SOME ACCIOUNT OP THE WORK OP STEPHEN L FIELD LEGISLATOR, STATE JUDGE, AND JUDGE OF THE SUPREME COURT OF THE UNITED STATES. a WITH AN INTRODUCTORY SKETCH JOHN NORTON POMEROY, LL.D., Professor of Law in the Hastings Law Department of THE University of California. 1881. OPYEIOHT, 1882, m- S. B. Smith. (Ca.i3.+(7 INDEX. Introductory Sketch by Prof. Pomeroy ; Pagf.s. 1. Early life of Judge Field 6-13 2. His wol-k as a Legislator 13-22 3. His work as a member of the California Supreme Court 22-45 4. Sis work as a member ofthe U. S. Supreme Court 45-61 Note by the Editors 63 Judge Field as a Legislator , 3 tt. Legislation for the protection of miners in their mining claims..^ : 3-8 6, Legislation for the exemption from forced sale of tools and other personal property of debtors 8-11 (,'. General Legislation secured by him 11-14 Judge Field as a member of the Supreme Court op Cali fornia : 1. His election... 15 2, Estimate of his judicial career on that bench by Judge Baldwin 16-19 3. Unsettled condition of land titles iu the State from three causes ; a. Extentandindefinlteboundaries of Mexican grants.. 20-24 *. Occupation of the public lands by settlers in ad vance of legislation by Congress 24-25 c. Claim of the State to own the minerals in the soil.. 26-29 4. His opinions on : a. Patents for lands by the United States 30 b. Municipal corporations. 30 «. Mortgages and other subjects 33 d. A Sunday law 34-37 «v The non-receivability of Legal-Tender notes for ¦^ taxes...... ¦ 38 Judge Field as a member of the Supreme Court of the United States : Tages. 1. His appointment 39 2. His opinions on — 1. The Milligan case 40-42 2. The Cummings case 42-45 3. The Garland case 45-46 4. The McArdle case 46-50 5. The Confiscation cases 50-59 6. Cases on Pardon and Amnestj' 59-65 7. Legal-Tender cases and Confederate notes 65-86 8. The legislative power ofthe Insurgent States dnring the civil war, and the extent to which the Confed erate Government conld be regarded as a de facto government 87-96 9. Protection from military arrest and imprisonment, during the war, of citizens not in the military ser vice of the United States, where the Civil Courts were open 96-105 10. Protection to officers and soldiers of the United States army in the enemy's country during the war 105 ic. Coleman vs. Tennessee 106-112 6. 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. Thc Fourteenth Amendment and the Slaughter- 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 b. Marsh vs. Fulton County 219-221 c. Tomlinson vs. Jessup 220 d. The Delaware Railroad Tax Case..., 221-222 e. Board of Commissioners of Tippecanoe County vs. Lucas, Treasurer..... ., 222 Pages. /. Broughton vs. Peiisacola 222-223 g. U. S. vs. New Orleans 22,3-224 h. Pensacola Tel. Co. vs. Western Union Tel. Co... 225-233 i. Union Pacific E. Co. vs. United States 233-255 16. Other cases in the Supreme Court 256-258 17. Inter-state commerce 259 fl. Welton vs. Missouri 260-264 b. Sherlock vs. Ailing , , 264-268 f. County of Mobile vs. Kiraball 268-273 18. Tlie power of taxation by the General and State Governments: State tax on foreign-held bonds..... 373-283 19. The trust cliaracter of directors of corporations : Warden vs. Union Pacific K. Co 283-288 20. The use of running waters ou the public lands 288 a. Atchison vs. Peterson „ 289-294 b. Basey vs. Gallagher.. , 294-295 Cases in the Circuit Court op the United States; 1. U. S. vs. Greathouse 296-305 2. U.S. V.S. Knowles 305-309 3. U. S. vs. Smiley 309-313 4. £.i'-pa7-/c Cavanaugh on habeas corpus 314 5. Hardy vs. Harbin , , 315 6. Hall vs. Unger 321-328 7. Montgoinery vs. Beavans.. 328-335 8. United States vs. Flint, Throckmorton, and Carpentier... 335-349 9. The Eureka case 350-360 10. The municipal lands of San Francisco. The Pueblo case... 360-376 11. The legislation of California, State and municipal, against the Chinese 376-.384 ^ a. The case of Ah Fong on habeas corpus 384-394 6. Ah Kow vs. Nunan 398-405.^ 12. Other cases in the Circuit Court 409-410 The Electoral Commission of 1877: 1. The Florida case 415-430 2. The Louisiana case 430-432 3. 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 Ledger of Philadel phia 440-442 ti APPENDIX. Opinions of the Supreme Court in the Test-Oath cases, de livered by Judge Field : Pages. 1. Inthe Cummings case 445 2. Inthe Garland case 457 Remarks of Judge Field on 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, and 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 tbe Supreme Bench of California A CONOLXTSION B INTRODUCTORY SKETCH. I purpose to analyze and describe the work and its re sults of one who, to an extraordinary 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 be demonstrated by the facts which I shall produce. The subject of this memoir belongs to a remarkable family — a family which well illustrates the etfects of American civilization and institutions working upon the best New England character. Commencing their careers with no advantages except the early training of God fearing parents, and the education atforded by the coun try academy and college, the living members of the family, consisting of the brothers David Dudley Field, Cyrus West Field, Stephen .Johnson Field, and Henry Martyn Field, have all risen to distinction. Of the iirst two named brothei-s the reputation is world-wide; in fact, David Dudley Field and Cyrus W. Field are even better 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 which he has a high position and has long wielded a powerful influence as the editor of one of the leading religious papers of the country. Of David Dudley Field and Cyrus W. Field it is unnecessary to speak. The former, by his reforming measures in the systems of procedure in the courts, has rev olutionized the modes of administering justice, and placed them upon a foundation of simplicity and truth in all those nations and regions ofthe world where the EngH^hconimon law has been adopted. The latter, by his far-seeing sai?acity, untiring energy, and deep enthusiasm, has been the i'eader in accomplishing that triumph of science and commtirce combined by which all pai'ts of the world are united, time and space are annihilated, nations are made one, and tbe vast world-wide movements and transactions of business, ti'ade, and commerce are controlled. The work of the third brother, who is the subject of this sketch, has 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 brothers. Stephen ,]ohnson 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 Puri tan stock, their ancestors being among the earhest 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 become 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 lastino- im pression upon his intellectual and moral character al though its efiects upon his external life were temporary and trifling. In 1829 an elder sister married the Rev. .Jo siah Brewei-. Mr. and Mrs. Brewer, acting under the auspices of The Ladies' G-reek Association in New Haven soon afterwards sailed for the Leviint, with the intention of establishing schools in Greece for the education of fe males. They invited Stephen to accompany them. His brother, David Dudley, who as the eldest of the family took a deep and active interest in promoting the welfare of the younger members, advised his going for the pur- po.se of studying the Oriental languages, thinking that he could thereby qualify 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 Deceraber 10th, 1829, and arrived at Smyrna, February 5, 1830. Mr. Brewer there changed his original plan and established a school at Smyrna. 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 Church. Mr. and Mrs. Hill had been on a visit to Smyrna, and Mr. Hill being detained by some matters of business, Mrs. Hill returned to Athens without him. Stephen accompanied her as her escort and remained at Athens until Mr. Hill's return. During this residence in the East, Stephen learned the modem Greek so that he was able to write and to .speak it with ease, and acquired some knowledge of the French, Italian, and Turkish. But the most important and ^ lasting result of the time thus spent in the East during i the plastic period of his youth, was a moral one; and the lesson which he there learned was that of rehgious tol eration. He had been brought up as a boy in the strict est tenets of Calvinism. As he says of himself, " he had been taught to believe that the New England Puritans possessed abotit all the good there was in the rehgious world," and to look with distrust upon all the great his torical churches which they, with one sweeping condem nation, called Nominal Christians. During his Eastern life he was thrown into close contact with Roman Catholics, 10 members ofthe 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 underwent an en tire revolution ; and there 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 Williams 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 ofthe law during the Spring of 1838, in the office of his brother, David Dudley, in New 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 FemaleAcademy, and pursuing his *Stephen was in Snayrna when the dreaded plague visited the eity in the spring of 1831. Every one then avoided hia neighbor as If contagion would follow the sUght est touch. Says a writer describing the goenes : " If two men met in the street, each drew away from the other, as if contact were death. Sornetimes they hugged the walls ofthe houses, with canes 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 ¦ vessel. In the Fall of the same year Smyrna was visited with the Asiatic cholera. Hun dreds died every day from its attacks, and thousands left the eity and camped in the fields. Mr. Brewer gave his time to administering to the sick and dying. With his pockets fllled with medicines he went through the lanes and alleys of the city on his errand of mercy. Stephen, with his pockets fllled in the same way, accompa nied him in all his rounds. Commodore J. B. 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 andthe proud contempt of danger and of death evinced by an American stranger within the pestilential walls of Smyrna." 11 studies in the oflice of John Van Buren, then the Attorney- General of the State, and at the summit of his brilliant but disappointing career. On being admitted to the Bar, he was taken into partnership by his brother in New York City, which continued until the year 1848. On the breaking out of the Mexican war, and again at its close, his brother advised him to remove to California, making generous ofl'ers of pecuniary means for invest- meiit in the purchase of land, hut Stephen had a strong desire to visit Europe, and declined the proposal. He sailed for Europe in June, 1848, with the design of making an extensive tour. While in Paris, the following winter, he read the annual message of President Polk to Congress, which officially announced the discovery of gold in Cali fornia. He then felt some regrets that he had not acted upon the adviceof his brother, but nevertheless concluded to visit the most interesting parts of Europe before return ing. He did so, and returned to New York in the Fall of 1849, arriving on the 1st of October. Soon afterwards he left for Califortiia. As I do not intend to write a life of Judge Field, I shall not attempt to describe the incidents and adventures of his California 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 member 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 raanhood. In January, 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 FaU of 1850, he was elected a raember 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 m'em- ber of the body ; many of its most important and perraa 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 raost 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 terra 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, oneof his competi tors, 18,944, and the other, 19,068, so that he received a raajority 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 Justice. He remained in this high office until, in 1863, he was reraoved to the StiU 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, consisting of four Senators and four Representatives,— -of whom five were Democrats and three Republicans, and all Union men,— Judge Field was norainated by President i;5 Lincoln, and his nomination was unanimously confirmed by the Senate. He resigned the State judgeship, and took the oath of office ats judge of the United States Supreme Court on the 20th of May, 1863. His commission was issued March 10th, but he gave the following explanation of his selec- /tion of May 20th, for entering upon the duties of the of fice. It was necessary that he should postpone his retire ment frora the State Bench for a while, in order that the Court might decide the causes which had already been argued and submitted for decision, so that the parties need 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, his son had become a .Justice of the Supreme Court of the United States. Having thus mentioned the most impoi'tant 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 Cahfornia Supreme Court; and (3) as a Justice of the Supreme Court of the United States. I. — Judge FiehVs work a.s a Legislator. In order to appreciate the extent and importance of .Judge Field's legislative work during his single term of office, and the lasting efl'ect which it has produced not only upon Cahfornia, but upon other and especially the mining States, the anomalous condition of the State at that early day must be fully understood. I shaU raake no atterapt 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. I shall refer to the condition of the State so far only as relates to the law; and the special property interests which then existed. 14 The discovery of gold, as is well known, brought a rush of emigrants from all parts of the -United States, from European countries, 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 early comers, some were men of high character, intelli gence, and culture, well fitted to be leaders in the com munity. A larger number were of less education and culture, but stiU were fuU of energy, and, coming from the United States, were inclined to be law-abiding, possessing at least some of the American feehng 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, ahd professional crirainals, acknowledging no law, and defying all law. The law itself of the country was unsettled.^ The civil law, as formulated in~ Spanisli~codes" and applied to Spanish colonies, raodified 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 diff'erent from the common-law rules applicable to the sarae sub jects. The stream of immigrants which poured into the State brought along with them their own custoras, 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 15 the States of the Ohio and Mississippi Valleys. But such was not the case with California; no such homogeneity ex isted araong its people. And it was perceived by intelli gent and thoughtful raen, that the coramon law of England, adopted by the first Legislature as a rule 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 from the anomalous condition of society, partly from the efl'ect 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 where the comraon law prevailed, or had ex isted under conditions essentially difl'erent from those pre sented by California. The proprietary rights to which I refer, and which at that time surpassed in value all others within the State, were those growing out of the raining industries, the clairas of raiuers to occupy poilions of the public raineral 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 beneflcial purposes. No 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 comraon 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 diiferent opin ions prevailed with respect to the ownership of the min erals theraselves while still reraaining in the soil. Some persons raaintained that they belonged to the United States, others that they were owned by the State, but the k; conviction was universal that neither the national nor tho State government should assert any right of ownership, and that its assertion would greatly impair the develop ment of 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 raode rendered possible by their own resources, under no municipal law, and with no restraint except the danger of conflict with other and more powerful pai'ties who could wield a greater physical force. As justly observed by 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 world has prob ably never seen a similar spectacle — that of extensive gold'fields suddenly peopled by raasses oi' 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 sorae raost iraportant 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 difierent 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 raost important questions of property, to 17 priority in clairas, and the extent of ground which one person could appropriate. The rules once adopted were enforced with rigor upon all settlers in the particular carap. This voluntary, self -iraposed legislation originated ' with the American immigrants, and they were ordinarily so supei'ior in numbers that they could compel obedience by the I'dss' law-abiding foreigners. The rules they adopted governed the extent of each individual claim at the partic ular locality, and prescribed the acts necessary to constitute such an appropriation of a parcel of rainei'al land or por tion of a stream as should give the claimant a prior right against all others, the amount of work which should entitle him to continued possession and enjoyment, what should constitute an abandonment, and like fundamental condi tions to the acquisition and use of their respective claims. These rules dift'ered in their details in the various camps, but there was still a general similarity araong them all. In this condition the Legislature of 1851 was called upon to act. Mr. Field, as the result of accurate knowledge and careful study, determined upon a legislative policy. He understood the material upon which any legislation raust work; he was familiar with the miners as a class, and knew their habits and peculiarities, their comraon sense and gen eral love for fair play, coupled with strong will and occa sional violence. He saw at a glance that the Legislature could not enact any complicated system of mining law that would not interfere with the regulations which they them-^ selves had established, and under which their clairas were protected. The plan which he finally concluded to pro pose, and, if possible, procure to be adopted, was siraple, 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 coraplete success. The root idea of this plan was that the rules voluntarily im posed upon theraselves by the miners should receive the sanction of the law, and as laws should be enforced by the courts in adjudicating upon mining rights and clairas. 18 He, therefore, drew up and ofi'ered to the Legislature the following provision, which, through his advocacy, was adopted and incorporated into a general statute regulating proceedings in civil cases in'the courts of the State : " In actions respecting mining claims, proof shall be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing said claims, and such customs, usages, or regulations, when not in con fiict with tbe constitution and laws of this State, shall gov- ei-n the decision of the action." The far-sighted sagacity, expediency, and wisdom of this provision have been conclusively established by the ex perience of thirty years throughout all the Pacific Mining States and Territories. The same fundamental principle of recognizing and giving the force of law to the local cus toms and rules ofthe miners has bedn continued without change in the subsequent legislation of California, and has been incorporated into the statutes of the other Mining States. It has also been accepted by Congress; and with some modifications in detail, and especially with the addi tion of a raore certain and uniform specification as to the extent of each raining claira and the modes of location and appropriation, it has been made the basis of the laws enacted for the government of the public mineral lands. I ¦ therefore venture the opinion, and think that its correctness cannot be questioned, that no single act of creative legis lation, dealing with property rights and private interests, has exceeded this one in importance and in its effects in developing the industrial resources of the country. The causes which led to its enactment, its simple but efficient nature, and its beneficial consequences, cannot be better described than in the language of Judge Field himself, in an opinion dehvered raany years afterwards in the Su prerae Court of the United States, in the case of Jennison vs. Kirk, an extract frora which is given on pages 6, 7, and 8 of the accorapanying volume. This enactment gave the force of law to an equitable sys tem of mining and water regulations, and has been the di- 19 rect means of promoting and protecting an industry which has secured and added an untold amount tothe total wealth and resources of the country. I cannot leave this subject without a brief comment upon the social events themselves which I have been describing— events unexampled, I think, ill the history of any other people. The whole con duct of the miners, their voluntary adoption, in the ab sence of all municipal law, of regulations so just, wise, and equitable that neither the State nor the national govern ment has attempted to improve them, exhibits in the most striking manner those qualities which lie at the basis of the American character. So long as these qualities last, so long as American citizens, individually or collected into communities, possess and act upon these conservative tendencies, the liberties, safety, and perpetuity of the nation rest upon a certain and immovable foundation. In addition to tbe 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 raost of these enactments relate to the internal afi'airs of California, and have been confined in theiv operation to that common wealth, I shall merely enumerate them, with such brief description as will serve to indicate their purpose and character. Being a meraber of the Judiciary Committee, Ml'. Field's work naturaUy 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, dealing wdth 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 officers. An act passed in the subsequent session of 1853, revising and amending in its details the original statute of 1851, was also drawn up by Mr. Field, although he was not then a raeraber of the Legislature. The system then 20 planned and established in 1851, and improved 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 waa displaced by the revolutionary changes made in the new constitution of 1879-80. In connection with this legisla tion afl'ecting the judiciary, Mr. Field also drafted and procured the passage of an act concerning county sherifl's, defining all their official functions and duties; an act con cerning county recorders, creating the entire systera of registry which has since remained substantiaUy 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 the civil and criminal practice. These acts were based upon the Code of Civil Procedure, and the Code of Crirainal Procedure proposed by the New Yoi'k commis sioners, but they contained a great number of changes and additions raade necessary by the provisions of the Cali fornia constitution, and bythe peculiar social condition and habits of the people. They were by no raeans bare copies . taken frora 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 generally 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 subistance, since all their 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 feature of the legislative pohcy of California, 21 and has proved of inestimable benefit to its population — the provision exempting certain articles of property of judgment debtors from seizure and sale upon execution. Some exemption has long been found in the statute- books of every State, but it has ordinarily been small ih atfiount and value, restricted to householders, and extend ing only to a few articles of absolute necessity for the ex istence of a faraily— such as a little kitchen and bed-room furniture, bedding, clothing, and a few other similar ar ticles-. Mr. Field justly thought that the scheme of ex emption should, 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 clairas of creditors would be better subserved thereby. The fundaraental 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 efiects, and the like, should be secured in the possession and use of those things by which, as necessarj^ raeans 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 like, but the implements, wagons, and teams of a farraer, the tools of a raechanic, the instruments of a surveyor, surgeon, and dentist, the professional library of a lawyer and a physician, the articles used by the miner, the Jaborer, 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 farailiar with Judge Field, that he looks back with greater satisfaction upon the exeraption system which he '' thus ci-eated than upon any other of his legislative work. 22 It lifted a heavy load i'rom debtons, enabled Ibcm to pur sue their callings with freedom, and instead of 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 be paid. Mr. Field also drew a bill creating the Counties of Ne-- vada and Klamath. As there was much complaint at the boundary lines of several counties in the State, various bills 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 incorporated; and the bill passed. He also drew the char- tei's of Marysville, Nevada, and Monterey; and the bill regulating divorces and defining 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 araount of legis lative work, conceived, prepared, perfected, and accom plished by one man in a single session of only a few raonths in duration. The infiuence of this legislation upon the people and the raaterial prosperity of California has been simply immeasurable; but it has not been con fined to the limits of a single State; it has extended over the entire Pacific Slope, and especially through all the mining regions. II. — His ivork us a Member of the California Supreme Court. The direct eff'ects of .Judge Field's work on the State Bench, various and iraportant as it was, have, of course, been confined to the State of California; and it is little to say that he has contributed raore than any other 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 have departed frora the rules laid down by him in his decisions, or in statutes of which he was the author, it will be found that the change has been for the worse—that it has produced inconvenience and sometimes injustice. The indirect eff'ects of his work have extended through out the whole country, in two distinct forms: First. Many particular conclusions arrived at by the Court through his influence, and embodied in positive rules for the State of California, and, in some instances, incorporated into its statutory legislation, have been borrowed 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. Secondly. The general doctrines which he as a judge, or the Court under his lead, has discussed, ex pounded, and declared in judicial opinions, have exerted a powerful infiuence in aiding the decisions of other tribunals and in shaping the development of legal and equitable principles in other parts of the United States. In the exaraination which I shall now raake of his work in the State. Supreme Couit, I shall not attempt to describe in detail any causes in the decision of which he 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 the legal pi'inciples and doc trines which he determined. ! The most iraportant of these causes, opinions, controversies, and doctrines raay be found, set forth at sufficient length and fully explained, in the printed volume to which this sketch is designed as an in- troduction.