that the motion for a receiver could be made, he set the hearing of the same for July 15, 1889. On the 27th of May, one week before the rendering of this decision by Judge Sullivan, the mandate of the United States Supreme Court had been filed in the Circuit Court at San Francisco, by which the decree of that court was afhrmed. Whether a receiver would be appointed by Judge Sullivan, in the face of the de- cision of the Supreme Court of the United States, became now an interesting question. Terry and his lawyers affected to hold in contempt the Supreme Court decree, and seemed to think no serious attempt would be made to enforce it. Meantime, both of the Terrys had been indicted in the United States Circuit Court for the several offenses committed by them in assaulting the marshal in the court-room as hereinbefore described. These indict- ments were tiled on the 20tli of September. Dilatory motions were granted from time to time, and it was not until the 4th of June that demurrers to the indict- ments were filed. The summer vacation followed without any argument of these demurrers. It was 79 during tliis vacation that Jvistice Field arrived in Cali- fornia, on the 20th of June. The situation then existing was as follows : The criminal proceedings against the Terrys were at a standstill, having been allowed to drag along for nine months, with no further progress than the filing of de- murrers to the indictments. The appeal to the Supreme Court of the State from Judge Sullivan's order denying a new trial had been argued and submitted on the 4th of May, but no de- cision had been rendered. Despite the pendency of that appeal, by reason of which the judgment of the Supreme Court of the State had not yet become final, and despite the mandate of the United States Supreme Court affirming the decree in the revivor case, Judge Sullivan had, as we have already seen, set the loth of July for the hearing of the motion of the Terrys for the appointment of a re- ceiver to take charge of the Sharon estate. For them to proceed with this motion would be a contempt of the United States Circuit Court. The arrival of Justice Field should have instructed Judge Terry that the decree of that court could not be defied with impunity, and that the injunction issued in it against further proceedings upon the judgment in the state court would be enforced with all the power authorized by the Constitution and laws of the United States for the enforcement of judicial process. 80 As the 15th of July approached, the lawyers who had been associated with Terry commenced discussing among themselves what would be the probable conse- quence to them of disobeying an injunction of the United States Circuit Court. The attorneys for the Sharon estate made known their determination to apply to that Court for the enforcement of its writ in their behalf. The Terrys' experience in resisting the au- thority of that court served as a warning for their attorneys. On the morning of the 15th of July Judge Terry and his wife appeared, as usual, in the Superior Court room. Two of their lawyers came in, remained a few minutes and retired. Judge Terry himself remained silent. His wife arose and addressed the court, saying that her lawyers were afraid to appear for her. She said they feared if they should make a motion in her behalf, for the appointment of a receiver, Judge Field would put them in jail ; therefore, she said, she ap- peared for herself. She said if she got in jail she would rather have her husband outside, and this was why she made the motion herself, while he remained a spectator. The hearing was postponed for several days. Be- fore the appointed day therefor, the Supreme Court of the State, on the 17th of July, rendered its decision, reversing the order of Judge Sullivan refusing a new 81 trial, thereby obliterating tlie judgment in favor of Sarah Althea, and the previous decision of the appel- late court affirming it. ♦ The court held that this previous judgment had not become the law of the case pending the appeal from the order den^'ing a new trial. It held that where two appeals are taken in the same case, one from the judgment and the other from the order denying a new trial, the whole case must be held to be under the control of the Supreme Court until the whole is disposed of, and the case remanded for further proceedings in the court below. The court reversed its previous decision, and declared that if the statements made by Sarah Althea and by her witnesses had been true, she never had been the wife of William Sharon, for the reason that, after the date of the alleged contract of marriage, the parties held themselves out to the public as single and unmarried people, and that even according to the findings of fact by Judge Sullivan the parties had not assumed marital rights, duties, and obligations. Tlie case was there- fore remanded to the Superior Court for a new trial. ^On the 2d of August the demurrers to the several indictments against the Terrys came up to be heard in the United States District Court. The argument upon them concluded on the 5th. On the 7th the demurrer to one of the indictments against Sarah Althea was overruled and she entered a plea of not guilty. No 82 decision was rendered at that time upon either of the five other indictments. On the following day, August 8th, Justice Field left San Francisco and went to Los Angeles for the pur- pose of holding court. CHAPTEK XIIT. ATTEMPTED ASSASSINATION OF JUSTICE FIELD, RESULTING IN terry's OWN DEATH AT THE HANDS OF A DEPUTY UNITED STATES MARSHAL. In view of wliat was so soon to occur, it is important to understand the condition of mind into which Judge Terry and his wife had now wrought themselves. The}^ had been married about two years and a half. In their desperate struggle for a share of a rich man's estate they had made themselves the terror of the community. Armed at all times and ready for mortal combat with whoever opposed their claims, they seemed, up to the 17th of July, to have won their way in the State courts by intimidation. The decision of the United States Circuit Court was rendered before they were married. It proclaimed the pretended mar- riage agreement a forgery, and ordered it to be deliv- ered to the clerk of the court for cancellation. Terry's marriage with Sarah Althea, twelve days after this, was a declaration of intention to resist its authority. The conduct of the pair in the Circuit Court on the 3d of September must have had some object. They may have thought to break up the session of the court for that day, and to so intimidate the judges that they would not carry out their purpose of rendering the 84 decision ; or they may have hoped that, if rendered, it would be allowed to slumber without any attempt to enforce it ; or even that a rehearing might be granted, and a favorable decision forced from the court. It takes a brave man on the bench to stand tirmly for his convictions in the face of such tactics as were adopted by the Terr3^s. The scene was expected also to have its effect upon the minds of the judges of the Supreme Court of the State, who then were yet to pass finally upon Sullivan's judgment on the appeal from the order denying a new trial. But the Terrys had not looked sufficiently at the possible consequence of their actions. The}^ had thus far gone unresisted. As District Attorney Carey wrote to the Attorney -General : '' They were unable to appi-eciate that an officer should perform his official duty when that duty in any way requires that his efforts be directed against them." When, therefore, Justice Field directed the removal of Mrs. Terry from the court, and when her doughty defendant and champion, confident of being able to defeat the order, found himself vanquished in the en- counter, disarmed, arrested, and finally imprisoned, his rage was boundless. He had found a tribunal which cared nothing for his threats, and was able to over- come his violence. A court that would put him in the 85 Alameda jail for six mouths for resisting its order would enforce all its decrees with equal certainty. From the time of the Terrys' incarceration in the Alameda county jail their threats against Justice Field became a matter of such notoriety that the drift of discussion was not so much whether they would mur- der the Justice, as to when arid under what circum- stances they would be likely to do so. There is little doubt that Terry made many threats for the express purpose of having them reach the knowledge of Judge Field at Washington, in the hope and belief that they would deter him from going to California. Ho probably thought that the Judge would prefer to avoid a violent contlict, and that if his ab- sence could be assured it might result in allowing the decree of the United States Circuit Court to remain a dead letter. He told many people that Justice Field would not dare come oat to the Pacific Coast. He got the idea into his mind, or pretended to, that Justice Field had put him in jail in order to be able to leave for Wash- ington before a meeting could be had with him. Terry would of course have preferred Field's absence and a successful execution of Sullivan's judgment to his presence in the State and the enforcement of the federal decree. When the announcement was made that Justice 86 Field had left Wasbingtou for San Francisco, public and private discussions were actively engaged in, as to where he would be likely to encounter danger. A special deputy was sent by the marshal to meet the overland train on which he was travelling, at Reno, in Nevada. The methods of Mrs. Terry de- fied all calculations. She was as likely to make her appearance, with her burly husband as an escort, at the State line, as she finally did at the breakfast table at Lathrop. f Justice Field reached his quarters in San Francisco on the 20th of June. From that day until the 14th of August public discussion of what the Terrys would do continued. Some of the newspapers seemed bent upon provoking a conflict, and inquired with devilish mischief when Terry was going to carry out his tlireatened purpose. The threats of the Terr^^s and the rumors of their intended assault upon Justice Field were reported to him and he was advised to go armed against such assault, which would be aimed against his life. He answered : " No, sir ! I will not carry arms, for when it is known that the judges of our courts are compelled to arm themselves against assaults in consequence of their judicial action it will be time to dissolve the courts, consider government a failure, and let society lapse into barbarism." As the time approached for the hearing of the 87 motion for a receiver before Judge Sullivan, July 15tli, grave apprehensions were entertained of serious trouble. Great impatience was expressed with the Supreme Court of the State for not rendering its de- cision upon the appeal from the order denying a new trial. It was hoped that the previous decision might be reversed, and a conflict between the two jurisdic- tions thus avoided. When the decision came, on the 17th of July, there seemed to be some relaxation of the great tension in the public mind. With the Supreme Court of the State, as well as the Supreme Court of the United States, squarely on the record against Mrs. Terry's pretensions to have been the wife of William Sharon, it was hoped that the long war had ended. When Justice Field left San Francisco for Los Angeles he had no apprehensions of danger, and strenuously objected to being accompanied by the dep- uty marshal. Some of his friends were less confident. They realized better than he did the bitterness that dwelt in the hearts of Terry and his wife, intensified as it was by the realization of the dismal fact that their last hope had expired with the decision of the Supreme Court of the State. The marshal was impressed with the danger that woidd attend Justice Field's journey to and from the court at Los Angeles. He went from San Francisco on the 8th of August. 88 After holding court in Los Angeles he took the train for San Francisco August 13th, the deputy marshal occupying a section in the sleeping car directly opposite to his. Judge Terry and his wife left San Francisco for their home in Fresno the day fol- lowing Justice Field's departure for Los Angeles. Fresno is a station on the Southern Pacific between Los Angeles and San Francisco. His train left Los Angeles for San Francisco at 1.30 Tuesday afternoon, August 13th. The deputy marshal got out at all the stations at which any stop was made for any length of time, to observe who got on board. Before retiring he asked the porter of the car to be sure and wake him in time for him to get dressed before they reached Fresno. At Fresno, where they arrived during the night, he got off the train and went out on the platform. Among the passengers who took the train at that station were Judge Terry and wife. He immediately returned to the sleeper and informed Justice Field, who had been awakened by the stopping of the train, that Terry and his wife had got on the train. He replied : " Very well. I hope that they will have a good sleep." Neagle slept no more that night. The train reached Merced, an intervening station between Fresno and Lathrop, at 5.30 that morning. Neagle there conferred with the conductor, on the platform, and referred to 89 tlie threats so often made by the Terrys. He told him that Justice Field was on the train, and that he was accompanying- him. He re(;[uosted liim to tidegrapli to Lathroii, to the constalilo usually in attendance there, to be at hand, and that if any trouble occurred he would assist in preventing violence. Justice Field got u]) before the train reached Lathrop, and told the deputy marshal that he was going to take his breakfast in the dining-room at that place. The following is his statement of what took place : " He said to me, ' Judge, you can get a good break- fast at the buffet on board.' I did not think at the time what he was driving at, though I am now satisfied that he wanted me to take breakfast on the car and not get off. I said I prefer to have my breakfast at this station. I think I said I had come down from the Yosemite Valley a few days before, and got a good breakfast there, and was going there for that purpose. " He replied : ' I Avill go with you.' We were among the first to get oft" from the train." As soon as the train arrived. Justice Field, leaning on the arm of Neagie, because of his lameness, pro- ceeded to the dining-room, where they took seats for breakfast. There were in this dining-room fifteen tables, each one of which was ten feet long and four feet wide. 90 They were arranged in three rows of five each, the tables running lengthwise with each otl^er, with spaces between them of four feet. The aisles between the two rows were about seven feet apart, tlie rows running north and south. Justice Field and Neagle were seated on the west side of the middle table in the middle row, the Justice being nearer the lower corner of the table, and Neagle at his left. Yery soon after — Justice Field says " a few minutes," while Neagle says " it may be a minute or so " — Judge Terry and his wife entered the dining- room from the east. They walked up the aisle, be- tween the east and middle rows of tables, so that Justice Field and Neagle were faced towards them. Judge Terry preceded his wife. Justice Field saw them and called Neagle's attention to them. He had already seen them. As soon as Mrs. Terry had reached a point nearly in front of Justice Field, she turned suddenly around, and scowling viciouslj^ went in great haste out of the door at which she had come in. This was for the pur- pose, as it afterwards appeared, of getting her satchel with the pistol in it, which she had left in the car. Judge Terr}^ apparently paid no attention to this move- ment, but proceeded to the next table above and seated himself at the upper end of it, facing the table at which Justice Field was seated. Thus there were between 91 the two men as they sat at the tables a distance equal to two table-lengths and one space of four feet, making about twenty-four feet. Terrv had been seated but a very short time — Justice Field tlK)Ught it a moment or two, Neagle thought it three or four minutes — when he arose and moved down towai'ds the door, this time walking through the aisle he/iind Justice Field, instead of the one in front of him as before. Justice Field supposed, when he arose, that he was going out to meet his wife, as she had not returned, and went on with his breakfast; but when Terry had reached a point behind him, and a little to the right, within two or three feet of him, he halted. Justice Field was not aware of this, nor did he know that Terry had stopped, until he was struck by him a violent blow in the face from behind, followed instantaneously by another blow at the back of his head. Neagle had seen Terry stop and turn. Between this and Terry's assault there was a pause of four or five seconds. Instantaneously upon Terry's dealing a blow, Neagle leaped from his chair and inter- posed his diminutive form between Justice Field and the enraged and powerful man, who now sought to execute his long-announced and murderous purpose. Terry gave Justice Field no warning of his presence except a blow from behind with his right hand. As Neagle rose, he shouted : " Stop, stop, I am an officer." Judge Terry had drawn back his right arm 92 for a third blow at Justice Field, and with clinched fist was about to strike, when his attention was thus arrested by Neagle, and looking at him he evidently recognized in him the man who had drawn the knife from his hand in the corridor before the marshal's office on the third of September of the preceding year, while he was attempting to cut his way into the mar- shal's office. Neagle put his right hand up as he ordered Terry to stop, when Terry carried his right hand at once to his breast, evidently to seize the knife which he had told the Alameda county jailer he " always carried." Says Neagle : " This hand came right to his breast. It went a good deal quicker than I can explain it. He continued looking at me in a desperate manner and his hand got there." The expression of Terry's face at that time was de- scribed by Neagle in these words: " The most desperate expression that I ever saw on a man's face, and I have seen a good many in my time. It meant life or death to me or him." Having thus for a moment diverted the blow aimed at Justice Field and engaged Terry himself, Neagle did not wait to be butchered with the latter's ready knife, which he was now attempting to draw, but raised his six-shooter with his left hand (he is left-handed) and 93 holding the barrel of it with his right hand, to prevent the pistol from being knocked out of his hands, he shot twice ; the first shot into Terry's body and tlio second at his head. Terry immediately commenced sinking very slowly. Knowing by experience that men mor- tally wounded have been often known to kill those with whom they were engaged in such an encounter, Neagle fired the second shot to defend himself and Justice Field against such a possibility. The following is an extract from Justice Field's tes- timony, commencing at the point where Judge Terry rose from his seat at the breakfast table : "I supposed, at the time, he was going out to meet his wife, as she had not returned, so I went on with my breakfast. It seems, however, that he came around back of me. I did not see him, and he struck me a violent blow in the face, followed instantaneoush" by another blow. Coming so immediately together, the two blows seemed like one assault. I heard ' Stop, stop,' cried by Neagle. Of course I was for a moment dazed by the blows. I turned mj head around and saw that great form of Terry's with his arm raised and fist clinched to strike me. I felt that a terrific blow was coming, and his arm was descending in a curved way as though to strike the side of my temple, when I heard Neagle cry out : ■ Stop, stop, 1 am an officer.' Instantly two shots followed. I can only explain the second shot from the fact that he did not fall instantly. I did not get up from my seat, although it is proper for me to say that a friend of mine thinks I did, but I did not. I looked around and saw Terry on the floor. I looked at him and saw that particular movement of the 94 eyes that indicates the presence of death. Of course it was a great shock to me. It is impossible for any one to see a man in the full vigor of life, with all those facul- ties that constitute life instantly extinguished without being affected, and I was. I looked at him for a mo- ment, then went around and looked at him again, and passed on. Great excitement followed. A gentleman came to me, whom I did not know, but T think it was Mr. Lidgerwood, who has been examined as a witness in this case, and said : ' What is this ?' I said : ' I am a Justice of the Supreme Court of the United States. My name is Judge Field. Judge Terry threatened my life and attacked me, and the depvity marshal has shot him.' The deputy marshal was perfectly cool and col- lected, and stated : ' I am a deputy marshal, and I have shot him to protect the life of Judge Field.' I cannot give you the exact words, but I give them to you as near as I can remember them. A few moments afterwards the deputy marshal said to me : ' Judge, I think you had better go to the car.' I said, ' Very well.' Then this gentleman, Mr. Lidgerwood, said : ' I think you had better.' And with the two I went to the car. I asked Mr. Lidgerwood to go back and get my hat and cane, which he did. The marshal went with me, re- mained some time, and then left his seat in the car, and, as I thought, went back to the dining-room. (This is, however, I am told, a mistake, and that he only went to the end of the car.) He returned, and either he or some one else stated that there was great excitement ; that Mrs. Terry was calling for some violent proceed- ings. I must say here that, dreadful as it is to take life, it was only a question of seconds whether my life or Judge Terry's life should be taken. I am firmly con- vinced that had the marshal delayed two seconds both he and myself would have been the victims of Terry. " In answer to a question whether he had a pistol or other weapon on the occasion of the homicide, 95 Justice Field replied : ' No, sir. I have never had on luy person or used a weapon since I went on the bencli of the Sni^reme Court of this State, on the 13th of Oc- tober, 1857, except once, when, years ago, I rode over the Sierra Nevada mountains in a buggy with General Hutchinson, and at that time I took a pistol with me for protection in the mountains. With that exception, I have not had on my person, or used, any ]iistol or other deadly weapon.'" Judge Terry had fallen very near the place where he first stopped, near the seat occupied by Justice Field at the table. Neagle testified that if Justice Field had had a weapon, and been active in using it, he was at such a disadvantage, seated as he was, with Terry standing over him, that he would have been unable to raise his hand in his own defense. A large number of witnesses were examined, all of whom agreed upon the main facts as above stated. Some of them distinctly heard the blows administered by Terry upon Justice Field's face and head. All testified to the loud warning given Terry by Neagle that he was an officer of the laAv, accompanied by his command that Terry should desist. It was all the work of a few seconds. Terry's sudden attack, the quick progress of which, from the first blow, was neither arrested nor slackened until he was disabled by the bullet from Neagie's pistol, could have been dealt with in no other way. It was evidently a ques- 96 tion of the instaut whether Terry's knife or Neagle's pistol should prevail. Says Neagle : " He never took his eyes off me after he looked at me, or I mine off him. I did not hear him say any- thing. The only thing was he looked like an infuriated giant to me. I believed if I waited two seconds I should have been cut to pieces. I was within four feet of him." Q. " What did the motion that Judge Terry made with his right hand indicate to you? " A. " That he would have had that knife out there within another second and a half, and trying to cut my head off." Terry, in action at such a time, from all accounts, was more like an enraged wild animal than a human being. The supreme moment had arrived to which he had been looking forward for nearly a year, when the life of the man he hated was in his hands. He had repeatedly sworn to take it. Not privately had he made these threats. With an insolence and an audac- ity born of lawlessness and of a belief that he could hew his way with a bowie-knife in courts as well as on the streets, he had publicly sentenced Judge Field to death as a penalty for vindicating the majesty of the law in his imprisonment for contempt. It would have been the wildest folly that can be conceived of for the murderous assault of such a man to have been met with mild persuasion, or an attempt to arrest him. As well order a hungry tiger to desist 97 from springing at his prey, to sheatlie his outstretched claws and suffer himself to be bound, as to have met Terry with anything less than the force to which he was himself appealing. Every man who knows any- thing of the mode of life and of quarrelling and fight- ing among the men of Terry's class knows full well that when they strike a blow they mean to follow it up to the death, and they mean to take no chances. The only way to prevent the execution of Terry's revenge- ful and openly avowed purpose was by killing him on the spot. Only a lunatic or an imbecile or an accom- plice would have pursued any other course in Neagle's place than the one he pursued, always supposing he had Neagle's nerve and cool self-possession to guide him in such a crisis. While this tragedy was being enacted Mrs. Terry was absent, having returned to the car for the satchel containing her pistol. Before she returned, the shot had been fired that defeated the conspiracy between her and her husband against the life of a judge for the performance of his official duties. She returned to the hotel with her satchel in her hand just as her husband met his death. The manager of the hotel stopped her at the door she was entering, and seized her satchel. She did not relinquish it, but both struggled for its possession. A witness testified that she screamed out while so struggling : " Let me get at 98 it ; I will fix him." Many witnesses testified to her frantic endeavor to get the pistol. She called upon the crowd to hang the man that killed Judge Terry, and cried out, " Lynch Judge Field." Again and again she made frantic appeals to those present to lynch Judge Field. She tried to enter the car where he was, but was not permitted to do so. She cried out, " If I had my pistol I would fix him." The testimony subsequently taken left no room to doubt that Terry had his deadly knife in its place in his breast at the time he made the attack on Justice Field. As the crowd were all engaged in breakfasting, his movements attracted little attention, and his motion toward his breast for the knife escaped the notice of all but Neagle and one other witness. Neagle rushed between Terry and Justice Field, and the latter had not a complete view of his assailant at the moment Avhen the blow intended for him was changed into a move- ment for the knife with which Judge Terry intended to dispose of the alert little man, with whom he had had a former experience, and who now stood between him and the object of his greater wrath. But the conduct of Mrs. Terry immediately after the homicide was proof enough that her husband's knife had been in readiness. The conductor of the train swore that he /saw her lying over the body of her hus- band about a minute, and when she rose up she 99 unbuttoned his vest and said : " You may search him ; he has got no weapon on him." Not a word had been said about his having had a weapon. No one had made a movement towards searching him^ as ought to have been done; but this woman, who had been to the car for her pistol and returned with it to join, if necessary, in the murderous work, had all the time and opportun- ity necessary for taking the knife from its resting-place imder his vest, smearing one of her hands with his blood, which plainly showed where it had been and what she had been doing. Neagle could not search the body, for his whole attention was directed to the protection of Justice Field. Mrs. Terry repeated the challenge to search the body for the knife after it had been removed. This showed clearly that the idea uppermost in her mind was to then and there manu- facture testimony that he had not been armed at all. Her eagerness on this subject betrayed her. Had she herself then been I searched, after rising from Terry's body, the knife would doubtless have been found con- cealed upon her person. A number of witnesses tes- tified to her conduct as above described. She said also: "You will find that he has no arms, for I took them from him in the car, and I said to him that I did not want him to shoot Justice Field, but I did not object to a tist bout." I This reference to a fist bout was, of course, an 100 admission that they had premeditated the assault. It was Judge Terry's knife and not a pistol that Judge Field had to fear. Terry's threats had always pointed to some gross indignity that he would put upon Justice Field, and then kill him if he resented or resisted it. One of his threats was that he would horsewhip Judge Field, and that if he resented it he would kill him. In short, his intentions seem to have been to commit an assassination in alleged self-defense. The train soon left the station for San Francisco. A constable of Lathrop had taken the train, and ad- dressing Neagle told him that he would have to arrest him. This officer had no warrant and did not himself witness the homicide. Justice Field told him that he ought to have a warrant before making the arrest, re- marking, if a man should shoot another when he was about to commit a felony, such as setting tire to your house, you would not arrest him for a murder ; or if a highwayman got on the train to plunder. The officer replied very courteouslj' by the suggestion that there would have to be an inquest. Neagle at once said, '' I am ready to go," thinking it better to avoid alF contro- versy, and being perfectly willing to answer anywhere* for what he had done. I Arriving at the next station (Tracy), Neagle and the officer took a buggy and went to the county jail at Stockton. Thus was a deputy marshal of the United States withdrawn from the 101 service of his Government while engaged in a most important and as yet unfinished dnty because he had with rigid faithfuhiess performed that duty. He was arrested by an officer who had no warrant and had not witnessed the homicide, and lodged in jail. Meanwhile a detective in San Francisco received a telegram from the sherifl' of San Joaquin county to arrest Judge Field. Supposing it to be his duty to comply with this command, the detective crossed the bay to meet the train for that purpose. Marshal ^Franks said to him : " You shall not arrest him. You have no right to do so. It would be an outrage, and if you attempt it I will arrest you." j The news of these exciting events produced an in- tense excitement in San Francisco. Upon his arrival at this place, under the escort of the marshal and many friends. Justice Field repaired to his quarters in the Palace Hotel. CHAPTER XIV. SARAH ALTHEA TERRY CHARGES JUSTICE FIELD AND DEPUTY MARSHAL NEAGLE WITH MURDER. The body of Judge Terry was taken from Lathrop to Stockton, accompanied by his wife, soon after his death. On that very evening Sarah Althea Terry swore to a comphiint before a justice of the peace named Swain, charging Justice Field and Deputy Marshal Neagle with murder. After the investigation before the coroner Assistant District Attorney Gibson stated that the charge against Justice Field would be dismissed, as there was no evidence whatever to con- nect him with the killing. Mrs. Terry did not see the shooting and was not in the hotel at