\ It would be a useless expenditure of time and labor 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 corapleteness of detail I siraply 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 his State judicial work as a wbole, and to enumerate the raost iraportant legal principles and branches of the State jurisprudence which were deter mined and established by him, and by the Court thi'Ough his infiuence. In order to form any adequate conception of his judi cial character, the nature and extent of his judicial work, and the vast results which it accomphshed, it is neces sary to understand and to appreciate clearly the reraark able and wholly anomalous condition of the law at the (time when he took his seat in the court. I have already j spoken of this condition in general terras. California was (utterly unlike any ofthe other States at their early settle- I ment. From the heterogeneous mass of immigrants, every Wariety of legal notions, habits, custoras, and national sys- /tems was represented araong the population. The eom imon law was not accepted as a whole, and how far its principles should prevail as the foundation of the State jui'isprudence was not determined. The civil law, modified 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, the various settlements and collections of miners had adopted local regulations conceming mining and water privileges, which were treated as having the force and efl'ect oflaw. 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 rainerals in the soil and the Mexican titles to land grants. In fact, the Cahfornia judge was obliged to perforra his work with little help 25 from his previous knowledge of the law in the settlement of these and similar questions — questions entirely diff'er ent frora those which had been presented to other courts, American or English. He was required to frarae a State jurisprudence de noco — to create a systera out of what was at the tirae a mere chaos. Three distinct matters fur nished the material for the most important as well as vio lent controversies, involving legal questions of the utmost difficulty and raagnitude, aff'ecting pecuniary interests to an incalculable amount, and provoking raost 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 claira 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 by 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 tlie crudest and most incongruous materials for judicial construction; and that the whole scherae and organization of the governraent, and the relation of the departraents to each other, had to be adjusted by judicial interpretation, — it may well be con ceived what task even the ablest jurist would take upon himself when he assumed this office." 26 On the whole, the Cahfornia judges -vrere confronted liy a task enormous, in its difficulty and importance; wholly unprecedented in the legal and judicial history of the country; with little aid from the doctrines of jurispru dence prevaihng 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 nurabers of persons to engage in the raost 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 serablance of legal sanction. These persons were often infiuential, and could control the news papers and other organs of teraporary 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 raerabers of the Court were raade the objects of virulent abuse, the extent and fierceness of which we can hardly realize at the present day. It is true, that in the course of tirae, the truth gradually asserted its power, the public mind appreciated the justice and integ rity of the decisions, perceived their wisdom, and acknowl edged their beneficial results. Notwithstanding 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 these persistent libels. 27 Such being the problem presented to the California Su preme 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 right 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 sorae of its raembers were raen of great ability and learn ing, and would have adde^ to the strength of any Court, sorae 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 habits, had subjected themselves to un pleasant coraraent, and the Court had thus suffered in public estimation. It would subserve no useful purpose to enter into any particulars. The distinguished merabers of the Court of those days now living are 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 which no one was raore forcibly irapressed than themselves. -^ The most important work of Judge Field was done j 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. Sorae of their opinions were adrairable specimens of judicial reasoning. Yet it is adraitted by aU who were personally acquainted, as contemporaries and participants, with the judicial history of the State, and it is a truth patent to all who have obtained their only knowledge from the reports of decisions during his term of office, that he assumed and maintained the position of leadership. In the fundamental principles adopted by the Court, in the 28 doctrines which it announced, in the whole system which it constructed for the adjustment of the great questions hereinbefore described, his controlling 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, deaUng with matters confined to California, or, at most, to the Pacific Coast. But in its dealings with mat ters of general interest, with t^e 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 coraparatively 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. Ifs 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 lines upon all the creations of his official labors. He has stamped him self — his intellectual and moral features — deeply into all the work which he has done. From ray own personal acquaintance with hira, but chiefly from a careful study * About four years ago I was told by a gentleman, vi'ho for many years had been employed by a leading law publishing house of Boston as its travelling agent through 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 ehanged from the New York to the California reports. Everywhere through the "Western and Northwestern 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 his important judgments rendered both while a member of the State Court, and after his transfer to the National Judiciary, I have arrived at the following 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 embraces among others the names of Hardwicke, Mansfield, Cottenham, and Cock burn, in England, and MarshaU, Kent, Story, Shaw, and Denio, in America. In the first and lowest place, he possesses an araple 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 Parke, or of the intricjite 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 rather 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 i 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, l The exigencies of his position required hira to investigate 30 the Spanish-Mexican Codes, which furnished the authori tative rules concerning " pueblos," with all the municipal and proprietary rights fiowing 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 afi'orded very few if any analogies. It is enough to say that his learning, his inteUectual 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 raere learning he is undoubtedly surpassed by raany judges who are not only otherwise his inferiors, but who have never even at tained to any coraparative distinction in their own States. But in the high intellectual pqwer, which I have attempted to describe, the power to analyze, to sift, to select, to ap propriate truths, principles, and doctrines, and to assimilate them with the jurisprudence alreadj' established, and above all, to create where there was no material from which to borrow, he has been equalled by few, and, in my opinion, surpassed by none ofthe raodern American judges. ' The second and much more important element which 'l shall notice, is his devotion to principle; — that quality of intellect which leads him, on all judicial occasions, to seek for, apprehend, and appreciate principles, rather than to rest satisfied with raere rules, although sustained by prece- Ident, and to apply firraly these principles where found in |ill their relations and consequences ; — to place his deci sions upon the solid basis of fundamental and universal principles, rather than upon arbitrary dogmas. This qual ity gives a most raai'ked 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. His adjudications generallv will 31 thus be found related to each other, harmonious, corre-\ sponding parts of one completed system. This method of adhering to principle as the sure and constant guide in ascertaining, interpreting, and applying the law, is the imraediate and efficient cause of that raost reraarkable consistency which runs through all his judicial utterances./ I shall have occasion to speak more in detail of this special feature of consistency, when describing his judgments upon questions of constitutional law ; and although it appears, perhaps in the raost striking raanner, in that class of cases, it is still a distinguishing mai'k of all his work. The power of discovering, apprehending, and ap plying principles, is the highest intellectual faculty of the ideal judge ; it takes the place of, and is universally supe rior to, any araount of raere learning ; it is the very essence of the best learning which can be employed in the judicial station. In fact great learning alone, with 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 their legitimate consequences, and of applying thera in the deduction of particular rules, which Judge Field possesses in such 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 I'ights, etc.; and this class of cases undoubtedly required for their decision the greatest amount of original investigation, tracing of ob scure analogies, and creative power, — an expenditure of intellectual force which can hardly be appreciated by the 32 profession in other parts of the country who are unfamihar with the intricate questions involved. On the other hand, many of his opinions deal with subjects of universal in- tel-est, as for example, the powers and Uabilities of munic ipal and of private corporations, the nature of mortgages, the validity of Sunday laws, etc. These judgments have uniformly 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 by 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 poioer. .By this designation I mean his ability in developing, enlarg ing, and improving the law, by additions of new material, whether this material be borrowed from foreign source8,or created by raeans 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 raay co-exist in the same individual, or the first may be possessed in a high degree without the other. The first deals with the jurisprudence as it has already been estab lished, investigating, exaraining, 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 coramon- 33 law dogmas, no matter how firmly settled upon authority, which had become outgrown, obsolete, and unfitted for the present condition of society, and in the substitution of more just, consistent, and practical doctrines adapted to the needs of our own country and people. I merely m.eu- tion, as sufficient examples of this class, his decisions upon the nature and effect of mortgages, 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 jurisprudence which should be 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 iu California but unknown in nearly all the other States. Illustrations of the first kind may be found in his series of most iraportant decisions concerning " pueblos " and the municipal and proprietary rights belonging to them; and concerning Mexican land-grantA, in whicli the rules were borrowed frorn the Spanish-Mexican codes; and in those concern ing the occupation of public lands and mining and water rights. A most illustrative exaraple of the other kind is seen in his decisions relating to the coraraunity property of husband and wife, — an incident of the raarriage 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 apprehend and apply princi- 34 pies is the highest intellectual quality, so is a true fearless-. ness the highest morcd 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 of which all their passions, prejudices, and selfish motives were fnlly aroused, and often were raging in the fiercest manner; and no other judge has more fi'e- quently and faithfully discharged his sacred duty of de ciding according to his own enlightened convictions of law and justice, in complete oblivion of all external forces, and in absolute fearlessness of the consequences. He has neither courted personal popularity nor shrunk from unpopularity by means of his decisions. He could well apply to himself the meraorable and noble lan guage which Lord Mansfield used frora the Bench when made the object of a violent clamor on account of his de cisions: " I will do ray dut}' unawed. What am I 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 ray conscience tells rae 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 rae the whole ar tillery of libels, — all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say, M'ith a great magistrate, upon an occasion and under circumstances not unlike, ' Ego hoc animo seraper fui, ut invidiam virtute partam, gloriara, non invidiam, putarera.' " No friend of -Judge Field can estimate his intellectual and raoral fearlessness too highly; no enemy can deny or ever has denied that he possessed it. He has repeatedly 85 encountered, and been compeUed to endure, the bitter hos tility of extreme partisans belonging to the raost opposite schools of opinion ; of extreme Republicans and extreme Democrats; of those who maintain the dogma of State sov ereignty, and of those who assert the absolute legislative power of the national government; of ignorant and prej udiced masses, and of scheming speculators who would dis regard all law and right in order to accomplish their pur poses. All these outbursts of opposition have, however, died away; the justice and wisdom, as well as the law, of his decisions are vindicated. That true popularity has succeeded among all intelligent persons', which, in the words of Lord Mansfield, " never fails to do justice to the pursuit of noble ends by noble means." Frora tbe very coraraenceraent of his career on the State Bench, and through all the following years, opportunities have fre quently been presented to him, in the regular discharge of his official functions, by which, without any plain surren der of right, any obvious transgression of duty, by the mere adoption of a difl'erent line of arguraent leading to a diff'erent conclusion, — and even sometimes vvhen that line of argument and that conclusion were, upon a surface view, correct, and were approved by a majority of the legal pro fession, — opportunities, I say, by which, in this manner, he might have obtained an iraraediate and even an enthusias tic populadiyi 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 ever infiuenced by either of these considerations;! on no occasion did he ever swerve from his duty and sur render his own conscience and enhghtened 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 pubhc lands, con- 36 cerning the State ownership of gold and silver, and the claims of miners to enter upon all lands, private 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, will exhibit in the clearest manner the quality of recti tude and fearlessness which is such a distinctive eleraent of his character.* In raany of the decisions rendered in the United States Suprerae Court, indirectly growing out of the civU war, and directly out of congressional legisla tion enacted in consequence of the war, including those deahng with the validity of test-oaths, the extent and Umi tations of martial law, the trial of civilians by raiUtary tribunals, the suspension of the. writ of habeas corpus, and sirailar questions affecting the very 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 other in stances, there is one of later occurrence which is still more illustrative. It maybe affirmed, I think, 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 Ireudering a decision in the now meraorable Chinese Queue ICase, which, however righteous and in accordance with ;he fundaraental principles of constitutional law, awoke I storm of fierce opposition and hatred among all the lowest and most ignorant classes of the political party vith which he is connected. Judge Field lost — nay, sacri- iced — 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 raasses of California, prevented him * See " Personal Eeminiscences of Early Days in California," pages 137 to 171, inclusive. 37 from obtaining the support of his own State, and thus ren dered his noraination by the National Convention impossi ble. As a moderate Republican, knowing the opinions of that large division of the party commonly called " Liberal Republicans," I do not hesitate to express the strong con viction that if Judge Field had received the nomination frora the Democratic party, he would certainly have been elected. The decision as to the validity of a miserable city ordinance requiring the queues of Chinese prisoners to be cut off, lost him the Deraocratic support of California. He has, instead, the approval of his own judgraent, and of all intelligent, thoughtful men throughout the country. There are other traits of his inteUectual character and of his work, in themselves worthy of raention, such as his diligence, his capacity for continued labor, his rapidity of execution, and particularly his clear and accu rate style of literaiy coraposition, which renders sorae of his raore carefully prepared opinions models of judicial argumentation; but I pass thera by without further no tice as not being distinctive, since they are shared with hira in an equal and sometiraes 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 raember of the Suprerae Court of California. This raust 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 volurae. 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 raost im portant judicial work. They naturally fall into two main divisions: (1) Those which deal with comraon law and equitable doctrines of general interest to the profession of all the States; and (2) Those which deal with raere local matters, of which the interest is chiefly confined to the profession and people of California and the other Pacific States. 38 1. Matlv-s of ((fienmd -hder est. —A.mo\)g tho most import ant of these topics were the following. The powers and liabilities of Municipal Corporations. Certain transactions entered into and acts done by the governing body of San Francisco gave rise to abitter judicial controversy extend ing through several litigations, in which 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 habilities of Municipal Corpora tions, in the absence of express charter or other statutory provisions defining and hmiting 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 especiallj^ 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 ofthe old common-law notions concerning the nature and effect of the mortgage, and adopted the rational and cnnsistent equitable theory as the single systera which should deterraine all private relations, and should preyaij 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 raere lien, and not a. jus ad rem nor a, jus in re, have not been excelled in their clearness of statement and cogency of argument by those of any other Court which has maintained the sarae view, and they have undoubtedly dpne much to promote its ac ceptance in other States.f No- opinions upon the subject * McCraken vs. San Francisco, 16 Cal., 591 ; Grogan vs. The Same, 18 Cal., 608 ; Pimental vs. The Same, 21 Cal., 359 ; Argenti vs. The Same, 16 Cal., 282 ; Zottmau vs. The Same, 20 Cal., 96. — See the printed volume, pp. 30-32. t McMillan vs. Richards, 9 Cal., 365; Nagle vs. Macy, 9 Cal. 426' Johnson vs. Sherman, 15 Cal., 287 ; Goodenow vs. Ewer, 16 Cal. 461. See printed vol., pp. 32, 33. 39 are raore instructive for the student in all parts of the country. Sundry L'l.ivs. — Under a constitutional provision sub stantially the same as that in most other States, a ma jority of the Supreme Court pronounced unconstitutional and void a statute which siraply prohibited the keeping open of business places (with certain specified exceptions) and the selling of goods, or exposing thera for sale, on Sunday. It will be noticed that this statute was far less stringent than the type of sirailar legislation prevailing in most of the States. A majoi-ity of the Court saw fit to re pudiate the authority of the nuraerous decided cases unaniraously sustaining the validity of such a law. The prevailing opinion professed to uphold religious freedom, and delared all statutes for the preservation of quiet and good order on Sunday to be .sectarian.* Judge Field firraly and raost erapbatically dissented. His dissenting opinion is an exhaustive examination and triumphant settleraent of all the questions involved, and raost ett'ectually exposes the weak positions of the raajority. It vindicates both the validity and the wisdora of such statutes, shows their uni-- versal approval, and deraonstrates their secure foundation, not as intended for the purpose of directly supporting re ligion, but for the purpose of promoting and preserv ing good order araong the entire community. This opin ion was received with the utmost satisfaction by all intelli gent and thoughtful persons, not only in California, but throughout the country. At a later day its reasonings and its conclusions were adopted by the Court in a subsequent case, and the forraer decision was overruled.f Legal-tender aet and taxes.— ^oon after the passage of the Legal-tender act by Congress the question arose, of vital importance not only to California, but to every other State, whether it applied to the payment of State taxes. It was held, in an opinion delivered by Judge Field, that the * Ex-parte Newman, 9 Cal., 502. — See printed vol., pp. 34-37. t Ex-parte Andrews, 18 Cal., 680. 40 clause making treasury notes " a legal tender in payment of all debts, private and pubUc," is confined in its opera tions to obligations for the payment of money founded upon contract, and does not extend to taxes imposed un der State authority; that a debt is a sum of money due by contract, express or implied, while a tax is a charge upon persons or property to raise money for public purposes, and operates in invitum.* The doctrine of this case was approved and followed by the Supreme Court of the United States.f Besides, the power of taxation is one of the highest functions of government, given to the indi vidual States as well as to the nation, and so far as it is conferred upon, and may be exercised by the States, it is .beyond the scope of congressional interference. . State taxes are, therefore, payable in such kind of money as State laws shall prescribe, entirely unaffected by the so- called " Legal-tender act." 2. Matters of a local interest. — The long series of decis ions pronounced by Judge Field, dealing with matters of local interest to the Pacific Slope, discuss legal questions of the greatest magnitude and difficulty, affecting property of enorraous value, and determine, in fact, the whole course of private indtlstries in the Mining States. The vast araount of research, labor, learning, and intellectual force which these cases required, cannot be appreciated by those whose only knowledge of them has been obtained from the volumes of Reports. Nothing at all analogous to them can be found in the modern judicial records of the English Bench. The judges of a new, half-settled Ameriijan State were called upon to decide controversies far surpassing in the number and difficulty of the legal questions presented, and in the pecuniary interests at stake, anything which the present generation has brought before the House of * Perry vs. Washburn, 20 Cal., 318. t Lane County vs. Oregon, 7 Wall., 71, per C. J. ChiBe, ti most able ex position of the fundamental theory of our national government and of the relations between the nation and the States. — See printed vol. p. 38. 