the time of the homicide. Having, there- fore, no knowledge upon which to base her statement, her affidavit was entitled to no greater consideration than if it had stated that it was made solely upon her belief without any positive information on the subject. Only the most violent of Terry's friends favored the wanton indignity upon Justice Field, and his arrest, but they had sufficient influence with the district attor- ney, Mr. White, a young and inexperienced lawyer, to carry him along with them. The justice of the peace 108 before whom Sarah Althea had laid the information issued a warrant on the following day for the arrest both of Justice Field and Neagle. From this time this magistrate and the district attorney appeared to act under orders from Mrs. Terr3^ The preliminary examination was set for Wednesday of the following week, during which time the district attorney stated for publication that Justice Field would have to go to jail and stay there during the six intervening days. It was obvious to all rational minds that Mrs. Terrj^'s purpose was to use the machinery of the magistrate's court for the purpose of taking Judge Field to Stockton, where she could execute her threats of killing him or having him killed ; and if she should fail to do so, or postpone it, then to have the satisfac- tion of placing a justice of the Supreme Court of the United States in a prisoner's cell, and hold him there for six days awaiting an examination, that being the extreme length of time that he could be so held under the statute. The district attorney was asked if he had realized the danger of bringing Justice Field to Stock- ton, where he might come in contact with Mrs. Terry. The othcer replied : •' We had intended that if Justice Field were brought here, Mrs. Terry Avould be placed under the care of ■her friends, and that all precautious to prevent any difficulty that was in the power of the district attorney 104 Avould be taken." That was to say, Mrs. Terry would do no violence to Justice Field unless " her friends " permitted her to do so. As some of them were pos- sessed of the same murderous feelings towards Justice Field as those named here, the whole transaction had the appearance of a conspiracy to murder him. No magistrate can lawfully issue a warrant without sufficient evidence before him to show probable cause. It was a gross abuse of power and an arbitrary and lawless act to heed the oath of this frenzied woman, who notoriously had not witnessed the shooting, and had, but a few hours before, angrily insisted upon hav- ing her own pistol returned to her that she, herself, might kill Justice Field. It was beyond belief that the magistrate believed that there was probabb cause, or the slightest appearance of a cause, upon which to base the issue of the warrant. Neagle was brought into court at Stockton at 10 o'clock on the morning after the shooting, to wit, on Thursday, the 15th, and his preliminary examination set for Wednesday, the 21st. Bail could not be given prior to that examination. This examination could have proceeded at once, and a delay of six days can only be accounted for by attributing it to the malice and vindictiveness of the woman who seemed to be in charge of the proceedings. The keen disappointment of Mrs. Terry, and those 105 who were under her influence, at Judge Terry's failure to murder Justice Field, must have been greatly soothed by the prospect of having yet another chance at the latter's life, and, in any event, of seeing him in a cell in the jail during the six days for which the ex- amination could be delayed for that express purpose. The sheriff of San Joaquin county proceeded to San Francisco with the warrant for his arrest on Thursday evening. In company with the chief of police and Marshal Franks, he called upon Justice Field, and after a few momyuts' conversation it was arranged that he should present the warrant at one o'clock on the following day, at the building in which the federal courts are held. CHAPTEE XV. JUSTICE field's arrest AND PETITION FOR RELEASE ON HABEAS CORFUS. At the lappointed hour Justice Field awaited the sheriff iu his chambers, surrounded by friends, includ- ing judges, ex-judges, and members of the bar. As the sheriff entered Justice Field arose and pleasantly greeted him. The sheriff bore himself with dignity, and with a due sense of the extraordinary proceeding in which his duty as an officer required him to be a participant. With some agitation he said : " Justice Field, I presume you are aware of the nature of ray errand." " Yes," replied the Justice, " proceed with your duty ; I am ready. An officer should always do his duty." The sheriff* stated to him that he had a warrant, duly executed and authenticated, and asked him if he should read it. "I will waive that, Mr. Sheriff," replied the Justice. The sheriff then handed him the warrant, which he read, folded it up and handed it })ack, saying pleasantly : " I recognize your authority, sir, and submit to the arrest ; I am, sir, in your custody." Meanwhile a petition had been prepared to be pre- sented to Judge Sawyer for a writ of haheas corpus. 107 returnable at ouce before the United States court. As soon as the arrest was made the petition was signed and presented to Judge Sawyer, who ordered the writ to issue returnable forthwith. In a very few minutes IT. S. Marshal Franks served the writ on the sheriff. While the proceedings looking to the issue of the writ were going on, Justice Field had seated himself, and invited the sheriff to be seated. The latter com- plied with the invitation, and began to say something in regard to the unpleasant duty which had devolved upon him, but Justice Field promptly replied : " Not so, not so ; you are but doing your plain duty, and I mine in submitting to arrest. It is the first duty of judges to obey the law." As soon as the habeas corpus writ had been served, the sheriff said he was ready to go into the court. " Let me walk with you," said Justice Field, as they arose, and took the sheriff's arm. In that way they entered the court-room. Justice Field seated himself in one of the chairs usually occupied by jurors. Time was given to the sheriff' to make a formal return to the writ, and in a few minutes he formally presented it. The petition of Judge Field for the writ set forth his official character, and the duties imposed upon him by law, and alleged that he had been illegally arrested, while he was in the discharge of those duties, and that his illegal detention interfered with and prevented him from discharging them, j 108 Then followed a statement of the facts, showing the arrest and detention to be illegal. This statement em- braced the principal facts connected with the contempt proceedings in 1888, and the threats then and there- after made by the Terrys of violence upon Justice Field ; the precautions taken in consequence thereof by the Department of Justice for his protection from violence at their hands, and the murderous assault made upon him, and his defense by Deputy Marshal Neagle, resulting in the death of Terry, and that he, the petitioner, in no manner defended or protected himself, and gave no directions to the deputy marshal, and that he was not armed with any weapon. The petition then states : " That under the circumstances detailed, the said Sarah Althea Terry, as your petitioner is informed and believes, and upon such information and belief alleges, falsely and maliciously swore out the warrant of arrest hereinbefore set out against 3'our petitioner, without any further basis for the charge of murder than the facts hereinbefore detailed, and that the war- rant aforesaid was issued by such justice of the peace, without any just or probable cause therefor. * * * And your petitioner further represents that the charge against him, and the warrant of arrest in the hands of said sheriff, are founded upon the sole affidavit of Mrs. Sarah Althea Terry, who was not present and did not see the shooting which caused the death of said David S. Terry." 109 In order to show the little reliance to be placed in the oath of Mrs. Terry, the petition stated : " That in a suit brought by William Sharon, now deceased, against her before her marriage to the said Terr}-, it was proved and held by tlie Circuit Court of the United States that she had committed the forgery of the docu- ment produced in that case, and had attempted to sup- port it by perjury and subornation of perjury, and had also been guilty of acts and conduct showing herself to be an abandoned woman, without veracity. " '" * " Your petitioner further represents that the aban- doned character of the said Sarah Altliea Terry, and the fact that she Avas found guilty of perjury and for- gery in the case above mentioned by the said Circuit Court, and the fact of the revengeful malice entertained toward your petitionei' by said Sarah Althea Terry, are notorious in the State of California, and are notorious in the city of Stockton, and as your petitioner believes are well known to the district attorney of the said county of San Joaquin, fyid also to the said justice of the peace who issued the said warrant ; and your peti- tioner further alleges that had either of the said officers taken any pains whatever to ascertain the truth in the case, he would have ascertained and known that there was not the slightest pretext or foundation for any such charge as was made, and also that the affi- davit of the said Sarah Althea Terry was not entitled to the slightest consideration whatever. no " Yonr petitioner further states that it is to him in- comprehensible how an}' man, acting in a consideration of duty, coukl have listened one moment to charges from such a source, and without having sought some confirmation from disinterested witnesses ; and your petitioner believes and charges that the whole object of the proceeding is to subject your petitioner to the humiliation of arrest and confinement at Stockton, where the said Sarah Althea Terry may be able, by the aid of partisans of hers, to carry out her long-continued and repeated threats of personal violence upon your petitioner, and to prevent your petitioner from dis- charging the duties of his ofiice in cases pending against her in the federal court at San Francisco." The sheriff's return was as follows : " Return of sherift' of San Joaquin county. Gala., County of San Joaquin, State of California : " Shekiff's Office. " To the UonoraUe Circuit Court of the United States for the Northern District of California : " I hereby certify and return that before the coming to me of the hereto-annexed writ of haheas corpus, the said Stephen J. Field was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of Stockton township. State of California, county of San Joaquin, and by the endorsement made upon said warrant. Copy of said warrant and endorsement is annexed hereto, and made a part of this return. Nevertheless, I have the body Ill of the said Steplien J. Field before the honorahle court, as I am in the said writ CQmmaiided. " Aui^iist IG, 1889. "THOMAS CUNNINGHAM, " Sheriff', Sail Jocujuin Co., Cnlifoninir 111 order to give the petitioner time to traverse the return if he thought it expedient to do so, and to give him and the State time to produce witnesses, the fur- ther hearing upon the return was adjourned until the following Thursday morning, the 22d, and the peti- tioner was released on his recognizance with a bond fixed at So,000. On the same day a petition on the part of Neagle was presented to Judge Saw3^er asking that a writ of habeas corpus issue in his behalf to Sheritf Cunning- ham. The petition was granted at once, and served upon the sheriff immediately after the service of the writ issued on behalf of Justice Field. Early on the morn- ing of Saturda}', August 17, Neagle was brought from Stockton by the sheriff at 4.30 A. M. District Attor- ney White and Mrs. Terry's lawyer, Maguire, were duly notified of this movement and were passengers on the same train. At 10.30 Sheriff" Cunningham ap- peared in the Circuit Court with Neagle to respond to the writ. He returned that he held Neagle in custody under a warrant issued by a justice of the peace of that county, a copy of which he produced ; and also a copy of the aiSidavit of Sarah Althea Terry 112 upon which the warrant was issued. A traverse to that return was then filed, presenting various grounds why the petitioner should not be held, the most im- portant of which were that an officer of the United States, specially charged with a particular duty, that of protecting one of the justices of the Supreme Court of the United States whilst engaged in the perform- ance of his duty, could not, for an act constituting the very performance of that duty, be taken from the fur- ther discharge of his duty and imprisoned by the State authorities, and that when an officer of the United States in the discharge of his duties is charged with an offense consisting in the performance of those duties, and is sought to be arrested, and taken from the further performance of them, he can be brought before the tribunals of the nation of which he is an officer, and the fact then inquired into. The attorney- general of the State appeared with the district attorney of San Joaquin county, and contended that the ofiense of which the petitioner was charged could only be in- quired into before the tribunals of the State. CHAPTER XVI. JUDGE terry's funeral — REFUSAL OF THE SUPREME COURT OF CALIFORNIA TO ADJOURN ON THE OCCASION. The funeral of Judge Terry occurred on Friday, the 16th. An unsuccessful attempt was made for a public demonstration. The fear entertained by some that eulogies of an incendiary character would be delivered was not realized. The funeral passed off without ex- citement. The rector being absent, the funeral service was read by a vestryman of the church. On the day after Judge Terry's death the fol- lowing proceedings occurred in the Supreme Court of the State : Late in the afternoon, just after the counsel in a certain action had concluded their argument, and be- fore the next cause on the calendar was called, James L. Crittenden, Esq., Avho was accompanied by W. T. Baggett, Esq., arose to address the court. He said : " Your honors, it has become my painful and sad duty to formally announce to the court the death of a former chief justice " Chief Justice Beatty: "Mr. Crittenden, I think that is a matter which should be postponed until the court has had a consultation about it." 114 The court then, without leaving the bench, held a whispered consultation. Mr. Crittenden then went on to say : " I was doing this at the request of several friends of the deceased. It has been customary for tiie court to take formal action prior to the funeral. In this in- stance, I understand the funeral is to take place to- morrow." Chief Justice Beatty: "Mr. Crittenden, the mem- bers of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until to-morrow morning." Mr. Crittenden and Mr. Baggett then withdrew from the court-room. On the following day, in the presence of a large assembly, including an unusually hirge attendance of attorneys, Mr. Crittenden renewed his motion. He said : " If the court please, I desire to renew the matter which I began to present last evening. As a friend — a personal friend — of the late Judge Terry, I should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if I did not present the matter which I propose to present to this bench this morning. I have known the gentleman to whom I have reference for over thirty 3ears, and I desire simply now, in stating that I make this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentle- man and his family and myself for so long a period, require that I should at this time move this court, as a 115 court, out of recollection for the memory of the man who presided in the Supreme Court of this State for so many years with honor, ability, character, and integrity, and, therefore, I ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is to-day." Chief Justice Beatty said : " I regret very much that counsel should haye per- sisted