41 Lords, or the Privy Council, (U- other highest trUiunal of the British Empire; and raany of these decisions themselves would refiect cred'it upon the ablest of the English judic iary. A detailed account of these controversies might, in the hands ofa graphic writer, be raade a narrative of in tense and highly dramatic interest to the general as well as to the professional reader. Such a narrative, however, I cannot attempt, I can only enumerate the most iraport ant questions .which were finally settled hy these succes sive judicial contests, and niust refer to the pages of the printed volume for all the particulars. It is enough to say that these questions, in their universality, their variety, and their far-reaching consequences, lay at the very bot tora of the social oi'ganization in California; upon them depended the titles to a large portions of the land.s; they determined the success or tbe destruction of the great mining and agricultural industries of the whole southern coast west of the Rocky Mountains. The following is a bare statement of the most important which were settled in greater part, even if not entirely, through .Judge Field's infiuence, and the adoption of his views by the Court. 1. The Mexican governmental lartd- grunts, embracing as col lateral or subordinate incidents, the, validity of their titles, and the system of legal rules by which they were to be established and governed; the extent, location, and bound aries of the tracts included in the grants; the rights of the original grantees or of their assigns; and the conflict ing rights and claims of the actual occupants and of ndja- cent settlers.* 2. The occupation of the United Stutcs public lands by set tlers, before any raeasures had been adopted by the gov ernment regulating their sale or use, that is, before the lands were surveyed and brought under the general pubhc * Ferris vs. Coover, 10 Cal., 589; CornwaU vs. Culver, 16 Cal, 429; Mahoney vs. Van Winkle, 21 Cal., 576-580. See the printed volume, pp. 20-24; and also Judge Field's "Personal Eeminiscences of Early Days in California,"' pp. 138-143. 42 land system. This erabraced, as incidental and auxUiary questions, the mode of treating such settlers, whether they were to be regarded and dealt with as unlawful intruders and trespassers ; the nature and extent ofthe usufructuary interest which each individual settler obtained in the parcel of land appropriated by hira from his actual occu pation, and his rights thereto as against all the world ex cept the United States; in considering which questions the Court boldly disregarded the settled common-law rules concerning the necessity of a legal title in order to maintain ejectment. It also erabraced a consideration of the rights of such settlers to mines on the lands occupied by them, and to appropriate water for irrigation and other purposes, and a great number of simUar ancillary questions growing out ofthe altogether anomalous condition of the country, and the absence of legislation by Congress.* 3. The ownership of the gold and .silver in the soil, and the claira of the State to such ownership. In one or two early cases the Suprerae Court had, without fully examining the reasons originally given for the doctrine or their applica bility to our own country, adopted the ancient comraon- law dogma that the ownership of gold and silver con tained in all lands within the State was vested in the State itself by virtue of its sovereignty. t The miners soon took advantage of this doctrine. Claiming to act under an authority derived frora a State statute, and even without any such legislative permission, they asserted the right to carry on their mining, not only i.n the public lands of the United States, but also in all land which had been granted, either by Mexico, or by the United States, or by the State, to privat-e owners. They even asserted this right with respect to private lands jvhich were actually occupied by their owners, and were used by thera for other pur- * Coryell vs. Cain, 16 Cal., 572. t Hicks vs. Bell, 3 Cal., 227 ; Stoakes vs. Barrett, 5 Cal., 37. — See the printed volume, pp, 26, 27 ; and " Early Days in California," pp. 145-149. 48 poses than mining, for agriculture, for grazing, or for residence. This claim was not an empty theory; it was carried into actual operation. The miners entered upon private lands at will, used and occupied for farms, cattle ranches, vineyards, or any other similar purpose, in search for gold and silver, heaving up the soil, and sometiraes destroying iraproveraents and doing great damage.* In this condition of things the Supreme Court nobly per forraed its duty. With the certainty of encountering the hostility of large raasses of prejudiced and lawless men. Judge Field, as the organ of the Court, swept away the old common-law dogma; demonstrated tbe absurdity of the reasoning upon which it had originally been rested,. and showed its inapplicabiUty to the institutions and social condition of this country. His opinions, which are raost able specimens of judicial reasoning, established the doc- ti-ine that the gold and silver in the soil belong to the owner of it, and that the precious metals are entirely unconnected with whatever of sovereignty inheres in the State. As the United States originally owned the soil, so it owned all the gold and silver contained within the same ; and this ownership passed to and vested in the grantees ofthe United States and their assigns. No more important decisions were raade by the Court while Judge Field was a raeraber of it, and although they aroused temporary opposition, they have long been acknowledged as wise and just as well as legally correct. t 4. United States patents for fa^^(:?.s, involving their peculiar force and effect, the rights which they confer, the legal estate of the patentees; the equitable estates which may * This was specially so on the Mariposa and Fernandez grants. Hen shaw vs. Clark, 14 Cal., 463 ; Biddle-Boggs vs. Merced Mining Co., Id., 379. t Biddle-Boggs vs. Merced Mining Co., 14 Cal., 373-380 ; Fremont vs. Fowler, and Moore vs. Smaw, 17 Cal., 200. See the printed vol,, pp. 26-29; " Early Days in California,"' pp. 145- 153. 44 exist either under or in opposition to thera, and a number of other incidents.* 5. The Puebio of San Francisco, and the proprietary 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 by hira as United States judge, presiding in the U. S. Circuit Court. He there rendered a final' decree estabhshing the proprietary 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 community 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 iraportance, 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 Septeraber 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 ; Tesohemacker 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 Cil., 216-225 ; Pix ley vs. Huggins, 15 Cdl., 128 ; Yan Maren vs. Johnson, Id,, 308 ; Scott vs. Ward, 13 Id., 458, 45 contracts of tbe State for the support and labor ofits con victs; the power of the Courts to compel by mandamus officers of the State to do their duty; confiicting rights of miners to the use of the water of streams in the moun tains for the purpose of raining; the construction of wUls; the distinction between mortgages and deeds of trust, and raany other matters.* in. — His ivork as a Member of the United States Supreme Court. It is upon his character as a constitutional lawyer, as an authoritative interpreter of the National Constitution, that Judge Field's reputation as a judge of the United States Supreme Court must ultimately and mainly rest. .Legal questions of a countless number and variety, affecting private rights, and involving every department of juris prudence — comraon law and equity, adrairalty, maritime and prize law, patent law and copyright, the civil law as embodied in Louisiana and Mexican codes, statutes of Congress and of State Legislatures, everything except pure matters of probate — may come before that Court for adjudication. Probably no other single tribunal in tbe world is called upon to exercise a jurisdiction extending over so many diff'erent subjects, and demanding frora its judges such a variety of legal knowledge. But the high est power of the Court, that incident of transcendent im portance which elevates it far above any other judicial ti'ibunal, is its authority as a final arbiter in all controver sies depending upon a construction of the United States Constitution, in the exercise of which exalted function, as the final interpreter of the organic law, it determines * 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 ; Koch vs. Briggs, 14 Id., 256 ; Noe vs. Card, 14 Id., 577 ; Norris vs. Harris, 15 Id., 226 ; State of California vs. McCauley, 15 Id., 429 ; HoUi- day vs. Frisbie, 15 Id., 630; McCauley vs. Brooks, 16 Id., 12; Koppikus vs. State Capital Commissioners, 16 Id., 249 ; Brumagim vs. Tillinghast, 16 Id., 266 ; Doll vs. Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. 46 the bounds beyond which neither the national nor the State governments may rightfully pass. It is the unique feature of our civil polity, the eleraent which distinguishes our pohtical institutions from all others, the crowning con ception of our systera, the very keystone ofthe vast arch, upon which depend the safety and permanence of the whole fabric, that the extent and limits of the legislative and executive powers, under the Constitution, both of the nation and of tVie individual States, are judicially deter mined by a body completely independent of aU other de partments, conservative in its essential nature and ten dencies, and inferior to no authority except the deliberate organic will of the people expressed through the elective franchise. This special function of the Supreme Court was from the outset denied by a small school of impracti cable theorists, and during the whole period of our history it has been the object of bitter hostility from those by whom the very conception of one united people is re jected. It has, however, been uniformly exercised from the beginning of Washington's administration down to the present day; it has grown in the public favor, and it has finally been accepted by the overwhelming weight of popular approval as one of the fundamental axioms of our governmental systera. With the vast raajority of in telligent raen in all parties, the well-considered decisions of the Suprerae Court are regarded as authoritatively set tling disputed questions of power and right, for the gov ernraent as well as for individuals, and alike for the gov ernraent of the nation and of the separate States. As a student of political science, and especially' of our own public law, I am profoundly convinced that this peculiar function of the National Judiciary, as the final interpreter of the organic law, is the very corner-stone upon which rest all our institutions, and the permanence of our pres ent organization into nation and States, each with its own powers, and as a consequence the perpetuation of our civil and political hberties. 47 No more need be said to show that the character of a United States judge as a constitutional lawyer, is a raatter of the highest importance. It is chiefiy in this character that I shall examine the work of Judge Field. In such exam ination I shall follow the method already adopted in the preceding subdivision. There wUl be no unnecessary rep etition of matter contained in the accompanying selection from his decisions and opinions. As a prelude or intro duction to that selection, I shall portray his general char acter as a constitutional lawyer; state the fundamental principles of constitutional interpretation which he adopted and promulgated, describe the raost important of his judi cial work by which those principles have been carried into operation, and mention some of the leading cases in which the results of that work have been embodied. For fuller details and particulars, reference must be had to the books of reports and to the volume of selections annexed. Within the past year or two, and especially since certain recent decisions from which he dissented, the charge has been repeatedly made by some political newspapers, whose extreme partisanship is only equalled by their absolute ignorance of constitutional law, that Judge Field is an advocate of the so-called "State-sovereignty" theory, and that he denies the validity of, and is endeavoring to judicially break down, the XlVth Amendment of the Constitution. Nothing can be raore absurdly false. The "State-sovereignty" theory, as I understand it, denies in toto that the National Judiciary can authoritatively pass upon the validity of State legislation; and asserts in the raost positive manner that the power to determine finaUy the validity of State laws and of State governmental acts, be longs exclusively to each State — i. e., to the judiciary thereof — by itself; and insists that the construction of all provisions of the United States Constitution imposing re strictions upon the State governments, is a judicial func tion irrevocably possessed by each State, with which the United States or its judiciary cannot interfere. In at least 48 one-half the cases involving questions of constitutional law decided by Judge Field, he has reviewed State legis lation, inquired into its vahdity, and pronounced it void, asserting in the strongest raanner the revisory power thus exercised bythe Suprerae Court. Even as a single judge,^ sitting in the Circuit Court, he has annuUed the statutes of a State. In the face of these facts he is foolishly charged with being a judicial supporter of the " State-sovereignty " dograa, as above defined, by editors who ai-e ignorant of the very raeaning of the term. While in the Supreme Court of Cahfornia he had occa sion, in a very important and carefully-considered opinion, to explain the true meaning of the wf)rd "sovereignty," as it is apphed to individual States under our political sys tem, and to show that it is only in a partial and qualified sense that the word can with propriety be used to desig nate any attribute belonging to a State. In the great case of Fremont vs. Fowler,* he thus describes the sovereignty of a State: " Sovereignty is a term used to express the supreme po litical 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 publie uses — ^termed the right of eminent do main — 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 exer cised through the joint action of their federal and State governments. To the federal government is delegated the exercise of certain rights and powers of sovereignty, and with respect to sovereignty, rights and powers are synon ymous terras; and the exercise of all other rights of sov ereignty, except as expressly prohibited, is reserved to the people of the respective States, or vested by thera in their local governraents. When we say, therefore, that a State of the Union is sovereign, we only mean that she possesses supreme political authority, except as to those matters ovei' * 17 Cal., 200. 49 which such authority is delegated to the federal govern ment, or prohibited to the States; in other words, that she possesses all the rights and powers essential to the exist ence of an individual poUtical organization, except as they arewithdrawn by the provisions of the Constitution of the United States. To the existence of this political authority of the State — this qucdijied .sovereignty, or any part of it-^ tie ownership of the minerals of gold and silver found within ber limits is in no way essential." This extract sliows in the clearest possible light that .Judge Field repudiates the notion of an absolute sover eignty, such as is the essential attribute of a completely independent political society, being vested in each indi vidual State; which is the very fundamental conception of the " State-sovereignty " theory; on the contrary, he as serts the true principle, — the very central thought of all correct interpretation, — thatthe absolute sovereignty is vested in the people ; that a part of its sovereign powers is exercised by the federal government and a part by each State governraent; and that the sovereignty thus exercised by a State is partial and qualified. To this conception of the relations between the divided sovereignty, wielded in. part h-y the central government and in part by the States, he has adhered during his whole judicial career. Passing now to an affirmative view of his work as a cfin- stitutional interpreter, I think that in no other department j of the law has the element of consistency, desci'ibed in a preceding paragraph, been displayed in a raore reraark- ; able raanner than in this". \H.e has adopted clear and defi- I nite principles of constitutional law, applicable both to the nation and to the State, to the powers conferred upon the governraent of each, and to the limitation imposed upon those powers, and to this system, whether it be correct or not, he has unquestionably adhered with absolute con sistency thi'ough tbe entire course of his numerous decis ions. No external infiuence has been able to sway him from those settled convictions.. When the Court hascon- formed to and announced those principles, he has agreed 50 with it, and has often been its mouth-piece in making^ the decision. Whenever the majority of the Court, as has soraetimes been the case, has teraporarily departed from those principles on either side, whether in the direction of sustaining State legislation or of sustaining legislation of Congress, he has dissented. It should be especially re marked, for the , benefit of those who charge hira with being a supporter of the " State-sovereignty theory," so called, that some of his ablest, best considered, and most forcible dissents have been from decisions of the Court which upheld State statutes transgressing, in his opinion, the restrictions either of the original Constitution or of the XlVth Amendraent. The fundamental principles which Judge Field has thus adopted, — the system of constitutional interpretation which as a whole he has consistently maintained, — are, in my opinion, correct. They are substantially the sarae broad, comprehensive, liberal doctrines which were promulgated, and enforced with a cogency of reasoning absolutely crush ing, by the great Chief Justice Marshall, and supported by such judges as Washington, Story, Wayne, and Catron. Whether he has correctly applied thera in every individ ual case coraing before hira as a raeraber of the Court, or whether he may not sometimes have erred in such appli cation, are questions concerning which there may, per haps, be a difference of opinion even araong those who entirely agree with hira in his general system. These principles which thus underlie all his work in interpreting the Constitution, and to which he has so con sistently adhered, whether acting with the Court or dis senting from it, are, I think, the following: (1) The polit ical sovereignty and absolute supremacy of the United States and of its government, with respect to all matters within the scope of its legitimate functions, embracing all the legislative, executive, and judicial powers conferred upon it by the Constitution, and especially the power con ferred upon its judiciary, of authoritatively and finally in- 51 terpreting the organic law, and determining the nature and extent of all its grants and limitations of power. (2) Corresponding qualified political sovereignty exercised by the individual States, and their exclusive powers, free from federal interference with respect to all matters coraing within the scope of their legitiraate functions, which in clude all powers not conferred upon the general govern-; raent, or not reserved by the people themselves, incapable, therefore, of being exercised by either government, or not expressly prohibited to the States. (3) The recognition J preservation, and maintenance, firra and inviolate, of all the limitations and restrictions, whether expressed or necessarily implied, imposed upon the governments, botl of the United States and of the individual States, by th original Constitution or by the amendments thereto. (4) The upholding and enforcement, as a matter of speciajl moment, of all those particular restrictions upon the govt ernmental action, both of the United States and of the sev eral States, contained in the original Constitution and in the amendments, which are intended directly to protect the private rights of life, liberty, and property, and, in factj that entire body of private rights which constitute "civil hberty." ! These principles may be still further generahzed, and are summed up in two ideas: First, the preservation from' every intei'ference or invasion by each other, of all the powers and functions allotted to the national government and the State governraents; and seco??d, the perfect security and protection of private rights frora all encroach raentsi either by the United States or by the individual Statesj These two ideas he has steadily kept in view and has raade the basis of his decisions. He has demonstrated that a constant and firm maintenance of the powers justly be longing to the federal governraent, is not incompatible with an equally firm upholding of the powers entrusted to the States, with an undeviating adherence to the sacred doctrine of local self-governraent, and with zealous pro- tection of private rights, because all, in fact, rest upon the same foundation. , My purpose, in the reraaining portion of this sketch, is to show that Judge Field has uniforraly and consistently asserted and applied these fundamental principles through his whole course of decisions upon the United States Bench. If I shall refer with more detail to decisions in which he has asserted the power and supremacy of the United States Government, it is because the other side of his system, and the cases in which he sustains the State authority and the civil rights of persons, are fully set forth in the accompany ing volume. Judge Field's opinions concerning the essential and his* torical nationality of the United States; the nature ofthe Union ; its relations with the States ; the indestructible char acter, both of the Union and the States, as an organization which not only exists under the Constitution, but existed prior to it, may be learned from the cases of Lane Co. vs. Oregon and Texas vs. White, in 7 Wallace. Iti these cases the Court was called upon to examine more profoundly and to declare more correctly, than had ever before been done by Marshall, Story, Taney, and the whole line of former judges, the true nature of the relations of the United States and of the States with each other, and of the peculiar or ganization resulting from their union. The Court for the first time found a solid basis, historical as well as logical, on. which to rest the inherent existence and supremacy ofthe United States. Placing the Union upon a sure foundation, it also defined the status of the States, and asserted their; necessary existence and peculiar rights in a manner no lessj clear and certain. The Court by these judgraents estab lished the United States and the States upon exactly thc same footing; whatever weakens the one weakens the other; whoever denies the historic origin of the one, denies the same of the other. As we have in this theory the greatest., security for the nation, we have also the greatest security for the several States. The opinions in these two cases 5;! were dehvered by Mr. Justice Chase, and were concurred in by Judge Field and others who coraposed the majority rendering the decision. It is undoubtedly true, as a general rule, that concurring judges are not necessarily required to agree with all of the views expressed in the prevailing opinion of the Court. While they must agree with its con clusions, there may be modes of reasoning, forms of argu ment, personal notions of the one writing the opinion, to which 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. White. Again, the conclusions reached, and concurred in by the majority, are such asi necessarily required an assent to the whole course of reasoning contained in thp opinions. It would be im possible to reject any substantial position taken by the Chief .Justice, or any particular argument in his chain of reasoning, without at the same tirae rejecting the conclu sions which he finally reaches, and which forra the basis of the judgment. To this I may add the testiraony of Chief Justice Chase himself. In a letter written to me shortly after the decision of Texas vs. White was an nounced, he says, concernipg the opinion in that case : " That opinion was very much discussed, especially by the judges who concurred in it, and may, I think, 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 rebellion, and of the restor ation of national relations interrupted by civil war." It may, therefore, be considered as certain that these two cases express the deliberate 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 profound judgments. 54 The same high view concerning the supremacy of the United States Government, within the field of its dele gated powers, and concerning the limitations placed upon State action, is exhibited in his interpretation of the XlVth Amendment — that crowning and consummate provision of the organic law. So far from the 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 constructioii [Which renders it, as was intended, the most perfect safe guard against the encroachments of State governmental action upon the private civU rights of all persons. The first cases involving the amendraent which came before the Court- were the Slaughter-House Cases. — (16 Wall., 36.) The majority of the Court, in an opinion bj'^ Mr. Jus- tire Miller,* put upon the amendraent a most narrow in terpretation, which, would utterly destroy its value as a protection of private civil rights. They adopted as their fundamental proposition the strange notion that the amend- nient was confined in its operations to neg)"oes. They held jthat the Xlllth, XlVth, and XVth Araendments were keps in the accomplishment of one final object — the abo- ition of slavery and the perfect freedora and protection of the negro race. They declared that, although ex pressed in general terras, the, primary design and main purport of the XIYth Amendment was to confirm tbe status of negroes as citizens, and to prevent the encroach ments of State laws which would discriminate againfet them. This was all the raeaning which the raajority 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 alraost all limi tations upon the general government, aud 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„l 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. unjust action of the local governraent. Mr. Ju.stice Mil ler went so far, while commenting upon the laat and most sweeping provision — " nor shall any State deny to any person within its jurisdiction the equal protection ofthe laws " — as to say of it: " We doubt very much whether any action of a State, not directed by way of discriraina tion against the negroes as a class, or on account of their race, will ever be held,to come within the province of this provision." Four judges dissented from this narrow con struction, in a most powerful opinion written by -Judge! Field. He asserted in the strongest terms the universality!, ofthe amendraent, its application to all classes of persons.'! He denied that its operation was confined to the negroes. , It afi'orded the same protection to all persons against local ' oppressive laws; it secured to all persons the equal pro tection of the laws. In a word, the XlVth Araendment : was enacted to supply a great want, which had existed ; since the foundation of the government. While the -' States were from the outset forbidden to pass ex post facto \ laws, or bills of attainder, or laws impairing the obligation ; of contracts, they might in many other ways invade thej rights of citizens, and the national courts could grant noj relief. This beneficial araendraent throws the protection ofthe national courts around the lives, liberty, and property of* all persons, and enables the suprerae tribunal to annul all oppressive laws which the partisanship of local courts might perhaps sustain. To lirait the meaning of the amendraent, to confine its eff'ect to one portion of the in habitants, and that a coraparatively small part, was to de feat its raost impoi'tant design, and to destroy its highest usefulness. The construction then put upon it by the ma jority simply emasculated the amendraent. The broad, liberal, and national interpretation of Judge Field and the rainority, is clearly correct; and to it he has steadily ' adhered in every subsequent case coming before the Supreme Court, or before himself in the Circuit Court, ' down to and including the somewhat famous " Chinese .J(i Queue Case," in which he directly held that certain jlocal legislation was annuUed by the amendment. Judge Field's position in this matter should not be misunder stood. In the recent cases which have attracted so much attentiim, involving the validity of certain legis lation of Congress purporting to be based upon the XlVth 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 raay properly enact for the purpose of carrying it into eflect. He declares that no affirraative leg islation is either necessary or appropriate. Like the clauses forbidding States to pass ex post facto laws, or bills of at tainder, or laws impairing the obligation of contracts, the prohibitions of the amendraent execute themselves. They are addressed tothe 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 Wary 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 confided 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 vahdity, and to pi'onounce it null and void when discriminating or oppressive or vio lative of private civil rights; but the amendraent cannot be regarded as revolutionizing the entire theory of our political organization, and as transferring to Congress the power of legislating with respect to private and personal rights. This is, in outline, the position raaintained 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 sj'stem. The supremacy of the General Government within the scope of those powers delegated to it by tlie Constitution^ 0( is also maintained in the most positive manner by a long series of decisions, in many of which he delivered the opinion ofthe Court, and in the others concurred, deaUng with foreign comraerce, inter-state commerce, the objects of State taxation, and other analogous subjects of con gressional legislation. In numerous decisions covering every aspect of the 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 fj-ee- dom of inter-state traffic, or with the equality of civil rights belonging to citizens of other States. Did my tirae and space perrait, it would be both interesting ahd instruc tive to quote sorae passages frora the opinions of this class; but I raust be content with collecting and arranging the most important cases in the foot-note.* Here, also, it should be noticed that Judge Field has been uniformly consistent, even when the Court has departed from its estabUshed principles, as it did in some of the so-called Granger Cases involving the validity of State statutes which interfered with and prescribed regulations afl'ecting the inter-state transportation of goods and persons, and the inter-state traffic in goods. t *See the following cases in which he delivered the opinion .ofthe 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 ; Tiernan vs. Einker, 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 Wall., 232; Chy Lung vs. Freeman, 2 Otto, 975; Eailroad vs. Husen, 5 Otto, 465 ; Henderson vs. Mayor of N. Y., 2 Otto, 259. fMunn vs. Illinois, 4 Otto, 113, 135; Chicago, &c., E. E. vs. Iowa, 4 Otto, 155, 163 ; Peik vs. Chicago, &c., E. E., 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. E 58 One of the most distinguishing features of Judge Field's character as an interpreter of the Constitution, and of his work as a meraber of the National Judiciary, appears in the steady, uniform, and energetic raanner in which he has enforced all the safeguards which the Constitution and its araendments have thrown around the personal rights of hfe, liberty, and property, by inhibiting all legislative or executive action, either of the federal or of the State governraents, which would encroach upon those rights. He has clearly perceived that the priraary object of all constitutional governraent 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 integritj'^ 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 suppres.sion of insurrection, and the ultimate triuraph of the principles of freedora 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 -ft'ork is fully displayed in the accompanying volume and needs no further description. At the outbreak of the civil war a species of political insanity seems to have seized upon large numbers of other wise thoughtful and intelligent raen. The power of the President to disregard all the legal securities of life, Ub 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. It is simply araazing to look back 59 to that period and to recall the opinions which were then pubUcly maintained.* The whole subject, in fact, pre sented two aspects, namely: the effect 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 thrown around life, liberty, and property, and drew after it, as a necessary conse quence, the power to make mUitary arrests of citizens, and subject them to military trials and punishments. Even at the very outset a warning voice was raised against these raonstrous conclusions. The venerable Horace Binney, the acknowledged leader of the Araerican 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 public procession at the adoption of the United States Constitution, and then first felt, as he wrote 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 writ 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 affect the authority over arrests ; that it does not enable Congress tp 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 authoritj' than that of de taining suspected persons in custody whom the govern ment would else be obhged 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, hut which are simply the negation of every fundamental principle of civil liberty and of private rights contained in our own political institu tions. 60 These conclusions thus reached by Horace Binney were adopted by the Supreme Court in the Milligan Case (4 WaU., 2, 115), in the decision of which -Judge Field concurred. The claim to exercise martial law against civilians was still ftiore terrible. A most elaborate and exhaustive examination of the power to enforce martial law under or by 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 C'liief Justice reached the conclusion that under the common law there is no authority to enforce the raartial law in any part of the British Erapire where the common law prevails; in other words, the commorl 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 carrying 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 been on every occasion maintained by him. See es pecially his dissenting opinion in Beckwith vs. Bean, (8 Otto, 285-306. ) I must not pursue this analysis into any further detail. I have shown that This system of constitutional construc tion is consistent and complete ; Aat- 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 case ofthe Queen vs. Nelson and Brand, London, 1867, a case growing ont of the negrO insurrection, or rather tumult, in Jamaica, aud the conduct of the Gov ernor. 61 States; -tiaa* it preserves unimpaired all the restrictions and limitations imposed upon the governmental action both of the States and of the nation; tha* it jealously guards the private and civil rights and immunities of per sons; and-iba*- it respects and keeps in force the sacred principles of local self-government, and of civil and con stitutional liberty, which underlie all our political institu-i tionsT) Frora his opinions alone, a complete and consistent' system of constitutional law might be composed, in which 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 meraber of the Suprerae National Tribunal, -Judge Field has, as much as any jurist of the present generation, ira pressed himself upon the jurisprudence of his country. 63 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 gentleraen of that State, where it is believed they will be favorably received frora the nuraber of iraportant pub lic questions considered in them, and the ability with which the questions are treated. No reference is raade 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 hmits would not allow any extended statement of their views and acts. Chauncey F. Black. Samuel B. Smith. New Yobk, July, 1881. STEPHEN J. FIELD LEGISLATOR, STATE JUDGE, AND JUDGE OF THE SUPREME COURT OF THE UNITED STATES. JUDGE FIELD AS A LEGISLATOR. The Legislation secured by him for the Protection of Miners in their Mining Claims. From ihe San Jose Daily Heeald [California) of November 18,1879. " The long judicial service of our distinguished fellow- citizen, embracing nearly six years in the Supreme Court of the State, and more than sixteen in the Supreme Court of the United States, has been marked by raost able 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 iraportant services, rendered our State by hira, as a legislator, in the early days of tbe State's history. He was a meraber 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 Nevada counties. " The first legislature had enacted & general system of laws, such as are indispenaable to tIhe govei'nment of any community. It had done no.thing, however, toward the pro tection or I'egulation of tlaat great interest which had gath ered togetlier from every State in the Union, and from every nation of the world, the restless and sometiraes tur bulent [populatiom of the California of thirty years ago. The gold seekers were left to jostle each other, and to settle their disputes as best they raight. The OAvnership of the mines was held by some to be in the United States, and by others to be in the State, while all were ahke extremely jealous of any assertion of power over thera by the governraent of either. It was evident that the miners could not long be left to fight among theraselves over questions of priority or extent of clairas, while it was equally evident that legis lation on the subject 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 imraediate appeal to brute force. The world has probably never seen a sim ilar spectacle — that of extensive gold-fields suddenly peo pled by raasses of raen fi'ora 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 raeasure. Stephen J. Field solved the difficult problem. He saw that the rude society around. hira would shatter to fragraents any system in which its own strong wall and native coraraon sense were not taken into account. The rainers had, in each camp, held raeetings, and enacted rules and regulations by which they agreed to be governed in that place. These had reference to the ex tent of each claira in the given locality, 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 thera to the laws they had made for themselves. His plan was simple and at the sarae tirae thorough and sound. It was that the rules raade by the miners should be en forced by the State. What they had declared to be fair play should be the law of the land, and should govern the courts in their decisions in mining disputes. Here is the lan guage : " In actions respecting ' Mining Claims ' proof shall be adniitted of the customs, usages, or regulations estabhshed and in force at the bar, or diggings, embracing such claims, and such customs, usages, or regulations, when not in con flict with the constitution and laws of this State, shall govern the decision of the action." " The principle contained in the fifty-two words above quoted was adopted in other raining regions of the coun try, and finally by the Congress of the United States. The author of it has seen its wisdom vindicated by more than twenty-eight years of experience, and for it the people of the State and of Nevada 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 clairas, 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- 6 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 four years from a few thousand to several hundred . thousand. The lands in which the precious metals were found belonged to the United Sj;^tes, and were uiisurveyed, and not open, by law, to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nevada Mountains. Into these moun tains the emigrants in vast numbers penetrated, occupying the ravines, gulches, and canons, and probing the earth in all directions for the precious metals. Wherever they weut they carried with them that love of order and system and of fair dealing whicli are the prominent charac teristics of our people. In every district which they occupied they framed pertain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured aud 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 dififerent 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. Aud 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 lauds in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right thau others to the claims taken up ; aud 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 could 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 mining. Here, also, the first appro priator of water to be conveyed to such localities for mining or other beneficial purposes, was 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 caiions and ravines to supply communities engaged in mining, as well as for agricul turists and ordinary consumption. Numerous regulations were adopted, or assumed to exist from their obvious justness, for the security of these ditches aud flumes, and the protection of rights to water, not only be tween different appropriators, but between them and the holders of mining claims. These regulations and customs were appealed to in con troversies iu the State courts, and received their sanction ; and properties to the value of many millions rested upon them. -For eighteen years, from 18'48 to 1866, the regulations and customs of miners, as enforced and moulded by the courts, and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands. 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 lauds from sale. In that year the act, the ninth section of which we have quoted, was passed.* In the first 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 iu 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 anj' intention manifested to interfere with the possessory rights pre viously acquired, or whioh might be afterwards acquired ; the intention expressed was to secure them by a patent from the government. The Senator of Nevada,! 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 glowiug language the wonderful results that had fol lowed the 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.) f 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 exploration 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 approval. 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. Rep., 457.) JUDGE FIELD AS A LEGISLATOR. The Legislation secured by him for the Exemption from Forced Sale for Debts of the Tools and other Personal Property of the Debtor. From the San Joa^. DAILY HeealD of November 21, 1879. " Last Wednesday we gave a portion of -Judge Field's record as a legislator in this State, showing that his ser vices have been of great value and that he is one of the raost thorough statesraen claimed by this coast. We re ferred particularly to the mining law, and we now call attention to another raost beneficial law of which Judge Field was the author. We refer to the law exerapting 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 frora 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, ancl kitchen furniture, belonging to the judgment debtor, including stove, stove- 9 pipe, and stove furniture, wearing apparel, beds, bedding, and bedsteads, and provisions actually provided 4'or indi vidual or family use sufficient for one month ; '' 3. The farming-Utensils, or implements of husbandry, of the judgraent. 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 mules 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, with their professional library, and the law libraries of an attorney or counsellor ; " 5. The tent and furniture, including a table, camp stools, bed and bedding, of a miner ; also his rocker, shovels, 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 wagon, 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 thereon." * " This was far in advance of any sirailar 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 efibrt. A rapacious creditor might feel entitled to " the uttermost farthing " in the possession of the man 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 tbe previous legislation of any State of the Union. 10 But this law interposes and says to the debtor : " You shall have the ria-ht to reserve a hundred dollars' worth of property, your necessary household furniture, wearing ap parel, and a month's provisions ; and then besides this, if you are a farmer, you shall be aUowed to retain all your farming implements, and also a wagon and a pair of ani mals, with one raonth's food for them. This will enable you to go to work and repair your fortunes. The law will not see you disabled." To the mechanic and miner this humane law says : " Be of good cheer. You shall keep the tools with which you ply your calling. These shall be regarded as a part of your own physical system ; as well might your hands be cut oft" as your tools taken from them." To the workingman using a cart and horse, as so many laborers do, this law, whieh has stood for twenty- eight years on our statute book, says : " You mu.st pay your debts, but need not sell the good horse and cart by which you are aided to feed your children. Nay, you may keep a wagon and two horses, if you are so fortunate as to have them. These make you independent, and the sheriff shall not take them." Others were also protected. The instruments of the surgeon and surveyor, the library of the physician and the lawyer, and the horse and buggy of the physician, were all declared exempt from forced sale. This law has never been complained of or tampered with, and remains a monuraent to the wisdom, humanity, and thoughtfulness of its author, -Judge Field, who, in framing it, made application, for the benefit of the debtor, of the truth uttered by that harshest of creditors — Shy- lock — when he said : You take my life When you do take the means Whereby I live. These measures — the mining law, and the law exempt ing certain property from forced sale under execution — are but a small portion of the valuable legislative work of Judge Field, but we bring them to pubUc attention at this 11 time as furnishing high evidence of the practical wisdom of one whose name we read oftenest of late years in con nection with judicial decisions, but whose friends could, if they chose, claira for hira a place among statesmen as high as that he occupies among jurists. His conservatism has never raade hira the eneray of wholesome changes, and his progressiveness has never made him the supporter of any of the isms of the times. He has been as great a student of men and of afi'airs as of books." JUDGE FIELD AS A LEGISLATOR. General Legislation secured hy him. From tlie San Jose Daily Hebald of December 26, 1879. " We have already referred to legislation concerning mining customs and regulations, and exemptions of cer tain personal property from forced sale, of which Judge Field was the author. We desire to make some further reference to his brief but most honorable, 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 Coraraittee ; and as a raember of that Committee he pre pared and reported a bill concerning the Courts of Justice and -Judicial Officers of the State, which 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 fined. 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 Comraissioners of that State ; but the great labor in volved nevei'tbeless in their preparation may be estiraated 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 redi'afted over three hun dred sections, and added over one hundred new ones. Among the new sections are those to w-hich we have al ready referred relating to actions respecting mining clairas and the admission in evidence of tbe custoras 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 bill, 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 raember of Monterey County. The prin- 18 cipal provisions of these charters have been adopted in subsequent acts creating municipal incorporations. " He also drafted the act concerning divorces which was reported frora the -Judiciary Coraraittee as a substitute for a bill on the same subject introduced by Mr. Jesse D. Carr. " It has alwaj^s been a source of great satisfaction to him that he gave most earnest support to the Homestead Ex emption Bill. That bill was introduced by Mr. Gavin D. Hall, then of El Dorado, now of San Francisco, and was assailed violently as tending to obstruct the coll ection of debts. An efi'ort to reduce the amount of the Homestead Exeraption frora |5,000 to $3,000 was stoutly and success fully resisted by -Judge Field, -Judge McCorkle, and the author of the bill. " The session of 1851 was the raost impoi'tant in the his tory of the State. It was the first one held after the ad mission of California into the Union ; and some of the best timbers 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 araended by his suggestions. He was seldom absent frora 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 established by the -Journals ofthe Assembly and the paper?' of the time. " We are specially indebted for the materials of this ar ticle to information derived fi'ora Judge McCorkle, Hon. Samuel A. Merritt, and Hon. Jesse D. Carr, who were members of the Legislature with -Judge Field." In addition to the above. Judge Field was the author of the act concerning attorneys and counsellors-at-law, in 14 which he incorporated provisions rendering it impossible for any judge to disbar an attorney in an arbitrary man ner without notice of the charges against him, and giving him an opportunity to be heard upon them ; of the act concerning county recorders, in which the present system of keeping the records of conveyances was adopted ; and of the act concerning county sherifis, 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 1857 Mr. Field was elected -Judge of the Supreme Court of California for six years, commencing -January 1st, 1858. There were two candidates besides himself before the people for the position, and 93,000 votes were polled. He received a majority of 36,000 over each of his op ponents, and 17,000 over them both together.* In Septeraber, 1857, the Chief -Justice of the Court, Hugh L. Murray, died, and one of the associate judges was appointed to fill 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 13th, 1857. He held the office of associate judge until the resignation of Chief Justice Terry in September, 1859, when he becarae Chief Justice. * The exact vote was as follows : ForS. .L Field 55,216 For Nathaniel Bennett 18,944 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 Ll 1863 Mr. Field was appointed by President Lincoln an Associate Justice of the Supreme Court of the United States. The appointment was made upon the unanimous recoraraendation of the congressional delegation of the Pacific Coast, then consisting of four Senators and four Members of the House, of whom five were Democrats and three RepubUcans ; aU of them were Union men. His coraraission was dated March 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 May following. He sent in his resignation to the governor to take efi'ect on that day. -Judge Joseph G. Baldwin, who had been 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 warraly attached to his friend. JUDGE FIELD. " The resignation by -Judge Field of the office of Chief .Justice of the Suprerae 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 carae to California from New 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 that forum. For many years, and until his promotion to the bench, his practice was as extensive, and probably as renumerative, as that of any lawyer in the State. He served one or two sessions in the Legislature, and the State is indebted to him for very many of the laws whicli constitute thc body of her legislation.