in making this formal announcement, after the intimation from the court. Upon full consultation we thought it would be better that it should not be done. The circumstances of Judge Terry's death are notori- ous, and under these circumstances this court had de- termined that it would be better to pass this matter in silence, and not to take any action upon it ; and that is the order of the court." The deceased had been a chief justice of the tribunal which, bj- its silence, thus emphasized its condemnation of the conduct by which he had placed himself without the pale of its respect. CHAPTER XVII. HABEAS CORPUS PROCEEDINGS IN JUSTICE FIELD's CASE. Ou Thursday, August 22d, the hearing of the Jiaheas corpus case of Justice Field commenced in the United States Circuit Court, under orders from the Attorney-General, to whom a report of the whole matter had been telegraphed. The United States dis- trict attorney appeared on behalf of Justice Field. In addition to him there also appeared as counsel for Justice Field, Hon. Richard T. Mesick, Saml. M. Wilson, Esq., and W. F. Herrin, Esq. The formal re- turn of the writ of habeas corpus had been made by the sheriff of San Joaquin county on the 16th. To that return Justice Field presented a traverse, which was in the following language, and was signed and sworn to by him : " The petitioner, Stephen J. Field, traverses the re- turn of the sheriff of San Joaquin county. State of Cal- ifornia, made by him to the writ of haheas corpus by the circuit judge on the ninth circuit, and made returnable before the Circuit Court of said circuit, and avers : " That he is a justice of the Supreme Court of the United States, allotted to the ninth judicial circuit, and is now and has been for several weeks in California, in attendance upon the Circuit Court of said circuit in the discharge of his judicial duties ; and, further, that the 117 said warrant of the justice of the peace, H. V. J. Swain, in Stockton, California, issued on the 14th day of Au- gust, 1889, under which the petitioner is held, was issued by said justice of the peace without reasonable or proba- ble cause, upon the sole affidavit of one Sarah Althea Terry, who did not see the commission of the act which she charges to have been a murder, and who is herself a woman of abandoned character, and utterly unworthy of belief respecting any matter whatever ; and, further, that the said warrant was issued in the execution of a conspiracy, as your petitioner is informed, believes, and charges, between the said Sarah Althea Terry and the district attorney. White, and the said justice of the peace, H. V. J~. Swain, and one E. L. Colnon, of said Stockton, to prevent by force and intimidation your petitioner from discharging the duties of his office here- after, and to injure him in his person on account of the laAvful discharge of the duties of his office heretofore, by taking him to Stockton, where he could be subjected to indignities and humiliation, and where they might compass his death. " That the said conspiracy is a crime against the United States, under the laws thereof, and was to be executed by an abuse of the process of the State court, two of said conspirators being officers of the said county of San Joaquin, one the district attorney and the other a justice of the peace, the one to direct and the other to issue the warrant upon which your petitioner could be arrested. "And the petitioner further avers that the issue of said writ of habeas corpus and the discharge of j^our petitioner thereunder were and are essential to defeat the execution of the said conspiracy. "And your petitioner further avers that the accusa- tion of crime against him, upon which said warrant was issued, is a malicious and malignant falsehood, for which thex'e is not even a pretext ; that he neither ad- 118 vised nor had an}^ knowledge of the intention of any one to commit the act which resulted in the death of David S. Terry, and that he has not carried or used any arm or Aveapon of any kind for nearly thirty years. "All of which your petitioner is ready to establish by full and competent proof. " Wherefore your petitioner prays that he may be discharged from said arrest and set at liberty. "STEPHEN J. FIELD." The facts alleged in this document were beyond dis- pute, and constituted an outrageous crime, and one for which the conspirators were liable to imprisonment for a term of six years, under section 5518 of the Revised Statutes of the United States. To this traverse the counsel for the sheriflf filed a demurrer, on the ground that it did not appear by it that Justice Field Avas in custody for an act done or omitted in pursuance of any law of the United States, or of any order or process or decree of any court or judge thereof, and it did not appear that he was in custody in violation of the Con- stitution or any law or treaty of the United States. The case was thereupon submitted with leave to coun- sel to file briefs at any time before the 27th of August, to which time the further hearing was adjourned. Before that hearing the Governor of the State ad- dressed the following communication to the attorney- general : 119 " Executive Department, " State of California, "Sacramento, August 21, 1889. " Hon. A. G. Johnston, "Attorney-General^ Sacranienio. " Dear Sir : The arrest of Hon. Stephen J. Field, a justice of the Supreme Court of the United States, on the unsupported oath of a woman who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the State unless dis- avowed. I therefore urge upon you the propriety of at once instructing the district attorney of San Joaquin county to dismiss the unwarranted proceedings against him. " The question of the jurisdiction of the state courts in the case of the deputy United States marshal, Neagle, is one for argument. The unprecedented in- dignity on Justice Field does not admit of argument. " Yours truly, "R. W. WATEEMAN, '■'Governor.'''' This letter of /Governor Waterman rang out like an alarm bell, warning the chief law officer of the State that a subordinate of his was prostituting its judicial machinery to enable a base woman to put a gross in- dignity upon a justice of the Supreme Court of the United States, whom she had just publicly threatened to kiU, and also to aid her in accomplishing that pur- pose. The Avretched proceeding had already brought upon its authors indignant denunciation and merciless ridicule from every part of the Union. The attorney- general responded to the call thus made upon him by 120 instructing the district attorney to dismiss the charge against Justice Field, because no evidence existed to sustain it. The rash young district attorney lost no time in ex- tricating himself from the position in which the arrest of Justice Field had placed him. On the 26tli of August, upon his motion, and the filing of the attorney- general's letter, the charge against Justice Field was dismissed by the justice of the peace who had issued the warrant against him. The dismissal of this charge \ released him from the sheriff's claim to his custody, and the habeas corpus proceedings in his behalf fell to the ground. On the 27th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released Justice Field from custody, whereupon the case of habeas crn'pus was dismissed. In making the order, Circuit Judge Sawyer severely animadverted on what he deemed the shameless pro- ceeding at Stockton. He said : " We are glad that the prosecution of Mr. Justice Field has been dismissed, founded, as it was, upon the sole, reckless, and as to him manifestly false affidavit of one whose relation to the matters leading to the tra- gedy, and whose animosity towards the courts and judges who have found it their duty to decide against her, 'and especialW towards Mr. Justice Field, is a part of the judicial and notorious public history of the coun- try. 121 " It was, under the circumstances, and npon the sole affidavit produced, especially after the coroner's in- quest, so far as Mr. Justice Field is con^-erned, a shame- less proceeding, and, as intimated by the Governor of the Commonwealth, if it had been further persevered in, would have been a lasting disgrace to the State. " While a justice of the Supreme Court of the United States, like every other citizen, is amenable to the laws, he is not likely to commit so grave an offense as mur- der, and should he be so unfortunate as to be unavoid- ably involved in any way in a homicide, he could not attbrd to escape, if it were in his power to do so ; and when the act is so publicly performed by another, as in this instance, and is observed by so many witnesses, the officers of the law should (certainly have taken some little pains to ascertain the facts before proceeding to arrest so distinguished a dignitary, and to attempt to incarcerate him in prisons with felons, or to put him in a position to be further disgraced, and perhaps as- saulted by one so violent as to be publicl}' reported, not only then but on numerous previous occasions, to have threatened his life. -'We are extremely gratified to find that, through the action of the chief magistrate, and the attornej'-gen- eral, a higher officer of the law, we shall be spared the necessity of further inquiring as to the extent of the remedy afforded the distinguished petitioner, by the Constitution and laws of the United States, or of en- forcing such remedies as exist, and that the stigma cast upon the State of California by this hasty and, to call it by no harsher term, ill-advised arrest will not be in- tensified by further prosecution." i| Thus ended this most remarkable attempt upon the liberty of a United States Supreme Court Justice, under color of State authority, the execution of which would again have placed his life in great peril. 122 The grotesque feature of the performance was aptly presented by the following imaginary dialogue which appeared in an Eastern paper : Newsboy : " Man tried to kill a judge in California !" Customer : " What was done about it ?" Newsboy : " Oh ! They arrested the judge." j The illegality of Justice Field's arrest will be per- fectly evident to whoever will read sections 811, 812, and 813 of the Penal Code of California. These sec- tions provide that no warrant can be issued by a magis- trate until he has examined, on oath, the informant, taken depositions setting forth the facts tending to establish tli^ commission of the offense and the guilt of the accused, and himself been satisfied by these depo- sitions that there is reasonable ground that the person accused has committed the offense. None of these requirements had been met in Justice Field's case. ^ It needs no lawyer to understand that a magistrate violates the plain letter as well as the spirit of these provisions of law when he issues a warrant without first having before him some evidence of the probable, or at least the possible, guilt of the accused. If this were otherwise, private malice could temporarily sit in judgment upon the object of its hatred, however blame- less, and be rewarded for perjury by being allowed the use of our jails as places in which to satisfy its ven- geance. Such a view of the law made Sarah Althea 1:?:^ the magistrate at Stockton on the 14th of August, and Justice Swain her obsequious amanuensis. Such a view of the hiw would enable any convict who had just served a term in the penitentiary to treat himself to the luxury of dragging to jail the judge wlio sentenced him, and keeping him there without bail as long as the magistrate acting for him could be induced to de- lay the examination. The arrest of Justice Field was an attempt to kidnap him for a foul purpose, and if the United States cir- cuit judge had not released him he would have been the victim of as arbitrary and tyrannical treatment as is ever meted oat in Kussia to the most dangerous of nihilists, to punish him for having narrowly escaped assassination b}' no act or etibrt of his own. CHAPTER XVIII. HABEAS CORPUS PROCEEDINGS IN NEAGLE's CASE. This narrative would not be complete without a statement of the proceedings in the United States Cir- cuit Court, and in the United States Supreme Court on appeal, in the habeas coiyvs proceedings in the case of Neagle, the deputy marshal, whose courageous devotion to his official duties had saved the life of Justice Field at the expense of that of his would-be assassin. We have already seen that Neagle, being in the custody of the sheriff of San Joaquin county, upon a charge of murder in the shooting of Judge Terry, had presented a petition to the United States Circuit Court for a writ of habeas co7j>i/s to the end that he might thereby be restored to his liberty. A writ was issued, and upon its return, August 17th, the sherift" of San Joaquin county produced Neagle and a copy of the warrant under which he held him in cus- tody, issued by the justice of the peace of that county, and also of the affidavit of Sarah Althea Terry, upon which the warrant was granted. Neagle being desirous of traversing the return of the sheriff, further proceed- ings were adjourned until the 22d of the month, and in the meantime he was placed in the custody of the 125 United States marshal for the district. On the 22d a traverse of the return was tiled by him stating the par- ticulars of the homicide with which he was charged as narrated above, and averring that he was at the time of its commission a deputy marshal of the United States for the district, acting under the orders of his superior, and under the directions of the Attorney- General of the United States in protecting the Asso- ciate Justice, whilst in the discharge of his duties, from the threatened assault and violence of Terry, who had declared that on meeting the Justice he would insult, assault, and kill him, and that the homicide with which the petitioner is charged was committed in resisting the attempted execution of these threats in the belief that Terry intended at the time to kill the Justice, and that but for such homicide he would have succeeded in his attempt. These particulars are stated with great fullness of detail. To this traverse, which was after- wards amended, but not in any material respect, a demurrer was interposed for the sherifi" by the district attorney of San Joaquin county. Its material point was that it did not appear from the traverse that Neagle was in the custody of the sherifi" for an act done or omitted in pursuance of any law of the United States, or any order, process, or decree of any court or judge thereof, or in violation of the Constitution or a treatv of the United States. Tlie court then considered 126 whether it should hear testimony as to the facts of the case, or proceed with the argument of the demurrer to the traverse. It decided to take the testimony, and to hear counsel when the whole case was l)efore it, on the merits as well as on the question of jurisdiction. The testimony was then taken. It occupied several days, and brought out strongly the facts which have been already narrated, and need not here be repeated. When completed, the question of the jurisdiction of the Circuit Court of the United States to interfere in the matter was elaborately argued by the attorney-gen- eral of the State, and special counsel who appeared with the district attorney of San Joaquin county on behalf of the State, they contending that the offense, with which the petitioner was charged, could only be inquired into before a tribunal of the State. Mr. Carey, United States district attorney, and Messrs. Herrin, Mesick, and Wilson, special counsel, appeared on behalf of the petitioner, and contended for the jurisdiction, and for the discharge of the petitioner upon the facts of the case. They did not pretend that any person in the State, be he high or low, might not be tried by the local authorities for a crime committed against the State, but they did contend that when the alleged crime consisted in an act which was claimed to have been done in the performance of a duty devolv- ing upon him by a law of the United States, it was 127 witliin the competency of their courts to inquire, in