* In 1857 he was nominated for Judge of the Supreme Court for a fuU 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 raen who have risen to distinction inthe United States, -Judge Field commenced his career without the advantages of wealth, and he prosecuted it without the factitious aids of faraily influence or patronage. He had the advantage, however — which served him better 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 embelhshed with rare scholarly attain ments. He was distinguished at the bar for his fidehty to his chents, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary sohdity 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, which, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacitj^ -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 mense interests, the most important questions, and various and pecular litigation. California was then, as now, in the * He was iu the Legislature only one session. development of her multiforra physical resources. The judges were as rauch pioneers of law as the people of settle raent. To be sure soraething had been done, but rauch 'had yet to be accomphshed ; 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 araple of legal or judicial difficulties 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 be adrainistered alraost without a standard. There was the civil law, as adulterated or raodified by Mex ican provincialisms, usages, and habitudes, for a great part ofthe litigation ; and there was the coraraon law for another j)art, but what that ivas was to be decided from the con flicting decisions of any nuraber of courts in America and England, and the various and diverse considerations of policy arising frora local and other facts. And then, con tracts made elsewhere, and some of them in serai-civihzed countries, had to be interpreted here. Besides all which raay be added that large and iraportant interests peculiar to this State existed — mines, ditches, etc. — for which the courts were compelled to frarae the law, and raake 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- , pUshed in the same way, and presented the crudest and most incongruous materials for construction ; that the whole scheme and organization of the governraent, and the relation of the departraents to each other, had to be adjusted by judicial construction — it may well be con ceived what task even the ablest jurist would take upon himself when he assuraed this office. It is no sraall com pliment to say that Judge Field entered upon the duties 19 of this great trust with his usual zeal and energy, and that he leaves the office not only with greatly increased repu tation, but that he has raised the character of the jurispru dence ofthe State. He has raore than any other man given tone, consistency, and system to our judicature, and laid broad and deep the foundation ofour 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 the bar and the people. "His opinions, whether, for their learning, logic, or dic tion, will compare favorably, in the judgraent of sorae of our best lawyers, with those of any judge upon the Su prerae Bench of the Union. It is true what he has accora plished has been done with labor ; but 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 sorae little proportion to the time it should last. We know it has been said of -Judge Field that he is too rauch of a ' case lawyer,' and not sufficiently broad and comprehensive in his views. This criticism is not just. It is true he is- reverent of authority, and hkes to be sustained by precedent ; but an examination of his opinions will show that, so far frora being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong comraon sense. " He retires from office without a stain opon his ermine. Millions raight 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 from a public officer who has deserved, by a long and useful career, the grateful ap preciation of his fellow-citizens. We think that we raay safely predict that, in his new place. Justice Field will fulfill the sansruine expectations of his friends." T C B San Francisco, M/y 1, 1863. "' ' ' 20 It will be observed that in his communication Judge Baldwin places 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 ;y 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 stateraent as to these causes of disturbance and their disposition : 1st. As to the Mexican grants : " When California was acquired, the population was sraall 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 iraraense herds. The grants were sometiraes of tracts with defined boundaries, and soraetimes of places by name, but more frequently of specified quantities lying within boundaries embracing a greater araount. By the Mexican law, it was incumbent upon the raagistrates of the vicinage to put the grantees in possession of the land granted to thera ; and for that purpose to raeasure ott" 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 raajority of cases had been neglected be fore our acquisition of the country. Frora the size of the grants and the want of definite boundaries, arose nearly all the difficulties and coraplaints of the early settlers. Upon the discovery of gold, iraraigrants frora all parts of the world rushed into the country, increasing the popula tion in one or two years from a few thousand to several hundred thousand. A large number crossed the plains from the Western States, and many of thera sought for farraing lands upon which to settle. To them a grant of land leagues in extent seemed a monstrous wrong to which they could not be reconciled. The vagueness, also, in many instances, of the boundaries of the land clairaed gave force and apparent reason to their objections. 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 formerly occupied by the grant ees with their herds, they denied the validity of grants so large in extent. If the boundaries designated enclosed a greater amount than that specified in the grants, they un dertook to locate the supposed surplus. Thus, if a grant were of three leagues within boundaries embracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus ; forgetting that other immigrants might do the same thing, each claiming that what he had taken was a portion of such surplus, until the grantee was deprived of his entire property. "When the Supreme Court of California was brought to consider the questions to which 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 embraced inchoate and equitable rights, as well as those which were perfect. It was not for that Court to question the wisdom or policy of Mexico in mak ing grants of such large portions of her domain, or of the' United States in stipulating for their protection. As Judge Grier said in his opinion in the case of The United States vs. Sutherland, in the 19th of Howard, the rhetoric which denounced the grants as enormous monopolies and princedoms might have a just infiuence when urged to those who had a right to give or refuse; but as the United States had bound themselves by a treaty to acknowledge and protect all bona-Jide titles granted by the previous gov ernment, the court had no discretion to enlai'ge 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 which they were not originally subjected."* * In the Fossatt case this obligation of our government to protect the rights. of Mexican grantees in California is stated in brilliant and power ful language by Judge Black. Eeferring 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 Clifford) who was theu 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 Caliibrnia. 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, aud its mountains are fllled 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 iu the world. The climate is more healthful than any other on the globe : meu can labor longer with less fatigue. 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 they will ever be plundered in the face of such a pledge."— (2 Wallace, 703.) 2.3 "Acting on tlie principle— that fidelity to a nation's pledge is a sacred duty, and tbat justice is the highest in terest of the country, -Judge Field endeavored, whenever tbe occasion presented itself, and his associates co-operated with him, to protect the Mexican grantees. Their grants contained a stipulation for the possession of the lands granted, inasmuch as they were subject to the condi tions of cultivation and occupancy, and a failure to com ply with the conditions was considered by the tribunals of the United States as a most raaterial circumstance in the determination of the right of the grantees to a confirma tion of their claims. He held, therefore, with the concur rence of his associates, that the grantees, whether they were to be considered as having a legal or an equitable right to the lands, were entitled to their possession until the action of the government Upon their claims, and, there fore, that they could recover in ejectment." If the grant was a raere fioat, or of a quantity to be selected within vague undefinable boundaries like raountains, as in the case of the Mariposa grant, no line on such raountains, from their base to their sumrait, being designated, he held that the grantee was to be confined in his recovery to the tract actually used and occupied by him, until the governraent intervened and determined that the quantity granted to him should be elsewhere located. But if the grant was not a mere fioat, but was of land within clearly defined boundaries, which embraced a greater quantity than 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 whole 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 fall within 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 hiraself, aU persons could do so ; and thus the grantee, who is the donee of the governraent, would be stripped of its bounty for the benefit of those who were not in its conteraplation 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. t But at that tirae they gave offence to a large class, and the judges were accused of acting iu the interest of monopolists and land-grabbers, when in fact they were only extending to the grantees the protec tion which our treat}' witb Mexico stipulated. 2d. .As to the occupation by settlers of laiids of the United States in. advance of measures by the government for their sale. '• The position of a large portion of the people of Cali fornia, previous to 1860, with respect to the public lands, was unprecedented. Tbe discovery of gold had brought, as stated, an immense immigration to the country. The slopes of the Sierra Nevada were traversed by many of the iraraigrants in search of the precious raetals, 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 clairas 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 raining claims, evidence of the custoras, usages, and regulations of rainers in their vicinage should be adraissible, and, when not in conflict * Cornwall vs. Culver, 16 Cal., 429, and Mahoney vs. Van Winkle 21 Id., 576-580. t Van Reynegan vs. Bolton, 95 U. S., 33. with the constitution and laws of the state, should gov ern their decision, and the principle thus approved was soon applied in actions for raining clairas in all courts. In those cases it was considered that the first possessor or appropriator of the claira had the better right as against all parties except the government, and that he, and per sons claiming under hira, were entitled to protection. This principle received the entire concurrence ofthe court, and was applied, in its fullest extent, for the protection of all possessory rights on the public lands. Thus, in Coryell vs. Cain, -Judge Field said, speaking for the court : " It is undoubtedly true, as a general rule, that the claimant 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 sufiicient answer to his action to show title out of him and in a third party. But this general rule has, in this State, from the anomalous condition of things arising from the peculiar character of the mining and lauded interests of the country, been to a certain extent qualified aud limited. The larger portion of the mining lands within the State belong to the United States, and yet that fact has never been conSdered 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 lands, 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 between citizens of the State, where neither connects himself with the government, is con.sidered as vested in the first possessor, and to proceed from him. " — (16 Cal., p. 572.) The doctrine thus laid down was of incalculable benefit to all occujjants of the public 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 be protected in their possessions until the general government should interfere and assert its superior title. 3d. As to the claim of California to oivu the gold and silver found in all lands in the State. " The difficulties attendant upon any attempt to give security to landed 'possessions in the State, arising from the circumstances narrated, were increased by an opin ion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in pubhc or private lands, belonged to the State by virtue of her sovereignty. To this opinion a decision of the Supreme Court of the State, raade in 1853, gave great potency. In Hicks vs. Bell, decided that year, the court came to that conclusion, relying upon certain decisions of the courts of England recognizing the right of the Crown to those metals. The principal case on the subject was that of The Queen vs. The Earl of Northum berland, reported in Plowden. The counsel of the Queen in that case gave, according to our present notions, some very fanciful reasons for the conclusion reached, though none were stated in the judgment ofthe court. The Su prerae Court of the State, without considering the force of the reasons assigned in that case adopted its conclusion ; and as the gold and' silver in the British realm are there held to belong to the Crown, it was concluded, on the hy pothesis that the United States have no municipal sover eignty within the limits of the State, that they must be long in this country to the State. The State, therefore, said the court, " has solely the right to authorize thera " (the mines of gold and silver) "to be worked; to pass laws for their regulation ; to license rainers ; and to affix such terras and conditions as she may deem proper to the freedom of their use. In her legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions; and she has wisely provided that their conflict ing claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity."— (3 Cal., 227.) " The miners soon grasped the full scope of the decision thus rendered, and the lands of private proprietors were invaded for the purpose of mining as freely as the public lands. It was the policy of the State to encourage the developraent of the mines, and no greater latitude in ex ploration could be desired than was thus sanctioned by the highest tribunal of the State. " It was not long before a cry came up from private pro prietors against this invasion of their possessions. There was gold in liraited quantities scattered through large and valuable districts, where the land was held in private pro prietorship, and under the doctrine announced the whole might be invaded, and,for all useful purposes, destroyed, no matter how little remunerative the product of the mining. The entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gar dens, or otherwise. It was evident that under such a state of things the owner of mineral land would never be se cure in his possessions. His title would be of little value if there was a right of invasion iu the whole world. In fact, the land would be to hira poor and valueless just in proportion to the actual richness and abundance of its products. " The Court was, therefore, compelled to put some limi tation upon the enjoyment by the citizen of this asserted right of the State. Accordingl}', within tw^o years after- wards', it held that although the State was the owner of the gold and silver fouud in the lands of 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." — (Stoa.kes vs. Barrett, 5 Cal., 39.) " 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 bench, in 1857, the right to dig for the precious metals on the lands of private individuals, under an assumed hcense of the State, was still asserted." But after wards, in the case of Biddle Boggs vs. The Merced Mining Company* the whole subject was elaborately examined, and the doctrine repudiated. Judge Field wrote the opin ion of the Court, which attracted much attention. The faUaciousness 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 raetals 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.t 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 United 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 iu public or private lauds was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than that of any other property which is the subject of barter and sale. fSo vereign ty 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 ol 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 raean that she possesses su preme political authority, except as to those matters-over which such au- * 14 Cal. Rep., 373-380. f 17 Cal. Rep., 200. 29 thority is delegated to the federal government, or prohibited to the States ; in other words, that she possesses all the rights aud powers essential to the existence of au iudepehdent political organization, except as they are withdrawn 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 part ofit — the ownership of the minerals of gold aud silver found within her limits is in no way essential. The minerals do not differ from the great mass of property, the ownership of which may be in the United States, or iu individuals, without affecting in any respect the political jurisdiction of the State. '^They may be acquired by the State, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, aud by the same right ; by the right of ownership, and not by any right of sovereignty,"! " The court also held that, although underthe Mexican law the gold and silver found in land did not pass with a grant of the land, a diff'erent result followed, under the coramon law, when a conveyance of land was made by an individual or by the governraent. By such a conveyance, without a special reservation, everything passed in any way con nected with the land, forraing 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-Boggs 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 oue case, and concluded his article iu the following "It would be pleasant, if this article had not become 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 ofiice 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 spokeu, and we are, after all, a law-abiding people." 30 Patents for Land by the United States. Patents for land by the United States, particulariy those issued upon a confirmation of gmnts in California of the former Mexican government, were the subject of repeated consideration by the Supreme Court of the State while Judge Field was on its bench. In many opinions written by him, the operation of such patents was elaborately and exhaustively treated, and the law by which they were to be construed, their efi'ect in giving quiet and security to the patentees in the possession of their lands, the 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 the lands covered by them. The doctrines advanced by hira have never been successfully controverted, and they have been approved by the Suprerae Court of the United States.* Municipal Corporations. Municipal corporations, their powers, rights, and obliga tions, were 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, raakes frequent citations frora 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 what are known in Cali fornia as the " City Shp Cases," where 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. Smith, 16 Id., 534 ; Teschemaoker 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. 31 San Francisco was sold under a void ordinance and the pro ceeds appropriated for municipal purposes, it was held, that no title passed, and that under the charter of the city (which required sales of its property to be made, by an ordinance adopted for that purpose, after advertisement of the time and place and terms of sale) the appropriation ofthe pro ceeds did not operate to ratify the sales, while at the same time it imposed upon the city the habihty to pay back the money to the purchasers. It would seem plain that if the mere appropriation of the proceeds obtained under a void ordinance could give validity to a sale of the city's prop erty, the restraints imposed by the legislature upon the action of the city would be easily defeated. Referring to the principles stated in these decisions, .Judge DiUon says that they " are vindicated with characteristic clearness and striking logical force, in able and interesting opinions of Mr. Chief Justice Field." * Among other objections against a recovery of the money paid by the purchasers upon the void sale, it was urged, that the common council of the city was forbidden by its charter to create or perrait to be 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 by an ordi nance providing the ways and means for the payment of the annual interest and of the principal, and such ordinance were approved by a vote of the people. To this objection -Judge Field, in speaking for the court, thus replied : " We are clear that the provision refers only to the acts or contracts of the city, and uot to liabilities which 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 Zottmau vs. San Francisco, 20 Cal., 96. 82 priatcd it to municipal purposes, and he insists that she is responsible to him 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 belougs to others— which rests upon all persons, whether nat ural or artificial. And it may 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 judgraent agaiust 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 liability ? 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 amount thus paid by mistake ? Could she plead her previous indebtedness as au 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, aud an individual should be inj ured in consequence — should break his leg or be otherwise crippled — could she allege her insolvency against his claira for damages ? Would her pecuniary condition be an answer for the neglect of every duty, legal aud moral? If this were so, she would be the most irresponsible corpo ration on earth, and her treasury would be, in many 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 sarae 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 easts 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., 631-2.) Mortgages. 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 hira, made that the rule of law which was be fore the rule of equity, naraely : that a mortgage is not a conveyance, but a pledge only, redeemable by comphance with the condition on which it was given. Herman, the author of a recent and most learned work on mortsases, expresses the opinion that " No man in this country has done as much in developing sound principles in regard to mortgages — that they are mere hypothecations — as -Judge Field. To his labors on the Supreme Bench of California, and in the United States Supreme Court, have been in debted the courts of every State where the doctrine is maintained ; and his California opinions are cited as lead ing and decisive ofthe true principle."* Other Cases. Numerous 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 claira of the State to five hundred thousand acres of land donated by the Sth section of the Act of Congress of Sept. 4th, 1841, for purposes of internal improvement, and to its right to dispose of the lands in advance of the public surveys ; — to contracts of the State for the support and labor of its convicts ; — to the power of the courts to compel by mandamus ofRcer.5 of the State to do their duty ; — to the confiicting rights of rainers 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 California ; — 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 b}^ the * McMillan vs. Richards, 9 Cal., 365 ; Nagle vs. Macy, 9 Id., 426 ; John son vs. Sherman, 15 Id., 287; Goodenow vs. Ewer, 16 Id., 461. 3 34 State in 1851 ;— to the construction of wills ;— to the dis tinction between raortgages and deeds of trust ; and to a great nuraber 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-parte Newman, (9 Cal., 502,) relating to a law making- Sunday a day of rest — Judge Field wrote a dissenting opinion; and in the other — Perry vs. Washburn, (20 Cal, 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 Newman the question arose as to the validity of a law of California, which provided that no person should keep open on Sunday " any store, w^arehouse, me chanic shop, workshop, banking-house, raanufacturing establishment, or other 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 houses, and livery stables, and the retailei's of drugs and medicines, and certain articles of fresh food and ar ticles required in cases of necessity or charity. Nor did the law apply to sucb manufacturing or other business establishments as were necessarily required to be kept in continual operation to accomplish their business. * 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, 1 3 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 ; HoUiday 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; DoU vs. Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. This law the majority of the court decided to be in con flict with the clause of the constitution which declared that " the free exercise and enjoyment of religious pro fession and worship, without discrimination or preference," should forever be allowed in the State, holding that in enforcing cessation from labor on a day held sacred by a religious sect was a discrimination in favor of that sect. The court also decided that the Legislature had no rirfit to forbid the pursuit of a lawful occupation on one day of a week, any more than it had a right to forbid it altogether, under the clause of the constitution declaring that all men have the inaUenable right of " acquiring, 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 provi-sions. And he thus vindicated its wisdora : "In its enactment the Legislature has given the sanction of law to a rule of conduct which 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 ou 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 uation, 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, aud distinguished philosophers have not hesitated to pronounce the rule founded upou a law of our race. " The Legislature possesses the undoubted right to pass laws for the preservation of health and the promotion of good morals, and if it is of opiniou 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 uot the province of the judiciary to pass upon the wisdom and policy of legislation ; and when it does so, it usurps a power 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- 36 tion. The position assumes that all men are independent, and at liberty to work whenever they choose. Whether this be true or not in theory, it is false in fiict ; 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 obliged 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 unin 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 power is permitted to deprive them. It is theirs for repose, for social intercourse, for moral culture, aud, if they choose, for divine worship. Authority for the enactment I find in the great object of all government, which is protection. Labor is a necessity imposed by the condition of our race, and to protect labor is the highest oflice of our laws." Indeed, every one can see that the only chance for rest to the over-worked laboring classes in our factories and workshops, and in the heated rooras of our cities, is in a law compelling cessation from secular pursuits at regular intervals. Without it there would be for them 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, aud to be free from the perpetual din of the shop, and the ever-pressing thought that only by the sweat of their brow they can earn their daily bread. To the objection that Sunday is a day of rehgious 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 i ts constitutionality. Such inconvenience is an incident to all general laws. A civil regulation cannot be converted into a relig ious institaition because it is enforced on a day that a particular religious 37 sect regards as sacred. The fact that the civil regulation finds support in the religious opinion of a vast majority of the people of California is no argument against its establishment. It would be fortunate for society if all wise civil rules obtained a ready obedience from the citizen, not merely from the requirements ofthe law, hut from conscientious or relig ious convictions of their obligation. The law agaiust homicide is not the less wise and necessary because the divine command is 'thou shalt do no murder.' The legislation against perjury is uot the less useful and essen tial for the due administration of justice because the injunction comes from the Most High, ' thou shalt not bear false witness agaiust thy neigh bor.' The establishment by law of Sunday , as a day of re.st from labor, is none the less a beneficent and humane regulation because it accords with the divine precept that upon that day ' thou shalt do no manner of work ; thou, aud thy son, and thy daui^hter, thy man-servant and thy maid-servant, thy cattle, and the stranger that is within thy gates.' " To the objection that the law was in conflict with the clause declaring the inalienable rights of a.U men to acquire, possess, and protect property, he answered that the clause was never intended to inhibit legislation upon t.hem, and that the mode and manner' of acquiring, possessing, and protecting property were matters upon which laws were passed at every every session of the Legislature. '' All sorts of restrictions and regulations," he added, " are placed upou the acquisition and disposition 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 use of it, must be considered in relation to other rights. It may be regulated for 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 acquire on the other six." — (9 Cal., 527.) The decision of the court was rendered at the April term in 1858. In 1861 the Legislature passed another Sunday law similar in its provisions to the one declared to be un constitutional, and at the -July term of that year the court held it to be constitutional, thus overruling the decision in E.t-parte Newman, and adopting the views expressed by Judge Field in his dissenting opinion in that case. — (18 Cal., 680.) 38 The Non-receivability of Legal-Tender Notes for State Taxes. In Perry vs. Washburn the question arose whether 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 pubhc." 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 t.he court, and in speaking 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 purposes. 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 ofthe taxpayer. It operates in invitum." Independent of the 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 raoney, as was for raerly done in some of the States; and that this right has never been surrendered to the general government. This case is important as being the first one in which the re- ceivabihty 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. Oregon (7 Walk, 71). STEPHEN J. FIELD JUDGE OF THE SUPREME COURT OF THE UNITED STATES. Mr. Field was commissioned as a -Justice of the Supreme Court of the United States on the 10th of March, 1863, but he did not take the oath of office 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 Cahfornia and Oregon.* When Nevada 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 in the winter, and hold the Circuit Court in his circuit in the suramer. 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 ofiice 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 standing 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 regular salary. He has never faUed to visit his circuit any year since his appointment, although since the passage of the act of 1869, providing for the appoint ment of circuit judges, he has not been required to attend a term in his circuit but once in two years. Of the many important cases tried and disposed of by him there, men tion will be made hereafter. When he went on the Supreme Bench, Taney was Chief -Justice, and Wayne, Catron , Nelson ,Grier,Chff'ord, Swayne, MiUer, a.nd Davis were associate justices. Chief -Justice Taney died in the following year, and Mr. Chase was ap pointed his successor. The business of the court is always greater than can be disposed of by the judges, and at every session cases involving important 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 MiLLKiAN Case. " One of the earliest and most important cases of this kind was the iNIilligan case. In October, 1864, Milligan, a citizen of the United States and a resident of Indiana, was arrested by order of the 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 raonth, put on trial, before a military comraission convened at Indianapolis, in that State, upon charges of: 1st, Conspiring against the Government of the United States ; 2d, Aflordingaid and comfort to the rebels against the authority of the United States ; 3d, Inciting insur rection ; 4th, Disloyal practices ; and Sth, 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 were open in that State and in the undisturbed ex ercise of their jurisdiction. The sentence of the military commission was affirmed by the President, who directed that it should be carried into immediate execution. The con demned thereupon presented a petition to the Circuit CV)U]'t ofthe United States in Indiana for a writ of huhras corpus, praying to be discharged from custody, alleging the ille gahty of his arrest and of the proceedings of the military commission. The judges of the Circuit Court were di vided in opinion upon the question whether the writ should be issued and the petitioner discharged, which, of course, involved the jurisdiction ofthe military commission to try him. Upon a certificate of division the case was bronght to the Supreme Court at the December term of 1865. The case was elaborately argued by alile and distinguished counsel, consisting of Mr. -Joseph E. McDonald, now U. S. Senator frora Indiana, Mr. .James A. Garfield, a dis tinguished member of Congress, Mr. -Jeremiah S. Black, the eminent jurist of Pennsylvania, and Air, David Dudley Field, of New York, for the petitioner ; and by Mr. Henry Stanbery, the Attorney-General, and Gen, B. F. Butler, for the government. Their arguments were remarkable for learning, research, ability, ancl eloquence, and will repay the careful perusal not only of the student of law, but of all lovers of constitutional liberty. The judgment of the court was for the liberty of the citizen. All the judges agreed to his discharge, but the opinion, which has given so much celebrity to the case, and placed the protec tion of the citizen, in States where the civil courts are open, on solid grounds, obtained the approval of only five of the judges against four of them. Judge Field teas one of the five; his vote was esscnticd to m.ake that opinion the judgment of the court. " The opinion was written by Mr, .Justice Davis, and it will be a perpetual monument to his honor. It laid down in clear and unmistakable terms the doctrine that military commissions organized during the war, in a State not in vaded nor engaged in rebellion, in which the federal courts 42 were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citiz3n,who was not a resident of a State in rebellion, nor a prisoner of war, nor a person in the military or naval service ; and that Congress could not invest them with any such power ; and that in States where the courts were thus open and undis turbed, the guaranty of trial by jury contained in the Con stitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances." The Cummings Case. " At the same term with the Milligan. case the test-oath case from Missouri was brought before the court and ar gued. In -January, 1865, a convention had assembled in that State to amend its constitution. Its members had been elected in November previous. In April, 1865, the constitu tion, as revised and amended, was adopted by the conven tion, and in -June following by the people. Elected, as the members were, in the midst ofthe war, it exhibited through out traces of the animosities which the war had engendered. By its provisions the nn.st stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursu ing avocations in no way connected with the administra tion of the government. The oath, divided into its sep arate parts, contained more than thirty distinct affirmations touching past conduct, and even erabraced the expression of syrapathies and desires. Every person unable to take it was declared incapable of holding in the State " any office of honor, trust, or profit under its authority, or of being an officer, councilman, director or trustee, or other manager of any corporation, pubhc or private, now exist ing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real 43 estate or other property in trust for the use of any church, religious society, or congregation. " And every person holding, at the time the amended constitution took efi'ect, any of the offices, trusts, or posi tions mentioned, was required, within sixty days thereafter, to take the oath ; and, if he failed to comply with this re quirement, it was declared that his office, trust, or position should ip.so facto become vacant. No person, after the expiration of the sixty days, was permitted, without taking the oath, " to practice as an attorney or counsellor-at-law," nor, after that period could " any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious per suasion, sect, or denomination, to teach, or preach, or sol emnize marriages." Fine and iraprisonment were prescribed as a punishment for holding or exercising any of " the offices, 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 iraprisonraent in the penitential'}'. Mr. Curamings of 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 rainister of that religious denom ination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be comraitted to jail until the same was paid. On appeal to the Supreme Court of the State the judgment was affirmed, and the case was 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 New York, and Mr. Reverdy Johnson, of Maryland, for Mr. Cumraings ; and by Mr. G. P. Strong and Mr. John B. Henderson, of Missouri, the latter then United 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 frora parties, as a condition of their continuing to pui'oue certain pro fessions, or to hold certain trusts, might, if sustained, be often exercised in times of excitement to the oppression, if not ruin, of the citizen. For, if the State could require the oath for the acts mentioned, it might require it for any acts of one's past Ufe, the number and charactor of which would depend upon the mere will of its legislature. It might compel one to affirm, under oath, that he had never violated the Ten Commandments, nor exercised his politi cal rights except in conformity Math the views of the ex isting majority. Indeed, under this kind of legislation, the most flagrant wrongs might be committed and whole classes of people deprived, not only of their political, but of their civil rights. "It is difficult to speak of the whole system of expurga- tory oaths for past conduct without a shudder at the suft'ering and oppression they were not only ca.pable of effecting but often did efi'ect. Snch oaths have never been exacted in England, nor on the Continent of Europe. Test-oaths there have always been limited to an affirma tion on matters of present belief, or as to present dispo sition towards those in power. It was reserved for the ingenuity of legislators in our country during the civil M'ar to make test-oaths reach to past conduct. " The court held that enactments of this cliaracter, op erating, as they did, to deprive parties, by legislative de cree, of existing rights for past conduct, without the for mality and the safeguard of a judicial trial, fell within the inhibition of the Constitution against the passage of bills of attainder. In depriving parties of existing rights for past conduct, the provisions of the constitution of Missouri imposed, in eff'ect, a punishment for such conduct. Some of the acts for which such deprivation was imposed were npt punishable at the time ; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the Constitution against the passage of an ex post facto law. The decision of the court, therefore, was for the discharge of the Cath ohc priest. The judgment against him was reversed, and the Supreme Court of Missouri was directed to order the inferior court by which he was tried to set him at liberty." This judgment obtained the concurrence of only five judges against four of them. Judge Field wa.s one of the five ; his rate u.^a.s essmtiid to that judgment ; and he uTote the opinion (f the court. The Garland Case. Immediately following the case of Cummings that, of Ex-parte Garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of Congress of -January 24th, 1865. Mr. A. H. Gariand, now United States Sena tor frora 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 Confederate States, he went with her, and was one of her representatives in the Congress of the Confed eracy. In -July, 1865, he received from the President a full pardon for all off'ences committed by his participation, director implied, in the rebellion. At the following term ofthe 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 with it, which he was unable to take by reason of the offices he had held under the Confederate Government. The application was argued by eminent counsel, con sisting of Mr. Matthew H. Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the petitioner, Mr. Garland, and Mr. Marr, another applicant for admis sion, who had participated in the rebellion, fihng written arguments ; and by Mr. Speed, of Kentucky, and Mr. 46 Henry Stanbery, the Attorney-General, on the other side. The whole subject of expurgatory oaths was discussed, and aU that could be said on either side was fully and elaborately presented. " The court in its decision foUowed the reasoning of the Cummings case and held that the law was invaUd, as apphed to the exercise of the petitioner's right to practice his pro fession ; that such right was not a raere indulgence, a matter of grace and. favor, revocable at the pleasure of the court, or at the command of the legislature ; but 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 the ofi'ence of treason committed by his participation in the re bellion, and that, so far as that ofi'ence was concerned, he was placed beyond the 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 the con stitutional power of Congress thus to inflict punishment beyond the reach qf executive clemency." The judgment in this case also was pronounced by five of the judges against four of thera. Judge Field here again IV2S one of the five. His vote was essential to the judgment; 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 efficient government of the rebel * In the decision of the two test-oath cases — the Cummings case and the Garland case — Justices Wayne, Nelson, Grier, Clifford, 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 ofthe majority; and the decision was followed bythe whole court, with the exception of Mr. Justice Bradley, in the case of Pierce vs. Carskadon, decided at Hhe December term, 1872. — (16 Wallace, 234.) 47 States,' of March 2d, 1867, and an act of the 23d of the same month, supplementary to the former — were violently attacked in Congress when before it for consideration, as invahd, unconstitutional, and arbitrary raeasures of the gov ernraent ; and as soon as they were passed various steps were taken to bring thera to the test of judicial examina tion and arrest their enforcement. Those acts divided the late insurgent States, except Tennessee, into five military districts, and placed them under military control to be ex ercised until constitutions, containing various provisions stated, were adopted and approved by Congress, and the States declared to be entitled to representation in that body. The State of Georgia, in April following their passage filed a bill in the Suprerae Court invoking the exercise of its original jurisdiction, against Stanton, Secretary of War, Grant, General of the Arm}-, and Pope, Major-General, assigned to the command of the Third Military District, consisting of the States of Georgia, Florida, and Alabama; to restrain those officers from carrying into eff'ect the pro visions of the acts. The bill set forth the existence of the State of Georgia as one of the States of the Union; the civil .war in which she, with other States forming the Confederate States, had been engaged with the government of the United States; the surrender of the Confederate armies in 1865, and her submission afterwards to the Con stitution and laws of the Union ; the withdrawal of the military government from Georgia by the President as Commander-in-Chief of the army of the United States; the re-organization of the civil government of the State under his direction and with his sanction; and that the govern ment thus re-organized was in full possession and enjoy ment of all the rights and privileges, executive, legislative, and judicial, belonging to a State in the Union under the Constitution, with the exception of a representation in the Senate and House of Representatives. The bill alleged that the acts were designed to overthrow and annul the ex isting government of the State, and to erect another and a 48 difierent government in its place, unauthorized by the Constitution and in defiance of its guaranties ; and that the defendants, acting under orders of the President, were about to set in motion a portion of the army to take mih tary possession of the State, subvert her government, and subject her people to mihtary rule." The court, however, dismissed the bill, holding that it called for judgment upon a pohtical question. — (6 Wal lace, 50.) Other attempts were made to obtain the judg ment of the court upon the legislation in question, but until the McArdle case, they failed from the assumed want of jurisdiction in the court to pass upon its validity as the ques tion was presented. But in the McArdle case the validity of that legislation came up in such a form that its considera tion could not be avoided. In November, 1867, McArdle had been arrested and held in custody by a military com mission organized in Mississippi under the Reconstruction Acts, for trial upon charges of ( 1 ) disturbing the pubhc peace ; (2) inciting to insurrection, disorder, and violence ; (3) libel ; and (4) impeding reconstruction. He there upon applied to the Circuit Court of the United States for the District of Mississippi for a writ of h'lheas corpus, in order that he might be discharged frora his alleged illegal im prisonment. The writ was accordingly issued, bnt on the return of the olficer showing the authority under whieh the petitioner was held, he was ordered to be remanded. From that judgment he appealed to the Supreme Couijt^ Of course, if the Reconstruction Acts were invalid th^l peti tioner could not be held, and he was entitled to his dis charge. The ease excited great interest throughout the country. -Judge Sharkey and Robert -J. Walker, of Mis sissippi, David Dudley Field and Charle's O'Connor, of New York, and -Jeremiah S. Black, of Pennsylvania, appeared for the appellant ; and Matthew H. Carpenter, of Wiscon sin, Lyman Trumbull, of Ilhnois, and Henry Stanbery, the Attorney-General, appeared for the other side. The case 49 was thoroughly argued, as any one must know from the character of the counsel. " Seldom has the court Ustened to arguraents equal in learning, abiUty, and eloquence. The whole subject was exhausted. As the arguraents were widely pubhshed in the public journals, and read throughout the country, they produced a profound eff'ect. The irapression was general that the Reconstruction Acts could not be sustained ; that they were revolutionary and destructive of a republican form of government in the States, which the Constitution required the federal government to guarantee. Of course what the judgment of the court would have been cannot be known, as it never expressed its opinion. The argu raent was had on the 2d, 3d, 4th, and 9th of March, 1868, and it was expected thatthe case would be decided in reg ular course of proceedings when it was reached on the sec ond subsequent consultation day, the 21st. In the mean time an act was quietly introduced into the House, and passed, repeahng so much of the law of February Sth, 1867, as authorized an appeal to the Supreme C^ourt from the JLidgment ofthe Circuit Court on writs oi habeas corpus, or the exercise of jurisdiction on appeals already taken. The President vetoed the bill, but Congress passed it over his veto, and it becarae a law on the 27th of the month.* Whilst it was pending in Congress the attention of the -Judges was called to it, and in consultation on the 21st they postponed the decision of the case until it should be disposed of. It was then that Mr, -Justice Grier wrote the following protest, which he afterwards read in court : " In re ^ McAedlb I Protest of Mr. Justice Griee. This case was' fully argued in the beginning of this month. It is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. The country and the parties had aright to expect that it would receive the immediate and solemn attention of this court. By the postponement of the case we shall subject ourselves, * 15 Stats, at Large, 44. 