the first instance, whether that act thus done was in the performance of a duty devolving upon him ; and if it was, that the alleged oftender had not committed a crime against the State, and was entitled to be dis- charged. Their arguments were marked by great ability and learning, and their perusal would be interesting and instructive, but space will not allow me to give even a synopsis of them. The court, in deciding the case, Avent into a full and elaborate consideration, not only of its jurisdiction, but of ever}^ objection on the merits presented by counsel on behalf of the State. Only a brief outline can be given. The court held that it was within the competency of the President, and of the Attorney-General as the head of the Department of Justice, representing him, to di- rect that measures be taken for the protection of officers of the Government whilst in the discharge of their duties, and that it was specially appropriate that such protection should be given to the justices of the Su- preme Court of the United States, whilst thus engaged in their respective circuits, and in passing to and from them ; that the Attorney-General, representing the Pres- ident, was fully justified in giving orders to the marshal of the California district to appoint a deputy to look specially to the protection of Justices Field and Saw- 128 yer from assault and violence threatened by Terry and his wife ; and that the deputy marshal, acting under instructions for their protection, was justified in any measures that were necessary for that purpose, even to taking the life of the assailant. The court recognized that the Government of the United States exercised full jurisdiction, within the sphere of its powers, over the whole territory of the country, and that when any conflict arose between the State and the General Government in the administra- tion of their respective powers, the authority of the United States njust prevail, for the Constitution de- clares that it and the laws of the United States in pur- suance thereof "sliall be the supreme law of the land, and that the judges in every State shall be bound thereby, anything in the Constitution and laws of any State to the contrary notwithstanding." The court quoted the language of the Supreme Court in Tennessee V. Davis (100 U. S. 257, 263), that " It [the General Government] can act only through its officers and agents, and they must act within the States. If, when thus acting and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged oftense against the law of the State, yet warranted by the Federal authority they possess, and if the General Government is powerless to interfere at once for their protection — if their protec- 129 tion must be left to the action of the State court — the operations of the General Government may, at any time, be arrested at the will of one of its members. The legislation of a State may be unfriendly. It may affix penalties to acts done under the immediate direc- tion of the National Government and in obedience to its laws. It may deny the authority conferred by those laws. The State court may administer not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the Govern- ment. And even if, after trial and final judgment in the State court, a case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged Federal power arrested. We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority extend- ing over the whole territory of the Union, acting upon the States and upon the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. No State govern- ment can exclude it from the exercise of any authoritj^ conferred upon it by the Constitution, obstruct its au- thorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." To this strong lan- guage the Circuit Court added : 130 " The very idea of a government composed of ex- ecutive, legislative, and judicial departments necessarily comprehends the power to do all things, through its appropriate officers and agents, within the scope of its general governmental purposes and powers, requisite to preserve its existence, protect it and its ministers, and give it complete efficienc^dn all its parts. It necessarily and inherently includes power in its executive depart- ment to enforce the laws, keep the national peace with regard to its officers while in the line of their duty, and protect by its all-powerful arm all the other depart- ments and the officers and instrumentalities necessary to their efficiency while engaged in the discharge of their duties." In language attributed to Mr. ex-Secretary Bayard, used Avith reference to this very case, which we quote, not as a controlling judicial authority, but for its in- trinsic, sound, common sense, " The robust and essen- tial principle must be recognized and proclaimed, that the inherent powers of every government which is sufficient to authorize and enforce the judgment of its courts are, equally, and at all times, and in all places, sufficient to protect the individual judge who, fearlessly and conscientiously in the discharge of his duty, pronounces those judgments." In reference to the duties of the President and the powers of the Attorney-General under him, and of the latter's control of the marshals of the United States, the court observed that the duties of the President are prescribed in terse and comprehensive language in 131 section 3 of article II of the Constitution, which de- chires that " he shall take care that the laws be faith- fully executed ;" that this gives him all the authority necessarj to accomplish the purposes intended — all the authorit}^ necessarily inherent in the office, not otherwise limited, and that Congress, added the court, in pursuance of powers vested in it, has provided for seven departments, as subordinate to the President, to aid him in performing his executive functions. Sec- tion 346, R. S., provides that "there shall be at the seat of government an executive department to be known as the Department of Justice, and an Attorney- General, who shall be the head thereof." He thus has the general supervision of the executive branch of the national judiciary, and section 362 provides, as a por- tion of his powers and duties, that he " shall exercise general superintendence and direction over the at- torneys and marshals of all the districts in the United States and the Territories as to the manner of dis- charging their respective duties ; and the several district attorneys and marshals are required to report to the Attorney-General an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the Attorney-General may direct." Section 788, R. S., provides that " the marshals and their deputies shall have, in each State, the same powers in executing the 132 laws of the United States as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof." By section 817 of the penal code of California the sheriff is a " peace officer," and by section 4176 of the political code he is " to preserve the peace " and " prevent and suppress breaches of the peace." The marshal is, therefore, under the pro- visions of the statute cited, " a peace officer," so far as keeping the peace in any matter wherein the powers of the United States are concerned, and as to such matters he has all the powers of the sheriff, as peace officer under the laws of the State. He is, in such matters, " to preserve the peace " and " prevent and suppress breaches of the peace." An assault upon or an assassination of a judge of a United States court while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions, or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the United States, and within the jurisdiction and power of the marshal or his deputies to prevent as a peace ofiicer of the National Government. Such an assault is not merel}^ an assault upon the per- son of the judge as a man ; it is an assault upon the national judiciary, which he represents, and through it an assault upon the authority of the nation itself. It is, necessarily, a breach of the national peace. As a 133 national peace officer, under the conditions indicated, it is the duty of tlie marshal and his deputies to pre- vent a breach of the national peace by an assault upon the authority of the United States, in the person of a judge of its highest court, while in the discharge of his duty. If this be not so, in the language of the Supreme Court, " Why do we have marshals at all?" What useful functions can they perform in the economy of the National Government ? Section 787 of the Revised Statutes also declares that " It shall be the duty of the marshal of each district to attend the District and Circuit Courts Avhen sitting therein, and to execute throughout the district all lawful precepts directed to him and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty." There is no more authority specifically conferred upon the marshal by this section to protect the judge from assassination in open court, without a specific order or command, than there is to protect him out of court, Avhen on the way from one court to another in the discharge of his official duties. The marshals are in daily attendance upon the judges, and performing official duties in their chambers. Yet no statute specifically points out those duties or re- quires their performance. Indeed, no such places as chambers for the circuit judges or circuit justices are 134 mentioned at all in the statutes. Yet the marshal is as clearly authorized to protect the judges there as in the court-room. All business done out of court by the judge is called chamber business. But it is not necessary to be done in what is usually called cham- bers. Chamber business may be done, and often is done, on the street, in the judge's own house, at the hotel where he stops, when absent from home, or it may be done in transitu, on the cars in going from one place to another within the proper jurisdiction to hold court. Mr. Justice Field could, as well, and as authoritatively, issue a temporary injunction, grant a writ of habeas corpus, an order to show cause, or do any other chamber business for the district in the dining-room at Lathrop, as at his chambers in San Francisco, or in the court-room. The chambers of the judge, where chambers are provided, are not an element of jurisdiction, but are a convenience to the judge, and to suitors — places where the judge at proper times can be readily found, and the business conveniently transacted. But inasmuch as the Eevised Statutes of the United States (sec. 753) declare that the writ of habeas co/j'ns shall not extend to " a prisoner in jail unless where he is in custody — for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof, or in custody in 135 violation of the Constitution or of a law or treaty of the United States," it was urged in the argument b}^ counsel for the State that there is no statute whicli specitically makes it the duty of a marshal or deputy marshal to protect the judges of the United States whilst out of the court-room, travelling from one point to another in their circuits, on official business, from the violence of litigants who have become oftended at the adverse de- cisions made by them in the performance of their judicial duties, and that such officers are not within the provisions of that section. To this the court replied that the language of the section is, " an act done in pursuance of a hno of the United States " — not in pursuance of a statute of the United States ; and that the statutes do not present in express terms all the law of the United States ; that their incidents and implications are as much a part of the law as their express provisions ; and that when they prescribe duties providing for the accomplishment of certain designated objects, or confer authority in general terms, they carry with them all the powers essential to effect the ends designed. As said by Chief Justice Marshall in Osborn v. Bank of the United States (9 Wheaton, 865-866), " It is not unusual for a legislative act to involve consecjuences which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessarv, nor is it usual, to say that lie shall 136 not be pnnisljed for obeying this order. His security is implied in the order itself. It is no unusual thing- for an act of Congress to imply, without expressing, this very exemption from State control, which is said to be so objectionable in this instance. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty ; and yet this protection is not expressed in any act of Congress. It is incidental to, and is implied in, the several acts by which these institutions are created ; and is secured to the individuals employed in them by the judicial power alone — that is, the judicial power is the instrument employed by the Government in administering this security." Upon this the Circuit Court observed : " If the officers referred to in the preceding passage are to be protected while in the line of their duty, without any special law or statute requiring such pro- tection, the judges of the courts, the principal officers in a department of the Government second to no other, are also to be protected, and their executive subordi- nates — the marshals and their deputies — shielded from harm by the national laws while honestly engaged in protecting the heads of the courts from assassination." Note.— I find the following apt illustrations of this doctrine in a journal of the day : If* military or naval ofificer of the United States, in the necessary 137 To the position that the preservation of tlie peace of the State is devolved solely upon the officers of the State, and not in any respect upon the marshals of the United States, the court replied : This position is al- suppressiou of a mutiny or enforcement of obedience, should wound or take the life of a subordinate, would it be contended that, if arrested for that act by the State authority, he could not be released on habeas corpus, because no statute expressly authorized the per- formance of the act ? If the commander of a revenue cutter should be directed to pursue and retake a vessel which, after seizure, had escaped from the custody of the law, and the officer in the perform- ance of that duty, and when necessary to overcome resistance, should injure or kill a member of the crew of the vessel he was ordered to recai^ture, and if for that act he shoiald be arrested and accused of crime under the State authority, will any sensible person maintain that the provisions of the habeas corpus act could not be invoked for his release, notwithstanding that no statute could be shown which directly authorized the act for which he was arrested ? If by com- mand of the President a company of troops were marched into this city to protect the subtreasury from threatened pillage, and in so doing life were taken, would not the act of the officer who commanded the troops be an act done in pursuance of the laws of the United States, and in the lawful exercise of its authority ? Covild he be im- prisoned and tried before a State jury on the charge of murder, and the courts of the United States be powerless to inquire into the facts on habeas corptts, and to discharge him if found to have acted in the performance of his duty V Can the authority of the United States for the protection of their officers be less than their authority to protect their property v There appears to be but one rational answer to these questions. In all these cases the authority vested in the officer to suppress a mutiny, or to overtake and capture an escaped vessel, or to protect the subtreasury from threatened pillage, carries with it power to do all things necessary to accomplish the object desired, even the killing of the offending party. The law conferring the authority thus ex- tended to the officer in these cases, is in the sense of the habeas corpus act, a law of the United States to do all things necessary for the execution of that authority. 188 ready answered by what has been said. But it is undoubtedly true that it was the imperative duty of the State to preserve the public peace and amply protect the life of Justice Field, hut it did not do it, and had the United States relied upon the State to keep the peace as to him — one of the justices of the highest court — in relation to matters concerning the performance of his official duties, they would have leaned upon a broken reed. The result of the efforts to obtain an officer from the State to assist in preserving the peace and protecting him at Lathrop was anything but suc- cessful. The officer of the State at Lathrop, instead of arresting the conspirator of the contemplated murderer, the wife of the deceased, arrested the officer of the United States, assigned by the Government to the spe- cial duty of protecting the justice against the very par- ties, while in the actual prosecution of duties assigned to him, without warrant, thereby leaving his charge without the protection provided by the Government he was serving, at a time when such protection seemed most needed. And, besides, the use of the State police force beyond the limits of a county for the protection of Justice Field would have been impracticable, as the powers of the sheriff would have ended at its borders, and of other township and city peace officers at the boundaries of their respective townships and cities. Only a United States marshal or his deputy could have 139 exercised these olfteial t'mu'tions tlirouh without 'it. You have escaped a great peril — acquired a fresh distinction — and vindicated most properly the dignity of your high station. I am glad to perceive that this is the general opinion. Anticipating the pleasure of seeing you in Washing- ton next term, I am always, dear sir. Most sincerely yours, E. J. PHELPS. Letter from Hon. George F. Hoar, Senator from Massachusetts : Worcester, A ugust 16, 1889. My Dear Judge Field : I think I ought to tell you, at this time, how high you stand in the confidence and reverence of all good men here, how deeply they were shocked by this out- rage attempted not so much on you as on the judicial office itself, and how entirely the prompt action of the officer is approved. I hope you may long be spared to the public service. I am faithfully yours, GEO. F. HOAE. Letter from Hon. J. Proctor Knott, for many 3'ears a Member of Congress from Kentucky and Chairman of the Judiciary Committee of the House of Representa- tives, and afterwards Governor of Kentucky : Lebanon, Kentucky, Septemher 5, 1889. My Dear Judge : * - •5«- I have had it in mind to write you from the moment 1 first heard of your fortunate escape from the fiendish 146 assassination with which you were so imminently threatened, but I have, since the latter part of May, been suffering from a most distressing affection of the eyes which has rendered it extremely difficult, and fre- quently, for days together, quite impossible to do so. Even now, though much improved, I write in great pain, but I cannot get my consent to delay it longer on any account. You are to be congratulated, my dear friend, and you know that no one could possibly do so with more genuine, heartfelt sincerity than I do myself. * " * I had been troubled, ever since I saw you had gone to your circuit, with apprehensions that you woiild be assassinated, or at least subjected to some gross out- rage, and cannot express my admiration of the serene heroism Avith which you went to your post of duty, de- termined not to debase the dignity of your exalted po- sition by wearing arms for your defense, notwithstand- ing you Avere fully conscious of the danger which menaced you. It didn't surprise me, however, for I knew the stuff you were made of had been tested be- fore. But I iv((s surprised and disgusted, too, that yov should have been charged or even suspected of any- thing wrong in the matter. The magistrate who issued the warrant for your arrest may possibly have thought it his duty to do so, Avithout looking beyond the " rail- ing accusation " of a baffled and infuriated murderess, which all the Avorld instinctively knew to be false, yet I suppose there is not an intelligent man, woman, or child on the continent Avho does not consider it an in- famous and unmitigated outrage, or who is not thor- oughly satisfied that the brave fellow avIio defended 3'ou so opportunely was legally and morally justitiable in Avhat he did. I have not been in a condition to t/iinJi' very coherently, much less to read anything in relation to the question of jurisdiction raised by the State au- thorities in the habeas corpus issued in your behalf by the U. S. Circuit Court, and it may be that, from the 147 mere newspaper's reports that have reached nfe, I have been unable to fnlly apprehend tlie obje(;tions which are made to the courts hearing all the facts on the trial of the writ ; but it occurs to me as a plain principle of common sense that the federal government should not only have the power, but that it is necessary to its own preservation, to protect its officers from being wantonly or maliciously interfered with, hindered or obstructed in the lawful exercises of their official duties, not arbi- trarily of course, but through its regularly constituted agencies, and according to the established principles of law ; and where such obstruction consists in the forci- ble restraint of the officer's liberty, I see no reason why the federal judiciary should not inquire into it on haheas corpus, Avheu it is alleged to be not only ille- gal but contrived for the very purpose of hindering the officer in the discharge of his official duties, and im- pairing the efficiency of the public service. It is true that in such an investigation a real or apparent conflict between State and federal authority may be presented, which a due regard to the respective rights of the two governments would require to be considered with the utmost caution, such caution, at least, as it is fair to presume an intelligent court would always be careful to exercise, in view of the absolute importance of maintaining as far as possible the strictest harmony between the two jurisdictions. Yet those rights are determined and by fixed legal principles, which it would be impossible for a court to apply in any case without a competent knowledge of the facts upon which their application in the particular case might depend. For instance, if your court should issue a writ of habeas corpus for the relief of a federal officer upon the averments in his petition that he was forcibly and illegally restrained of his liberty for the purpose of preventing him from performing his official duties, and it should appear in the return 148 to the writ that the person detaining the prisoner was a ministerial officer of the State government authorized by its laws to execute its process, and that he held the petitioner in custody by virtue of a warrant of arrest in due form, issued by a competent magistrate, to answer for an offense against the State laws, I presume the court, in the absence of any further showing, would instantly remand the petitioner to the custody of the State authorities without regard to his official position or the nature of his public duties. But, on the other hand, suppose there should be a traverse of the return, averring that the warrant of the arrest, though appar- ently regular in all respects, was in truth but a fraudu- lent contrivance designed and employed for the sole purpose of hindering and obstructing the petitioner in the performance of his duties as an officer of the gov- ernment of the United States ; that the magistrate who issued it, knowingly and maliciousl}^ abused his authority for that purpose in pursuance of a conspiracy between himself and others, and not in good faith, and upon probable cause to bring the prisoner to justice for a crime against the State. How then ? Here is an apparent conflict — not a real one — between the rights of the government of the United States and the gov- ernment of the State. The one has a right to the serv- ice of its officer, and the right to prevent his being unlawfully interfered with or obstructed in the per- formance of his official duties ; the other has the right to administer its laws for the punishment of crime through its own tribunals ; but it must be observed that the former has no right to shield one of its officers from a valid prosecution for a violation of the laws of the latter not in conflict with the Constitution and laws of the United States, nor can it be claimed that the latter has any right to sufler its laws to be prostituted, and its authority fraudulently abused, in aid of a conspiracy to defeat or obstruct the functions of the former. Such an abuse of authority is not, and cannot be in 140 any sense, a hona jide administration of State laws, but is itself a crime against them. What, then, would your court do ? You would probably say : If it is true that this man is held without probable cause under a fraud- ulent warrant, issued in pursuance of a conspiracy to which the magistrate who issued it was a party, to give legal color to a malicious interference with his func- tions as a federal official, he is the victim of a double crime — a crime against the United States and a crime against the State — and it is not only our duty to vin- dicate his right to the free exercise of his official duties, but the right of the federal government to his services, and its right to protect him in the legal performance of the same. But if, on the other hand, he has raised a mere " false clamor " — if he is held in good faith upon a valid Avarrant to answer for a crime committed against the State, it is equalh' as obligatory upon us to viphold its authority, and maintain its right to vindicate its own laws through its own machinery. To determine be- tween these two hypotheses we must know the facts. * * * The same simple reasoning, it occurs to me, applies to Mr. Neagle's case. Whether he acted in the line of his dut}' under the laws of the United States, as an officer of that government, is clearly a question within the jurisdiction of the federal judiciary. If he did., he cannot be held responsible to the State authority ; if he did not, he should answer, if required, before its tribunals of justice. I presume no court of ordinary intelligence. State or federal, would question these obvious principles ; but how any court could determine whether he did or did not act in the line of his official duty under the laws of his government without a judicial inquiry into \\\q. facts connected with the transaction I am unable to imagine. * * * I am, as always. Your faithful friend, J. PROCTOR KNOTT. Hon. S. J. Field, Associate Justice Supreme Court U. S. 150 Letter from Hon. William D. Shipman, formerly U. S. District Judge for the district of Connecticut : New York, OctoUr 20, 1889. Dear Judge : -X- * * * * * 1 have attentivel}^ read Judge Sawyer's opinion in the Neagle habeas corpus case, and I agree with his main conclusions. It seems to me that the whole ques- tion of jurisdiction turns on the fact whether you were, at the time the assault was made on you, engaged in the performance of your official duty. You had been to Los Angeles to hold court there and had finished that business. In going there you were performing an official duty as much as you were when you had held court there. It was then your official duty to go from Los Angeles to San Francisco and hold court there. You could not hold court at the latter place without going, and you were engaged in the line of your official duty in performing that journey for that purpose, as you were in holding the court after you got there. The idea that a judge is not performing official duty when he goes from court-house to court-house or from court-room to court-room in his own circuit seems to me to be absurd. The distance from one court- house or court-room to another is not material, and does not change or modify the act or duty of the judge. Now, Neagle was an officer of your court, charged with the duty of protecting your person while you were engaged in the performance of your official duty. ITis duty was to see to it that you were not unlawfully pre- vented from performing your official duty — not hindered or obstructed therein. For the State authorities to indict him for repelling the assault on you in the only way which he could do so effectually seems to me to be 151 as unwarranted by law as it would be for them to indict him for an assault on Terry when he assisted in dis- arming the latter in the court-room last year. When, therefore, it was conceded on the argument that if the affair at Lathrop had token place in the court-room during the sitting of the court, the jurisdic- tion of the Circuit Court would be unquestionable, it is difficult for me to see why the wdiole question of federal jurisdiction was not embraced in that concession. Assassinating a judge on the bench would no more ob- struct and defeat public justice than assassinating him on his way to the bench. In each case he is proceeding in the line of official duty imposed on. him by laiv and his official oath. The law requires him to go to court wherever the latter is held, and he is as much engaged in performing the duty thus imposed on him while he is proceeding to the place of his judicial labors as he is in performing the latter after he gets there. It would, therefore, seem to go without saying that any acts done in defense and protection of the judge in the performance of the duties of his office must pertain to the exclusive jurisdiction of the court of which he forms a part. The fact that the assault on you was avowedly made in revenge for your judicial action in a case heard by you gives a darker tinge to the deed, but, perhaps, does not change the legal character of the assault itself. That Neagle did his whole duty, and in no way ex- ceeded it, is too plain for argument. Yours faithfully, W. D. SHIPMAN. Mr. Justice Field. Letter from James C. Welling, president of Columbian Universit}^, Washington : 152 Hartford, August 15, 1889. My Dear Judge: It is a relief to know that Justice, as well as the honored justice of our Supreme Judiciary, has been avenged by the pistol-shot of Neagle. The life of Terry has long since been forfeited to law, to decency, and to morals. He has already exceeded the limit assigned by holy scripture to men of his ilk. " The bloody-minded man shall not live out half his days." The mode of his death was in keeping with his life. Men who break all the laws of nature should not ex- pect to die by the laws of nature. In all this episode you have simply worn the judicial ermine without spot or stain. You defeated a bold, bad man in his machinations, and the enmity you thereby incurred was a crown of honor. I am glad that you are to be no longer harassed by tlie menace of this man's violence, for such a menace is specially trying to a minister of the law. We all know that Judge Field the man would not flinch from a thousand Terrys, but Judge Field the Justice could hardly take in his own hands the protection of his person, where the threatened outrage sprang entirely from his official acts. I wish, therefore, to congratulate you on your escape alike from the violence of Terry and from the necessity of killing him with your own hands. It was meet that you should have been defended by an executive officer of the court assailed in your person. For doubtless Terry, and the hag who was on the hunt with him, were minded to murder you. Convey my cordial felicitations to Mrs. Field, and believe me ever, my dear Mr. Justice, Your faithful friend, JAMES C. WELLING. Mr. Justice Field. 