50 whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. I am not willing to be a partaker either of the eulogy or opprobrium that may follow ; and can only say : " Pudet ha;c opprobria nobis, Et dici potuisse ; et non potuisse repelli." * K. C. Geieb. I am of the same opinion with my brother Grier, and unite in his pro test. Field, J. After the passage of the repealing act, the case was con tinued ; and at the ensuing terra the appeal was disraissed for want of jurisdiction. — (7 Wall., 506.) No further di rect atterapt was ever afterwards raade to obtain the judg ment of the court upon the constitutionality of the Recon struction Acts. Confiscation Cases. On tbe 17th of -July, 1862, the President approved of the act of Congress commonly known as the Confiscation Act. It is entitled " An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes." Its first sec tion prescribed the punishment for treason thereafter com mitted. It punished it with death, or, in the discretion of the court, with imprisonraent for not less than five years and a fine of not less than ten thousand dollars ; and it provided that the slaves of the party adjudged guilty, if any he had, should be declared free. The second section provided for the punishment of the off''ence of inciting, setting on foot, or engaging in any rebellion or insurrection against the authority of the United States or the laws thereof, or en gaging in or giving aid and corafort to the rebellion or insurrection then existing. The third section declared that parties guilty of either of the off'ences thus described *" It fills us with shame that these reproaches cau be uttered, aud can not be repelled." The words are found in Ovid's Metamorphoses, Book I., lines 758-9. In some editions the last word is printed refelli. ."ll should be forever incapable and disqualified to hold any office under the United States. The fourth section pro vided that the act should not aft'ect the prosecution, con viction, or punishment of persons guilty of treason before the passage of the act, unless such persons were convicted under the act itself. The fifth section declared " that to insure the speedy termination " of the rebelhon, it should be the duty of the President to cause the " seizure of all the estate and property, money, stocks, credits, and effects " of certain persons named therein, and to apply and use the sarae and their proceeds for the support of the army of the United States. Among the classes named were in cluded persons who raight thereafter act as officers, raih tary or civil, under the Confederate States, or hold any agency under them, or any of the States coraposing the Confederacy, and persons owning property in any loyal State or Territory of the United States, or in the District of Columbia, who should thereafter assist and give aid and comfort to the rebellion. The sixth section declared that if any person within any State or Territory of the United States, other than those aboved naraed, after the passage of the act, being engaged in armed rebellion against the United States, or in aiding or abetting such rebellion, should not, within sixty days after public warning and proclamation of the President, cease to aid and abet it, and return to his allegiance to the United States, all his " estate and property, moneys, stocks and credits " should be liable to seizure ; and that " all sales, transfers, or con veyances of any such property after the expiration of the said sixty days " should be " null and void," and that it should be " a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove " that he was one of the persons described in the section. The other sections of the act prescribed the proceedings to be taken for the conderanation of the property after it had been seized and for its disposition The " other pur- poses " mentioned in the title of the act related princi pally to slaves, their employment or colonization, and the power ofthe President to proclaim annesty and pardon.— (12 Stats., 590.) The proclamation of the President, reference to which was made in the sixth section, was issued and pubUshed on the 25th of -July 1862.— (12 Stats., 1266.) Before the constitutionahty of this act was passed upon by the Supreme Court, the question arose as to the import and meaning ofthe last clause of the sixth section, declaring "all sales, transfers, and conveyances" of property by per sons not heeding the warning of the President and ceasing to aid the rebellion, to be null and void. In Corbett vs. Nutt (10 Wall., 479) it was contended that a devise to one Mrs. Hunter, a resident in Virginia, within the Confederate lines, was a transfer within the meaning of the act, and by its provisions was invalid. But the court answered, that assuming that a devise was included within " the sales, transfers, and conveyances " invalidated by the act, such invahdity could only be asserted by the United States. The act contemplated the seizure and confiscation of the property of certain persons engaged in the rebellion, and authorized the institution of proceedings for that purpose; and -Judge Field, speaking for the court, said : " It was to prevent these provisions from being evaded by the parties whose property was liable to seizure that 'sales, transfers, and convey ances ' ofthe property were declared invalid. They were null and void as against the belligerent or sovereign right of the United States to appropri ate and use the property for the purpose designated, but in no other re spect, and not as against any other party. Neither the object sought, nor the language ofthe act, requires any greater extension of the terms used. The United States were the only party who could institute the proceed ings for condemnation ; the offence for which such condemnation was de creed was against the United States, and the property condemned, or its proceeds, went to their sole use. They alone could, therefore, be affected by the sales. " Any other construction would impute to the United States a severity in their legislation entirely foreign to their history. No people cau exist without exchanging commodities. There must be buying aud .selling and 53 exchanging in every community, or the greater part of its inhabitants would have neither food nor raiment. And yet the argument of the de fendant, if good for anything, goes to this extent, that by the act of Con gress 'all sales, transfers, and conveyances' of property ofthe vast num bers engaged in the late rebellion against the United States, constituting the great majority of many towns and cities, and even of several States, were utterly null and void ; that eventhe commonest transactions of ex change in the daily life of these people were tainted with invalidity. It is difficult to conceive the misery which would follow from a legislative de cree of this wide-sweeping character in any community, where its execu tion was conceived to be possible, or confidence was reposed in its valid ity."— (10 Wall., 479-480.) In the case of MiUer vs. United States (11 Wall., 268) the question of the constitutionality of the act came di rectly before the court. In that case 200 shares of stock in the Michigan Southern and Northern Indiana Railroad Company, and 343 shares in the Detroit, Monroe and Toledo Railroad Co., the property of one Samuel Miller, a resi dent of Virginia, was seized by the raarshal of the District of Michigan under the act, and, by proceedings in the Dis trict Court of that district, were condemned as forfeited to the United States. The U. S. Circuit Court affirmed the decision, and the case was taken to the Suprerae Court. Besides various objections urged to the decree, for irregular ities in the alleged seizure and proceedings, the unconstitu tionality of the act under which it was rendered was as serted. The court met this question directly, and affirmed the validity of the act, holding that, while so much of it as imposed penalties for treason was passed in the exercise of the municipal power of Congress to legislate for the punishment of off'ences 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 ofthe court was deUvered by Judge Strong, and received the concurrence, on this point, of all the judges present at the argument, except Judges Clifford and Field. Chief -Jus tice Chase was absent from the court the whole term on account of ill-health. Judge Nelson was engaged on the 54 Joint High Comraission for the settleraent, by treaty, of questions in dispute between the United States and Great Britain. Judges Chft'ord 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 such property, unless taken in the field or besieged towns, or as a military contribution, is usually exempt from confiscation; but they contended that the act in question was not directed against enemies as such, but against persons who were guilty of certain alleged offences. After stating fhe several provisions of the act, -Judge Field said as follows : "It would seem clear, therefore, that the provisions ofthe act werenot passed iu the exercise of the war powers of the government, 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 raay 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 public 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, but 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 features, 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 Repre sentatives, where the bill originated, a joint resolution explanatory of the act was 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- -DO fore the expiration of the ten days allowed him for the consideration of the original bill. He returned the bill and resolution together to the House, where they origiuated, with a message, in which he stated that, considering the act and the resolution explanatory of the act as being substantially one, he had approved and signed both. That joint resolution declares that the provisions of the third clause of the fifth section of the act shall be so construed as not to apply to any act or acts done prior to its pass.age, ' nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.' " The terras here used, ' forfeiture ' of the estate of the ' offender,' have no application to the confiscation of eneniies' property nnder 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 iu the extent of punishment which it author izes, and I cannot, therelbre, sign it. Congress accepts his interpretation, aud 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 difficult to con ceive of any reason 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, theu, arises whether proceedings iu 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 for the condemnation of enemies' property when au thorized bj' Congress. The proceedings in such cases are merely to auth en- ticate the fact, upou which, under the law of nations, the confiscation fol lows. Bnt here the inquiry is, whether, upon the assumption that a party is guilty of a particular public offence, his property may be seized, and upon proof of his guilt, or its assumption upon his failure to appear upon publication of citation, condemnation may be decreed. The inquiry is prompted from the supposed analogy of these cases to proceedings in rem for the confiscation of property for offences agaiust the revenue laws, or the laws for the suppression of the slave-trade. But in these cases, and in all cases where proceedings in rem are authorized for a disregard of some municipal or public law, the offence constituting the ground of con demnation inheres, as it were, in the thing itself. The thing is the in strument of wrong, and is forfeited by reason of the unlawful use made * See Bigelow vs. Forrest, 9 Wall., 350, and McVeigh vs. United States, 11 Wallace, 259. 56 of it, or the unlawful condition in which it is placed. And generally the thing, thus subject to seizure, itself furnishes the evidence for its own condemnation. Thus, goods found smuggled, not having beeu subjected to the inspection of the officers of the customs, or paid the duties levied by law, prove of themselves nearly all that is desired to establish the right of the government to demand their confiscation. A ship entering the mouth of a blockaded port furnishes by its position evidence of its intention to break the blockade, and the decree of condemnation follows. A ship captured whilst engaged in the slave-trade furnishes, in the use to which it was subjected, the material fact to be established for its forfeiture. In all these cases the proceeding is against the offending thing. And it is true that in these cases criminal proceedings will also lie against the smuggler or slave-trader, if arrested, and that the procedings in rem are wholly inde pendent of, and unaffected by, the criminal proceedings against the peraon. But iu the two cases the proof is entirely different. In the one case there must be proof that the thing proceeded against was subjected to some unlawful use or was fouud in some unlawful conditiou. Inthe other case the personal guilt of the party must be established, and when condemna tion is founded upon snch guilt, it must be preceded by due conviction' of the offender, according to the forms prescribed by the Constitution. ' Confiscations of property,' says Mr. Justice Sprague in the Amy War wick,* ¦ not for any use thaii has beeu made of it, which go not against an offending thing, but are inflicted for the personal delinquency of the owner are punitive, and punishment should be inflicted o^ily upon due conviction of personal guilt.' ' " If we examine the cases found in the reports, where proceedings in rem have been sustained, we shall find the distinction here stated con stantly observed. Indeed, were this not so, and proceedings in rem for the confiscation of property could be sustained, without any reference to the uses to which the property is a.pplied, or the condition iu which it is found, but whilst, so to speak, it is innocent and passive, aud removed at a distance from the owner and the sphere of his action, on the ground ofthe personal guilt ofthe owner, all the safeguards provided by the Con stitution for the protection of the citizen against punishment, without pre vious trial and conviction, and after being confronted by the witnesses against him, would be broken down and swept away." — (11 Wall., 319- 323.) The court having adjudged that the statute, in author izing suits in rem for the confiscation of the property of persons alleged to have been guilty of certain overt acts of treason, was vahd, proceedings under it were sustained, which, though taken ostensibly in the interest of the United States, were in many instances prosecuted for the * Sprague'a Decisions, 2nd vol., 150. 57 benefit of parties connected with the court in which they were had, or their immediate relatives or friends. A de plorable instance of the kind is stated in the opinion of the Court of Appeals in Virginia, in the case of Under wood vs. McVeigh.— (23 Grattan, 409.) There the dis trict judge ordered the appearance of the owner of the property seized, and his answer and claim to be stricken from the files of the court, because he was in the position of an alien enemy; and thereupon adjudged that the prop erty be confiscated and forfeited to the United States. At the sale under the decree thus rendered, the wife of the judge became the purch>, that it prohibits the denial or abridgment by any State of those fundamental privileges and immunities which of right belongto citizens of all free governments; aad with whicli the Decl.aration of In dependence proclaimed that all men were endowed by their Creator, and to secure which governments were instituted amoug men. These funda mental rights were secured, previous to the amendment, to citizens of each State in the other States, by the second section of the fourth article of the Constitution, whicli declares that ' the citizens of each State shall be entitled to all privileges and iramunities of citizens in the several States.' Among those privileges and immunities, it was never contended that jury duty or jury service was included. ''The third clause iu the first section of the amendment decLares that no State ' shall deprive any persou of life, liberty, or property without due process of law.' It will not be contended that this clause confers upon the citizen any right to serve as a juror in the State courts. It exists in the constitutions of nearly all the States, and is only an addi tional security agaiust arbitrary deprivation of life and liberty, and arbi trary spoliation of property. It nieaiis that neither can be taken, or the enjoyment thereof irapiiired, except in the course of the regular admin istration of the law in the established tribunals. The existence of this 189 clause in the amendment is to me a persuasive argument that those who framed it, aud the legislatures of the States whioh adopted it, never con templated that the prohibition was to be enforced in any other -way than through the judicial tribunals, as previous prohibitions upou the States had always been enforced. If Congress could, as an appropriate means to enforce the prohibition, prescribe criminal jirosecutious for its infrac tion against legislators, judges, and other officers of the States, it would be authorized to frarae a vast portion of their laws, for there are few sub jects upou which legislation can be had besides life, liberty, aud property. In determining what constitutes a deprivation of property, it might pre scribe the conditious upon which property shall be acquired and held ; and declare as to what subjects property rights shall exist. In deterrain ing what constitutes deprivation of liberty, it might prescribe iu what way aud by what means the liberty of the citizen sh.all be deemed pro tected. Iu prescribing punishraeirt for deprivation of life, it might pre scribe a code of criminal procedure. All this and more might be done if it ouce be admitted, as the court asserts in this case, that Congress can authorize a criminal prosecution for the infraction of the prohibitions. It cannot prescribe punishment without defining crime, aud, therefore, must give expression to its own views as to what constitutes jirotection 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 tlie 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 uo one will contend that equal protection to women, to children, to the aged, to aliens, can only be secured by allowing persons of the class to which they belong to act as jurors in cases affecting their interests. The equality of protection intended does not require that all persons shall be perraitted to partici pate in the government of the State and the adrainistration 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 distingui.shed frora tlio-se which are political, or arise from the form ofthe 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 persou and property, the prevention and redress of wrongs, and the enforcement of contracts ; it assures to every one the sarae rules of evidence and modes of procedure ; it allows no impediments to the acquisition of property and the pursuit of happiness, to -n'hich all are not subjected ; it suffers no other or greater burdens or charges to be laid upon one than such as are 190 equally borne by others; and in the administration of criminal j ustice it permits iio different or greater punishment to be imposed upon oue 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 governraent and its administration, as they stood previous to its adoption. It has no raore 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 aud personal. Political rights on the other hand are 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 ni.ay be always judicially enforced. The political rights which he may enjoy, such as holding office aud discharging a public trust, are qual ifled because their possession depends on his fitness, to be adjudged by those whom society has clothed with the elective authority. The thir teenth and fourteenth amendments were designed to secure the civil rights of all persons of every race, color, and condition, but they left to the States to deterraine to whora the possession of political power should be entrusted. This is raanifest from the fact that when it was desired to confer political power upon the newly-made citizens ofthe 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. "Thedoctriue ofthe districtjudge, forwhich the counsel contend, would lead to some singular results. If, when a colored person is accused of a criminal ofl'ence, 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 that the presence of such persons on the bench would be equally essenti.al, if the court should consist of more than one judge, as ill mauy cases it may ; and if it should consist of a single judge, that such protection would be impossible. A similar objection might be raised to the composition of any appellate court to which the ease, after ver dict, might be carried. " The positiou that in cases where the rights 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 iu such cases white persons will not he fair aud honest jurors. If this position be correct there ought not to be any white persous ou the jury where the interests of colored persons only .are iuvolved. That jury would uot be au honest or fair one, of which any ofits raembers should be governed iu his judgment by other consid erations than thc law and the evidence ; and that decision would hardly he considered just which should be reached hy a .sort of compromise, iu 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 affecting members of the colored race only the juries should be composed entirely of colored persons, and that the presiding judge should be ofthe same race. To this result the doctrine asserted by the District Court logically leads. The jury de medictate lingiix, anciently allowed in England for thc trial of an alien, was expressly authorized by statute probably as rauch because of the difference of language and customs be tween him and Englishmen, and the greater probability of his defence being raore fully understood, as because it would be heard in a more friendly spirit by jurors of his owu 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 case w.as 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 dela3'ed for the slow process ol' a trial in the court below, and a subsequent appeal, in case of convic tiou, to this court to be heard years hence. The Commonwealth of Vir ginia has represented to us that the services of her judicial officer are needed in her courts for 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 olfice. Those who regard the iudepeudeuce of the States in all their re served powers — and this includes the independence of their legislative, judicial, aud executive departments — as essential to the successful mainte nance of our form of government, canuot fail to view with the gravest apprehension for the future, the indictment, in a couit of the United States, of a judicial officer ofa State for the manner in whieh he has dis charged his duties under her laws, aud of which she makes no complaint. The proceeding is a gross offence to the State ; it is an attack uiion her sovereignty in matters over which she has never surrendered her juris diction. The doctrine which sustains 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 whicli he shall be subjected on conviction ; it may imprison him for life or punish him by removal from office. And if it cau make the exclusion of persons from jury service on account of race or color a criminal oft'ence, 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 them 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 mc, upon a theory as to what constitutes the equal protection of the laws, which is purely .speculative, not warranted by any experi-cjnce of the couutry, aud not in accordance with the understanding of the people as to the raeaning 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 comraents upon it. The following extracts frora a leading Republican paper of California express with much force the sentiments of thoughtful men of all parties : "THE LAST STEP TOWARDS CENTRALIZATION. From the Recohb-Usion of March 20th, 1880. "In the interpretation of the last judicial advance towards govern mental centralization, 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- wittinglj^ 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 Coraraonwealth of Virginia, petiouers for the writ of habeas corpus, raarks a decided forward step iu that modern policy of governmental metamor- pho.sis 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 governraent. So insidiously is this transformation proceeding, that it promises to have extended beyoud the possibility of check or retraceraent before the nation has clearly realized what it is that is being rlone. Twenty years a,go the perception of the reserved rights of thc St.ates was so much keener thau now that 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 bj' every party serf when a doc trine supposed to be partisan in its character is proraulgated. In fact the coueeruraent here is not partisan, but natioual. Because the Com monwealth of Virginia is a party to the proceeding, aud the political rights of negroes are in question, it has been hastily concluded that the whole matter was one of reoouBtruction, and that inasmuch as the court had ruled against the State, another defeat for the ' Secessionists ' was to be scored. It is neces Bary to point out that, though in truth reconstruc tion is here dealt with, it is not alone the techuical reconstruction of the Southern States, but the absolute reconstruction of the Union between the States that is uow iu 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 itin- 193 volves the question of the future of the whole Republic. It is here de liberately set fortli by the highest judicial authority that the constitu tional araendments give the federal government powers over the States which are incompatible with the maintenance of any independence what ever, and which not only facilitate but hasten the transforraation of the government frora 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 punish State officials for obeying State laws, and iu a word, to reduce all the States to the level of mere municipalities, existing only at the will and caprice of Congress. The tendency in this direction has, as we have often pointed out, increased continually since the close of the war. All history shows that the dift'usion of institutional self-governraent 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 governraent. This diffusion the American States enjoyed originally, aud itis this which is threatened. The danger lies not alone in the strongly marked centralizing policy of the Supreme Court, but ih the formidable support whicli the corrupt condition of politics gives to this movement. The greater a country becoraes, the denser its population, the raore complex its interests, the more necessary is it that the people everywhere should keep the levers of self-government iu their own hands. For the removal of authority to a distance always involves the weakening of responsibility and the encouragement qf corruption.'' The second jury case fi'om Virginia arose in this wise: Two colored persons in Virginia were indicted in a county court in that State for the crime of murder. The person alleged to have been murdered was a white man. On being arraigned the}' pleaded not guilty, and on their demand their trial was removed to the circuit court of the county. They there moved that the panel of jurors summoned, whicli was composed entirely of white persons, should be so modified as to allow one-third of the number to be per sons of the colored race. This motion was denied, as it satisfactorily appeared that the jurors had been drawn from the jury-box accorcUng to law. The prisoners then presented a petition for the re moval of the case to the United States Circuit Court, tilleg- ing, in substance, that the rights secured by the law pro viding for the equal civil rights of all citizens of the 13 194 United States were denied to them, inasmuch as their ap phcation for a mixed jury had been 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 raurder. Both obtained 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 ofthe 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 waiting 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 Rives, the dis trict judge, with the petition for reraoval presented to the State court, and prayed that the prosecution raight 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 raarshal of the district to take the prisoners into his cus tody, and to suraraon for their trial twenty-five jurors to attend at the next term. A writ of habeas corpus was ac cordingly issued, ancl pursuant to its comraand the prison ers were taken into the custody of the raarshal. There upon the Commonwealth of Virginia presented a petition to the Suprerae Court of the United States praying for a raandamus to be directed to the district judge, coraraand ing him to order the marshal to re-deliver the prisonere to her authorities, upon the ground that the judge in his proceedings had transcended the jurisdictioii of his court. 