153 Letter from Eight Rev. B. Wistar Morris, E]-is('opal Bishop of Oregon : BiSHorcROFT, Portland, Oregon, Atigust 22, 1889. My Dear Judge Field : I hope a word of congratulation from your Oregon friends for your escape in the recent tragedy will not be considered an intrusion. Of course we have all been deeply interested in its history, and proud that you were found as you were, without the defenses of a bully. I will not trespass further on your time than to sub- scribe myself, Very truly your friend, B. WISTAR MORRIS. Mr. Justice Field. A copy of the following card was enclosed in this letter : AN UNAEMED JUSTICE. Portland Oregon, August 19. "To the Editor' of the Oregonian : There is one circumstance in the history of the Field and Terry tragedy that seems to me is worthy of more emphatic comment than it has yet received. I mean the fact that Judge Field had about his person no weapon of defense whatever, though he knew that this miserable villain was dogging his steps for the purpose of assaulting him, perhaps of taking his life. His brother, Mr. Cyrus W. Field, says : " It was common talk in the East here, among my brother's friends, that Terry's threats to do him bodily harm were made with the full intent to follow them up. Terr}' threatened openly to shoot the Justice, and we, 154 who kneAV liim, were convinced be would certainly do it if he ever got a chance. " I endeavored to dissuade my brother from making the trip West this year, but to no purpose, and he said, ' I have a duty to perform there, and this sort of tiling can't frighten me away. I know Terry will do me harm if he gets a chance, and as I shall be in California some time, he will have chances enough. Let him take them.' " When urged to arm himself he made the same re- ply. He said that when it came to such a pass in tliis country that judges find it necessary to go armed, it will be time to close the courts themselves." This was a manly and noble reply and must recall to many minds that familiar sentiment : " He is thrice armed who has his quarrel just." With the daily and hourly knowledge that this assassin was ever upon his track, this brave judge goes about his duty and scorns to take to himself the defenses of a bully or a brigand ; and in doing so, how immeasurably has he placed him- self above the vile creature that sought his life, and all others who resort to deeds of violence. " They that take the sword shall perish with the sword," is a say- ing of wide application, and had it been so in this case ; had this brave and self-possessed man been moved f I'om • his high purpose by the importunity of friends, and when slain by his enemy, had been found armed in like manner with the murderer himself, what a stain would it have been upon his name and honor ? And how would our whole country have been disgraced in the eyes of the civilized world, that her highest ministers of justice must be armed as highwaymen as they go about their daily duties ! Well said this undaunted servant of the state : " Then will it be time to close the courts themselves." May we not hope, Mr. Editor, that this example of one occupying this high place in our country moy have 155 some influence in staying the spirit and deeds of vio- lence now so rife, and that they who are so ready to re- sort to the ritle and revolver may learn to regard them only as the instruments of the coAvard or the scoun- drel ? B. WISTAE M0RKI8. The citations given below from different journals, published at the time, indicated the general opinion of the country. With rare exce})tions it apjiroved of the action of the Government, the conduct of Neagle. and the bearing of Justice Field. The Alta Cdlifornia, a leading paper in California, had, on August 15, 1889, the day following the tragedy, the following article : THE TERRY TRAGEDY. The killing of David S. Terry by the United States Marshal David Neagle yesterday was an unfortunate affair, regretted, we believe, b}' no one more than by Justice Field, in whose defense the fatal shot was fired. There seems, however, to be an almost undivided senti- ment that the killing was justifiable. Every circum- stance attending the tragedy points to the irresistible conclusion that there was a premeditated determination on the part of Terry and his wife to provoke Justice Field to an encounter, in which Terry might either find an excuse for killing the man against whom he had threatened vengeance, or in which his wife might use the pistol which she always carries, in the pretended defense of her husband. For some time past it has been feared that a meeting between Terry and Justice Field would result in bloodshed. There is now indis- 156 piitable proof that Terry had made repeated threats that he would assault Justice Fiekl the first time he met him off the bench, and that if the Judge resisted he would kill him. Viewed in the light of these threats, Terry's presence on the same train with Justice Field will hardly be regarded as accidental, and his actions in the breakfast-room at Lathrop were directly in line with the intentions he had previously expressed. Nea- gle's prompt and deadly use of his revolver is to be judged with due reference to the character and known disposition of the man with whom he had to deal and to his previous actions and threats. He was attending Justice Field, against the will of the latter and in spite of his protest, in obedience to an order from the Attor- ney-General of the United States to Marshal Franks to detail a deputy to protect the person of Justice Field from Terry's threatened violence. A slap in the face may not, under ordinary circumstances, be sufficient provocation to justify the taking of human life ; but it must be remembered that there were no ordinary cir- cumstances and that Terry was no ordinary- man. Terry was a noted pistol-shot ; it Avas known that he invaria- bly carried arms and that he boasted of his ability to use them. If on this occasion he was unarmed, as Mrs. Terry asserts,* Neagle had no means of knowing that fact ; on the contrary, to his mind every presumption was in favor of the belief that he carried both pistol and knife, in accordance with his usual habit. As a peace officer, even apart from the special duty which had been assigned to him, he was justified in taking the means necessary to prevent Terry from continuing his assault ; but the means necessary in the case of one man may be wholly inadequate with a man bearing the reputation of David S. Terry, a man who only a few months previ- ously had drawn a knife while resisting the lawful au- * It has been conclusively established since that he was armed with his usual bowie-knife at the time. 157 tliority of aiiotber United States officer. It is true that if Terry was unarmed, the deputy marshal might have arrested him without taking his life or seriously endan- gering his own ; but Terry was a man of gigantic stature, and. though aged, in possession of a giant's strength ; and there is no one who was acquainted with him, or has had opportunity to learn his past history, who does not know that he was a desperate man, Avilling to take desperate chances and to resort to desperate means when giving way to his impulses of passion, and that any person who should at such a moment attempt to stay his hand w'ould do so at the risk of his life. Whether he had a pistol with him at that moment or not, there was every reason to believe that he was armed, and that the blow with his hand was intended only as the precursor to a more deadly blow with a weapon. At such moments little time is allowed for reflection. The officer of the law was called upon to act and to act promptly. He did so, and the life of David S. Terry was the forfeit. He fell, a victim to his own ungovern- able passions, urged on to his fate by the woman who was at once his wife and his client, and perhaps further incited by sensational newspaper articles which stirred up the memory of his resentment for fancied wrongs, and taunted him with the humiliation of threats unful- tilled. The close of Judge Terry's life ends a career and an era. He had the misfortune to carry into a ripened state of society the conditions which are tolerable only where social order is not fully established. Restless under authority, and putting violence above law, he lived by the sword and has perished by it. That example which refused submission to judicial finalities was becoming ofi'ensive to California, but the incubus of physical fear was upon many who realized that the survival of frontier ways into non-frontier period was a damage to the State. But, be this as it 158 may, the stubborn spirit that defied the hiw has fallen by the law. When Justice Field showed the highest judicial cour- age in the opening incidents of the tragedy that has now closed, the manhood of California received a dis- tinct impetus. When the Justice, with threats made against his life, returned to the State unarmed, and re- sentful of protection against assault, declaring that when judges must arm to defend themselves from as- sault offered in reprisal of their judicial actions society must be considered dissolved, he was rendering to our institutions the final and highest possible service. The event that followed, the killing of Terry in the act of striking him the second time from behind, while he sat at table in a crowded public dining-room, was the act of the law. The Federal Department of Justice, by its chief, the Attorney-General of the United States, had ordered its officer, the United States marshal for the northern district of California, to take such means and such measures as might be necessary to protect the persons of the judges against assault by Judge Terry, in carrying out the threats that he had made. This order was from the executive arm of the Government, and it was carried out to the letter. Judge Terry took the law into his own hands and fell. Nothing can add to the lesson his fate teaches. It is established now that in California no man is above the law ; that no man can affect the even poise of justice by fear. Con- fiding in his own strength as superior to tlie law, David S. Terry fell wretchedly. No more need be said. New California inscribes upon her shield, " Obedience to the law the first con- dition of good citizenship," and the past is closed. The Record- Union of Sacramento, one of the leading papers of California, on August 15, 1889, the day fol- 159 lowing the tragedy, liad the following article under the head — KILLING OF JUDGE TERRY. In the news columns of the Record- Union, will be found all the essential details of the circumstances of the killing of D. S. Terry. It will be evident to the reader that they readily sap the whole case, and that there is no substantial dispute possible concerning the facts. These truths we assert, without fear of success- ful contradiction, establish the justifiableuess of the act of the United States marshal who fired upon and killed Terry. We think there will be no dispute among sensible men that a federal circuit judge or a justice of the supreme bench, passing from one portion of the circuit to another in which either is reqiiired to open a court and hear causes, and. for the purpose of fully discharging his official duties, is while en route in the discharge of an official function, and constructively his court is open to the extent that an assault upon him, because of matters pending in his court, or because of judgments he has rendered or is to render, is an assault upon the court, and his bailifl' or marshal detailed to attend the court or to aid in preserving the order and dignity of the court has the same right to |)rotect him from assault then that he would have, had the judge actually reached his court-room. But further than this, we hold that in view of the undeniable fact that the Justice had knowledge of the fact that the Terrys, man and wife, had sworn to pun- ish him ; that they had indulged in threats against him of the most pronounced character ; that the}' had boarded a train on which it is probable they knew he had taken passage from one part of his circuit to another in his capacity as a magistrate ; in view of the fact that Terry sought the first opportunity to approach and strike liini, and that, too, wlien seated ; and in view 160 of the notorious fact that Terry always went armed — the man who shot Terry would have been justified in doing so had he not even been commissioned as an officer of the court. He warned the assailant to desist, and knowing his custom to go armed, and that he had threatened the Justice, and Terry refusing to restrain his blows, it was Neagle's duty to save life, to strike down the assailant in the most eftectual manner. Men who, having the ability to prevent murder, stand by and see it committed, may well be held to accountability for criminal negligence. But in this case it is clear that murder was intended on the part of the Terrys. One of them ran for her pistol and brought it, and would have reached the other's side with it in time, had she not been detained by strong men at the door. Neagle saw this woman depart, and coupling it with the advance of Terry, knew, as a matter of course, what it meant. He had been deputed by the chief law officer of the Govern- ment — in view of previous assaults by the Terrys and their threats and display of weapons in court — to stand guard over the judges and protect them. He acted, therefore, precisely as it was proper he should do. Had he been less prompt and vigorous, all the world knows that not he but Terry would to-day be in custody, and not Terry but the venerable justice of the Supreme Court of the United States would to-day be in the coffin. These remarks have grown too extended for any elaboration of the moral of the tragedy that culmi- nated in the killing of David S. Terry yesterday. But we cannot allow the subject to be even temporarily dismissed without calling the thought of the reader to contemplation of the essential truth that society is bound to protect the judges of the courts of the "land from violence and the threats of violence ; otherwise the decisions of our courts must conform to the vio- 161 lonco t]ireatened,an(l there will be an end of our judicial system, the third and most valuable factor in the sciieme of representative government. Society cannot, there- fore, punish, but must applaud the man who defends the courts of the people and the judges of those courts from such violence and threats of violence. For it must be apparent to even the dullest intellect that all such violence is an outrage upon the judicial conscience, and therefore involves and puts in peril the liberties of the people. The New Orleans Times- Democrat, in one of its is- sues at this period, used the following language : The judge in America who keeps his official ermine spotless, who faithfully attends to the heavy and re- sponsible duties of his station, deserves that the peo- ple should guard the sanctity of his person with a strength stronger than armor of steel and readier than the stroke of lance or sword. Though the judges be called to pass on tens of thousands of cases, to sentence to imprisonment or to death thousands of criminals, they should be held by the people safe from the hate and vengeance of those criminals as if they were guarded by an invulnerable shield. If Judge Field, of the Supreme Court, one of the nine highest judges under our republican government, in travelling recently over his circuit in California, had been left to the mercy of the violent man who had re- peatedly threatened his life, who had proved himself ready with the deadly knife or revolver, it would have been a disgrace to American civilization ; it would have been a stigma and stain upon American manhood ; it would have shown that the spirit of American liberty, which exalts and pays reverence to our judiciary, had been replaced by a public apathy that marked the be- ginning of the decline of patriotism. 162 Judge Field recognized this when, in being advised to arm himself in case his life was endangered, he uttered the noble words: "No, sir; I do not and will not carry arms, for when it is known that the judges of the court are compelled to arm themselves against assaults offered in consequence of their judicial action it will be time to dissolve the coiirts, consider the government a failure, and let society lapse into bar- barism." That ringing sentence has gone to the re- motest corner of tlie land, and everywhere it has gone it should fire the American heart with a proud resolve to protect forever the sanctity of our judiciary. Had not Neagle protected the person of Judge Field from the assault of a dangerous and violent ruffian, ap- parently intent on murder, by his prompt and decisive action, shooting the assailant down to his death, it is certain that other brave men would have rushed quickly to his rescue ; but Neagle's marvelous quickness fore- stalled the need of any other's action. The person of one of the very highest American judges was preserved unharmed, while death palsied the murderous hand that had sworn to take his life. That act of Neagle's was no crime. It was a deed that any and every American should feel proud of hav- ing done. It was an act that should be applauded over the length and breadth of this great land. It should not have consigned him for one minute to prison walls. It should have lifted him high in the esteem of all the American people. When criminals turn executioners, and judges are the victims, we might as well close our courts and hoist the red flag of anarchy over their silent halls and darkened chambers. The New York Ilei-dld, in its issue of August 19, 1889, said : The sensation of the past week is a lesson in republi- canism and a eulogium on the majesty of the law. 163 It was uot A personal coutroversy between Stephen J. Field and David S. Terry. It was a coutlict between law and lawlessness — between a judicial officer who represented the law and a man who sought to take it into his own hands. One embodied the peaceful power of the nation, the will of the people ; the other defied that power and appealed to the dagger. Justice Field's whole course shows a conception of judicial duty that lends grandeur to a republican judiciar\'. It is an inspiring example to the citizens and especially to the judges of the country. He was reminded of the danger of returning to California while Judge Terry and his wife were at large. His firm answer was that it was his duty to go and he would go. He was then advised to arm himself for self-defense. His repl}' embodies a nobility that should make it his- toric : " When it comes to such a pass in this country that judges of the courts find it necessary to go armed it will be time to close the courts themselves." This sentiment was not born of any insensibility to danger ; Jiistice Field fully realized the peril himself. But above all feeling of personal concern arose a lofty sense of the duty imposed upon a justice of the nation's highest court. The officer is a representative of the law — a minister of peace. He should show by his example that the law is supreme ; that all must bow to its authority ; that all lawlessness must yield to it. When judges who represent the law resort to violence even in self-defense, the pistol instead of the court becomes the arbiter of controversies, and the authority of the government gives way to the power of the mob. Rather than set a precedent that might tend to such a result, that would shake popular confidence in the judiciary, that would lend an}' encouragement to vio- lence, a judge, as Justice Field evidently felt, may well risk his own life for the welfare of the commonwealth. He did not even favor the proposition that a marshal be detailed to guard him. 164 The course of tlie venerable Justice is an example to all who would have the law respected. It is also a lesson to all who would take the law into their own hands. Not less exemplary was his recognition of the supremacy of the law when the sheriff of San Joaquin appeared before him with a warrant of arrest on the grave charge of murder. The warrant was an outrage, but it was the duty of the officer to serve it, even on a justice of the United States Supreme Court. When the sheriff hesitated and began to apologize before dis- charging his painful duty. Justice Field promptly spoke out : " Officer, proceed with your dut3^ I am ready, and an officer should always do his duty." These are traits of judicial heroism worthy the admiration of the world. The Albany Evening Thiion, in one of its issues at this time, has the following: JUSTICE FIELD RELIES UPON THE LAW FOE HIS DEFENSE. The courage of Justice Stephen J. Field in declining to carry weapons and declaring that it is time to close the courts when judges have to arm themselves, and at the same time proceeding to do his duty on the bench when his life was threatened by a desperate man, is without parallel in the history of our judiciary. We do not mean by this that he is the only judge on the bench that would be as brave as he was under the cir- cumstances, but every phase of the affair points to the heroism of the man. He upheld the majesty of the law in a fearless manner and at the peril of his life. He would not permit the judiciary to be lowered by any fear of the personal harm that might follow a straight- forward performance of his duty. His arrest for com- 165 plicity in a murder was borne by the same tranquil bravery — a supreme reliance upon a clue process of law. He did not want the officer to apolopjize to him for doing his duty. He had imprisoned Judge Terry and his wife Sarah Althea for contempt of court. * * * The threats by Judge Terry did not even frigliten him to carry weapons of self-defense. This illustration of upholding the majesty of the law is witliout precedent, and is worth more to the cause of justice than the en- tire United States army could be if called out to sup- press a riotous band of law-breakers. Justice Field did what any justice should do under the circumstances, but how many judges would have displayed a like courage had they been in his place ? The New York World, in its issue of Monday even- A NEW LEAF TUKNED. AVhen Judge Field, knowing that his life was threat- ened, went back unarmed into the State of California and about his business there, he gave wholesome re- buke to the cowardice that prompts men to carry a pistol — a cowardice that has been too long popular on the coast. He did a priceless service to the cause of progress in his State, and added grace to his ermine when he disdained to take arms in answer to the threats of assassins. Tiie men who have conspired to take Judge Field's life ought to need only one warning that a new day has dawned in California, and to tind that warning in the doom of the bully Terry. The law will protect the ermine of its judges. The New York World oi August 18th treats of the arrest of Justice Field as an outrage, and speaks of it as follows : 166 THE AEREST OF FIELD AN OUTRAGE AND A# ABSURDITY. The California magistrate who issued a warrant for Justice Field's arrest is obviously a donkey of the most precious quality. The Justice had been brutally as- sailed by a notorious ruffian who had publicly declared his intention to kill his enemy. Before Justice Field could even rise from his chair a neat-handed deputy United States marshal shot the ruffian. Justice Field had no more to do with the shooting than any other bystander, and even if there had been doubt on that point it was certain that a justice of the United States Supreme Court was not going to run away beyond the jurisdiction. His arrest was, therefore, as absurd as it was outrageous. It was asked for by the demented widow of the dead desperado simply as a means of subjecting the Justice to an indignity, and no magistrate possessed of even a protoplasmic possibility of com- mon sense and character would have lent himself in that way to such a service. The Kansas City Times, in its issue at this period, uses the following language : NO ONE WILL CENSURE. Oratihidefor Judge Field's Escape the Chief Sentiment. Deputy Marshal Neagle acted with terrible prompti- tude in protecting the venerable member of the Supreme Court with whose safety he was specially charged, but few will be inclined to censure him. He had to deal with a man of fierce temper, whose readiness to use firearms was part of the best known history of Cali- fornia. 167 It is a subject for general cono;ratulation that Justice Field escaped the violence of his assailant. The Amer- ican nation would be shocked to learn that a jud (nder denying tbe new trial an appeal was also taken to tbe Supreme Court. Tbe decision on tbe appeal from tbe judgment resulted in its affirmance. Tbe result of tbe appeal from tbe order denying a new trial was its re- versal, witb a direction for a new trial. Tbe effect of tbat reversal was to open tbe wliole case. In tbe meantime William Sbaron bad died and Miss Hill bad married David S. Terry. Tbe executor of William Sbaron, Frederick W. Sbaron, appeared as bis representative in tbe suit, and filed a supplemental answer. Tbe case was tried in tbe Superior Court, before Judge Sbafter, in July, 1890, and on the 4tb of August following the 'Judge filed bis findings and conclusions of law, which were, briefly, as follows : That the plaintiff and William Sharon, deceased, did not, on the 25th of August, 1880, or at any other time, consent to intermarry or become, by mutual agreement or otherwise, husband and wife ; nor did they, there- after, or at any time, live or cohabit together as bus- band and wife, or mutuall}- or otherwise assume marital duties, rights, or obligations ; that they did not, on that day or at anj^ other time, in the city aud county of Sau I UN |-'r;iucist'<), or elsewhere, joiiitlv or otherwise, make or sij^ii a (lechiratioii of marriage in writing or otherwise : unti that theiK-chiraition i>f marriage mentioned in the complaint was faJHe, e»>unterfeit«'t|, faitrieated. forgeil, and frail liileiit. and, tht-refore. null anle. tojinv propi'rtv or share in any pniperty, real or personal, i»f whi«h Wil- liam Sharon was the owner or in possessiuu, or which was then or might therej»fter In* hehl hy the executor of his last will and testjtment tin- defendant, Frederick W.Sharon. Aciordingly, judgnnnt was entered for tin* defendant. An appeal was taken from that judgment to tin- Supreme Court of California, and on the 5th of August, IHU'i, Sarah Althea Terry linving heoome in- sane pending tin* appeal, and I*. 1*. .Vshe, Es(|., having heen appointed and (pniliticd as the general guardian of her person and estati', it was (irdereil that he be Hub- stitutt'd in the oa.se. and that she subsequently appeji^- l»N him as her guanlian. In October following, the appeal was dismissed. Thus ended the legal controversy initiated by this adventur«'ss to obtain a part of the estaite of the de- ceased millionaire. I'> CON'CLrSIOX, As seen bv rem.-irks ou \y.v^i- *J.")(; above, the opinions f Mr, Justice Field, from which quotations are given, ■ r to wliich reft-n'iK-*' is inach-, constitute a small part ■ f his labors on tiu' bench. His judicial career covers manv vt-ars of service, in which he has l)eeu called upon to express his views on an infinite variety of subjects. Ho was a member of the Su]»r«'nie Court of the State "f Cidifornia for tive years and seven months, a part • f which time he was its ('hi*>f Justice, and he has been II the bench of the Supremi' Court of the United States ince May 2i), \SiVA, now (October 20, 1805) thirty-two years and tiv«' months, making in all a judicial service, in- ( biding both courts, of thirty-ei;.,dit years. If he remains II the supreme bench of the United States two years Hid one month ioniser, he will have reached a period of .•rvi<-e of tliirty-four y«ars and six months on that bench, ■i.-at.-r than that of any judj^e of that court during the p.riod of its existence. Marshall had a service there of thirty four years ami five months ; Justice Story, a service of thirty-threo yeurs ami tive months, and Justice Mc- Lean, a service of thirty-two years and twenty-nine days. Considering his excellent health and habits, it is not unreasonable to believe that Justice Field will equal if not exceed the longest in service. His opinions relate to subjects of great interest to the Government and its administration ; to its commerce, products, and welfare generally. Many of them have been published, and are bound in six octavo volumes. The opinions which are not thus bound can only be found in the reports of the Supreme Court of California and of the Supreme Court of the United States. Of those ren- dered during and after October term 1887, reference is made to the following as the most interesting and instruc- tive, viz : Powell V. Pennsylvania, rendered April 9, 1888, and reported in 127 U. S. 678, where it is decided that the State cannot lawfully prohibit the manufacture and sale of an article of food, in itself healthy and nutritious ; and that the right to take all measures for the support of life, which are innocent in themselves and do not impair the equal rights of others, is an element of that freedom which every American citizen claims as his birthright ; Mahon v. Justice, rendered May 14, 1888, and reported in 127 U. S. 700, where it is decided that there is no comity between the States by which a person held upon an indictment for a criminal offence in one State can be turned over for trial to the authorities of another State ; Indiana v. Kentucky, rendered May 19, 1890, and re- ported in 136 U. S. 479, where it is decided that the do- minion and jurisdiction of a State bounded by a river continue as they existed at the time when it was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river ; In re Ross, rendered May 25, 1891, and reported in 140 U. S. 453, where it is decided that American Consular Courts have the power to try and sentence American citizens charged with mur- der committed on board of an American ship in a foreign port where such consular tribunal is held ; Boyd v. Ne- braska, rendered Febrnarv 1, 180'J, and icpoited in 14;} U. S. 135, where it is held by Justice Field, iu a dissent- ing opinion, that the courts of the United States have no jurisdiction to determine a disputed ([ucstion as to tli(3 governorship of a State ; O'Neil v. Vermont, rendered April 4, 1892, and reported in 144 U. S. 3'23, where it is held by Mr. Justice Field, in a dissenting opinion, that the tribunal of one State has no jurisdiction to punish as an offence the removal of an article of lawful merchandise to within its borders from another State ; Barden v. North- ern Pacific E.R. Co., rendered May 26, 1894, and reported in 154 U. S. 288, where the reservation to the United States of the precious metals in grants of public land made by the United States to railroad companies for the construction of their roads is established ; The Lake Front Case of Chicago, rendered December 5, 1892, and re- ported in 146 U. S. 387, where it is decided that the doc- trine as to the dominion and sovereignty over and owner- ship of lands under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations ; Iowa v. Illinois, rendered January 3, 1893, and reported in 147 U. S. 1, where it is held that the true boundary line of navigable waters separating two States is the middle of the main channel of the dividing stream ; Virginia r. Ten- nessee, rendered April 3, 1893, and reported in 148 U. S. 503, where the boundary between those States, as estab- lished by compact between them made in 1803, is re- affirmed ; The Chinese Deportation Cases, rendered May 15, 1893, and reported in 149 U. S. 698, in which it is held by Justice Field, in a dissenting opinion, that bru- tality, iiiluimanity, and cruelty cannot be made an ele- ment in any procedure for the enforcement of the laws of the United States, and that a Chinese subject, lawfully settled in this country, cannot be forcibly deported from it except upon a conviction of a public offence providing for such deportation ; United States v. Eodgers, rendered November 20, 1893, and reported in 150 U. S. 219, where the term " high seas " is held to be applicable to the open and unenclosed waters of the Great Lakes ; Wharton v. Wise, rendered April 23, 1894, and reported in 153 U. S. 155, Avhere the right to control the taking and removal of oysters from the beds of certain dividing streams between Maryland and Virginia is considered, and the right of Virginia sustained > and The Income Tax Cases, rendered April 8, 1895, and reported in 157 U. S. 129, and on re- hearing in 158 U. S. 601, where the tax laid by the act of Congress of August, 1894, is held to be unconstitu- tional. OCTOBEE 20, 1895. 5f?^S\^^^