195 and exercised powers not vested in him. An order was accordingly issued to the judge to show cause why the writ should not issue. In his return he adraitted the facts stated, and justified his action on the ground that the re fusal of the State court to set aside the panel of jurors, and to give the prisoners a jury coraposed in part of their own race, was a denial to them of the equal protection of the laws, and brought their cases within the provision of the act of Congress authorizing a removal of criminal prose cutions to the federal courts. The attorney-general of Vir ginia, contending that the return was insufficient, moved that the writ might be issued as prayed. The application was argued by the same counsel who argued the first 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 fhe ground that the act of Congress, providing for the removal of criminal prosecutions from State to federal courts, was only intended for cases where tbe application was made before a trial or final hearing had commenced, and that the denial of rights for which a removal was authorized was such as resulted from the constitution or laws of the State and not such as might be 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 whenever a ruling is raade denying to the defendant the equal protection of the laws. -Judges Field and Clifibrd concurred in the judgraent- of the court that the prisoners should be re turned to the officers of Virginia from whose custody thc}'^ were taken ; that the prosecution against thera should be re manded to the State court from which it was removed, and that a mandamus to the district judge was an appropriate remedy to efi'ect those ends, but as they 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 thought proper to 196 state, in a separate opinion, the grounds of their concur rence. After discussing at length the right of the court to issue a mandamus in the case, and referring to the 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 persons within the j urisdiction 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 raade to appear? So far as the accused is concerned, the law requires him to state and verily the facts, and frora thera the court will deterraine 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 imiigiued he would gain by the reraoval. — (Texas vs. Gaines, 2 Woods, 344.) There raust be such a presentation of facts as to lead the court to the conclusion that the averraents of the accused are well founded. There are raany ways in which a person may be denied his rights, or be unable to enforce them in the tribunals of a State. The denial or ina bility may arise frora direct legislation, depriving him of their enjoy ment or the means of their enforcement, or discriminating against hira or the class, sect, or race to which he belongs. And it may arise frora popular prejudices, passions, or exciteraent, biasing the rainds of jurors and judges. Religious animosities, political controversies, antagonisms of race, and a raultitude 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 contemplated 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 reason of thera 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 irapartial 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 uot 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 my opinion, such as arises from legislative action of 197 the -State, as, for example, an act excluding colored persons frora being witnesses, raaking contracts, acquiring property, and the like. With re spect to obstacles to the enjoyment of rights arising from other causes, persous of the colored race raust take their chances of removing or pro viding against them with the rest ofthe community. " This conclusion is strengthened by the provisions ofthe 14th amend ment to the Constitution. The original civil rights aet was i)assed, it is true, before the adoption of that amendraent, but great doubt was ex pressed as to its validity, and to obtain anthority for sirailar legislaticra, and thus obviate the objections which had been raised to its first section, w.as one of the objects of the amendment. After its adoption the civil rights act was re-enacted, and upon the first section of that amendment it rests. That section is directed against the State. Its language is that ' no Slate shall make or enforce any law which shall abridge the jirivileges or iramunities of citizens of the United States ; nor shall any State deprive any per.son of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' As the State, in the administration of its goverumeiit, acts through its executive, legislative, and judicial departments, the inhibition applies to them. But the executive aud judicial departments only construe and enforce the laws of the State ; the inhibition, therefore, is in eff'ect against passing and enforcing any laws whicli are designed to accoraplish theends forbidden. If an executive or j udicial officer exercises power with which he is not invested by law, aud does unauthorized acts, the State is not responsible for thera. The action of the judicial officer in such a case, where the rights of a citizen under the laws of the United States are dis regarded, raay 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 sovereign or legislative capacity denies the rights invaded or refuses to allow their enforoemont It is merely the ordinary case of an erro neous ruling of au inferior tribunal. Nor cau the unauthorized action of an executive officer, impinging upou the rights of the citizen, be taken .TS 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 ofthe 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 questicn 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 aud petit, of the county are to be drawn. There is no restriction placed upon the county judge in selecting 198 thera, except that they shall be such as he shall think ' well qualifled to serve as jurors, beiug persons of sound judginent and free from legal ex ception,' The raode thus provided, properly carried out, cannot fail to secure corapetent jurors. Certain it is that no rights of the prisoners .are denied by this legislation, Tiie application to the State court, upon the refusal of which the peti.ion was presented, was for a venire coraposed of one- third of their race, a proceeding wholly inadraissible iu any jury sys tem which obtains in the several States, " From the return of the districtjudge it would seera that in his judg raent the presence of persons of the colored race on the jury is essential to secure to them ' the equal protection of the laws ; ' but how this con- clu.sion is reached is not apparent, except upon the general theory that such protection can only be afforded to parties when persons of the class to which 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 oue will pretend that they do uot enjoy the equal protection of the laws. If when a colored person is indicted for a crirainal offence it is es senti.al, 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 ; aud that if it should consist of ouly 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 fourteeuth 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 universality of the pro tection intended excludes auy such inference. Were this not so, aliens resident in the country, or teraporarily here, of whom there are many thousands in each State, would be without that equal protection which the amendraent 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 frora the State to the federal court is unauthorized by it ; and that the order of the circuit court to the raarshal to take the prisoners frora the custody of the State authorities is illegal and void. " The second objection of the Coramonwealth 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 199^ she alone h.as the right to inquire into its commission, and to punish the offender. Murder is not an offence against the United States, except wheu committed on an American vessel on the high seas, or in some port or haven without the jurisdiction of the State, or in the District of Co lurabia, or in the Territories, or at other places where the national gov ernment has exclusive jurisdiction. The offence within the limits ofa State, except where jurisdiction has been ceded to the United States, is as much beyond the jurisdiction of their courts as though it had been comraitted on another continent. The prosecution of the offence in such a case does not, therefore, arise under the Constitution and laws of the United States ; and the act of Congress which attempts to give the fed eral courts jurisdiction ofit is, to ray mind, a clear infraction ofthe Con stitution. That instrument defines and limits thejudiciai 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 Coustitutiou, laws, and trea ties of the United States, and to various controversies to which a State is a party ; but it does uot include in its enumeration controversies between a State and its own citizens. There can be no ground, therefore, for the assumption by a federal court of jurisdiction of off'ences against the laws of a State. The judicial power granted by the Constitution does not cover any such case or controversy. And whilst it is well settled that the exercise of the power granted raay 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 seera to be conclusive against the validity of the atterapted reraoval of the prosecution in this case from the State court The federal court could not in the first instance have taken jurisdiction ofthe offence charged, and summoned a grand jury to present an indict ment against the accused ; and if it could not have taken jurisdiction at first, it cannot do so upon a reraoval ofthe prosecution to it. The juris diction exercised upon the removal is original aud not appellate, as is soraetimes erroneously asserted, for, as stated by Chief Justice Marshall iu Marhury vs. Madison, already, cited, it is of the essence of appellate jurisdiction that it revises aud corrects proceedings already had. The reraoval is only an iudire'ct mode by which the federal court acquires original jurisdiction. — (Railroad Co. vs. Whitton, 13 Wall., 287.) " The Constitution, it is to be observed, in the distribution 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 seenied to have entertained great respect for the dignity of a State, which was to remain soyereign at least iu its reserved powers, notwithstanding the new government, and therefore 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 should be invoked only in its highest tribunal. It is ditflcult to believe that the wise men who sat in the convention which framed the Constitution and advocated its adoption, ever contemplated the possibility ofa State being required to assert its authority over offenders against its laws in other tribunals than those of its own creation, and least of all in au 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 ofthe 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- General have earnestly defended. If a criminal prosecution of an offen der ag.ainst the laws of a State can be transferred to a federal court, what officer 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 tor 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 the governor release from the judgment of a federal court? These and other questions 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 well as in the progress of a civil actiou, a question arise as to any m.atter under the Constitution and la-\vs of the United States, upon which the defend- 7. 267 has been held to be null for interfering with the commercial power of Congress, as in Brown vs. Maryland,'* the Tonnage Tax Cases,! and Welton vs. Missouri,! the legislation created, in the way of tax, license, or condi tion, a direct burden upon coramerce, or in sorae way directly interfered with its freedora. In the present case no such operation can be ascribed to the statute of Indiana. That statute iraposes no tax, prescribes no duty, and in no respect interferes with auy regulations for the navigation and use of vessels. It only declares a general principle respecting the li ability of all persons within the jurisdictiou of the State for torts result ing in the death of parties injured. And in the application of the prin ciple it makes no difference where the injury complained of occurred in the State, whether on land or on water. General legislation ofthis kind prescribing the liabilities or duties of citizens ofa State, without distinc tion as to pursuit or calling, is not open to any valid objection because it may affect persons engaged in foreign or inter-state commerce. Ob jection might with equal propriety be urged against legislation pre scribing the form iu which contracts .shall be authenticated, or property descend or be distributed on the death of its owner, because apxilicable to the contracts or estates of persons engaged in such commerce. In cou- ferring upon Congress the regulation of comraerce, it was uever intended to cut the States off frora legislating ou all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation in a great variety of ways may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution. " It is true that the commercial power conferred by the Constitution is one without limitation. It authorizes legislation with respect to all the subjects of foreign and inter-state coraraerce, the persous engaged iu it, and the instruraents by which it is carried on. And legislation has largely dealt, so far as coraraerce by water is concerned, with the instru ments of that commerce. It has^erabraced the whole subject of naviga tion, prescribed what shall constitute American vessels, and by whom they shall be navigated ; how the.y shall be registered or enrolled and li censed ; to what tonnage, hospital, and other dues they shall be sub jected ; what rules they shall obey in passing each other ; and what pro vision their owners shall make for the health, safety, and comfort of their crews. Since steam has been applied to the propulsion of vessels, legis lation has erabraced an infinite variety of further details to guard against accident and consequent loss of life. " The power to prescribe these and sirailar regulations necessarily in volves the right to declare the liability which shall follow their infrac tion. Whatever, therefore. Congress determines, either as to a regulation or the liability for its infringement, is exclusive of State .authority. But with reference to a great variety of raatters touching the rights and lia- * 12 ¦Wheat, 425. f 12 Wallace, 204. J 1st Otto, 275. 26^8 bilities of persons engaged in commerce, either as owners or navigators of vessels, the laws of Congress are silent, and the laws of the State gov ern. The rules for the acquisition of property by persons engaged in navigation, and for its transfer and descent, are, with some exceptions, those prescribed by the .State to which the vessels belong. And it may be said generally that the legislation of a State, not directed against com merce or any of its regulations, but relating to the rights, duties, and li abilities of citizens, and only indirectly and remotely affecting the opera tions of commerce, is of obligatory force upon citizens within its territo rial jurisdiction, whether on laud or water, or engaged iu commerce, for eign or inter-state, or in any other pursuit In our judgment the statute of Indiana falls under this class. Until Congress, therefore, makes some regulation touching the liability of parties for marine torts resulting in the death of the persous injured, we are of opinion that the statute of Indiana applies, giving a right of action in such cases to the personal rep resentatives of the deceased, and that, as thus applied, it constitutes no encroachment upou the commercial power of Congress."* ' But the most elaborate consideration of the commercial clause of the Constitution, and the extent to which the power of Congress is exclusive of State authority, found among the recent decisions of the Court, is contained in an opinion rendered at the last term, in the case of County of MobUe vs. KimbaU.— (12 Otto., 691.) In February, 1867, the Legislature of Alabama passed an act to " provide for the improvement of the river, bay, and harbor of Mobile." It created a board of commis sioners for the iraproveraent of the river, harbor, and bay of Mobile, and required the president of the Commis sioners of Revenue of Mobile County to issue bonds to the amount of one million dollars, and deliver them, when called for, to the board, to meet the expenses of the work directed. The board was authorized to apply the bonds or their proceeds to the cleaning out, deepening, and widening of the river, harbor, and bay, or any pVt thereof, or to the construction of an artificial harbor in addition to such improvements. In -June, 1872, the board of comraissioners entered into a contract with Messrs. Kimball & Slaughter to dredge * United States vs. Bevans, 3 Wheat., 337. 269 and cut a channel through a designated bar in the bay, of a specified width, depth, and distance, at a named price per cubic yard of material excavated and removed, and fo receive in payment the bonds of the county issued nnder the act mentioned. In pursuance of this contract, the work agreed upon was at once undertaken by Kimball & Slaughter, and wa.s corapleted in March, 1873, and ac cepted by the board through its authorized engineer. The araount due to thera was paid, witli the exception of six bonds, and to obtain the delivery of those six, or payraent of their value, suit was brought against the county. Araong other defences to the suit, it was contended that the act of the State, under which the work was done, conflicted with the comraerclal power vested in Congress, and was, there fore, void. To this objection the Court, speaking through Judge Field, said as follows : "The objection that the law of the State, in authorizing the improve ment of the harbor of Mobile, trenches upon the coraraerclal power of Congress, assumes an exclusion of State authority from all subjects in relation to which that power raay be exercised not warranted by the adjudications of this Court, notwithstanding the strong expressions used by sorae of its judges. That power -is indeed without liraitation. It authorizes Congress to prescribe the conditions upon which coramerce in all its forms shall be conducted between our citizens and the citizens or subjects of other countries, and betvveen the citizens of the several States, and to adopt measures to proraote its growth aud insure its safety. And as commerce embraces navigation, the improvement of harbors and hays along our coast, aud of navigable rivers within the States connecting with them, falls within the power. The subjects, indeed, upon which Congress can act under this power are of infinite variety, requiring for their successful raanageraent different pitas or raodes of treatment. Some of thera are national in their character, and adrait and require uni formity of regulation, affecting alike all the States ; others are local, or are mere aids to commerce, and cau only be properly regulated by pro visions adapted to their special circumstances and localities. Of the former class may be mentioned all that portion of commerce with for eign countries or between the States which consists in the transportation, purchase, sale, aud exchange of commodities. Here there can, of neces sity, be only one systera or plan of regulations, and that Congress alone can prescribe. Its non-action in such cases, with respect to any particu lar coraraodity or mode of transportation, is a declaration of its purpose that the coramerce in that commodity or by that means of transportation 270 shall be free. There would otherwise be no security against conflicting regulations of different States, each discrirainatiug in favor of its own products and citizens aud against the products and citizens of other States. And it is a raatter of public history that the object of vesting in Congress the power to regulate coraraerce with foreign nations and araong the States was to insure uniforraity of regulation against conflict ing and discriminating State legislation. "Ofthe class of subjects local in their nature, or intended, as mere aids to commerce, which are best provided for by special regulations, may be mentioned harbor pilotage, buoys, and beacons to guide mariners to the proper channel in which to' direct their vessels. ¦" The rules to govern harbor pilotage must depend in a great degree upon the peculiarities of the ports where they are to be enforced. It has been found by experience that skill and efficiency on the part of local pilots is best secured by leaving this subject principally to the control of the States. Their authority to act upon the matter and regulate the whole subject, in the absence of legislation by Congress, has been recognized hy this Court in repeated instances. In Cooley vs. The Board of Wardens of the Port of Philadelphia, the Court refers to the act of CongTcss of 1789, declaring that pilots should continue to be regulated by such laws as the States raight respectively thereafter enact for that purpose; and observes that ' it raanifests the understanding of Congress, at the outset of the government, that thenature of this subject is not such as to require its exclusive legislation. The practice of the States and of the national gov- eriiraeut has been in conformity \vith this declaration, from the origin of the national government to this time ; and the nature of the subjeet, when e.xamined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of reg ulation, dr.awii frora local knowledge and experience, and conformed to local wants.'— (12 How., p. 320.) " Buoys aud beacons are iraportant aids, and sometimes are essential to the safe navigation of vessels, iu indicating the channel to be followed at the entrance of harbors and in rivers ; and their establishraent by Con gress is undoubtedly within its coraraerclal power. But it would be ex tending that po-\ver, to the exclusion of State authority, to au unreason able degree, to hold that, whilst it reraained unexercised upon this sub ject, it would be unlawful for the State to provide the buoys and beacons required for the safe navigation of its harbors and rivers, and in case of their destruction, by storms or otherwise, it could not teraporarily sup ply their places until Congress could act in the matter and provide for their re-establishment. Th.at power which every State possesses, some times termed its police power, by which it legislates for the protection of the lives, health, and property of its people, would justify measures of this kind. " The uniforraity of coniraercial regulations, which the grant to Con gress was designed to secure against conflicting State provisions, was nec- 271 essarily intended only for cases where such uniformity is practicable. Where, frora its nature or the sphere of its operation, the subject is local and liraited, special regulations adapted to the immediate locality could only have been contemplated. State actiou upon such subjects can constitute no interference -ivith the commercial power of Con gress; for when that acts, the State authority is superseded. Inaction of Congress upon these subjects of a local n.ature or operation, unlike 'its inaction upon matters affecting all the States aud requiring uni formity of regulation, is uot to be taken as a declaration that nothing shall be done with respect to thera, but is rather to be deeraed a declara tion that, for the tirae being, aud until it sees fit to act, they may be reg ulated by State authority. " The iraproveraent of harbors, bays, and navigable rivers within the States falls withiu this last category of cases. The couttol of Congress over thein is to insure freedom iu their navigation, so far as that is essen tial to the exercise of its commercial power. Such freedom is not en croached upon by the reraoval of obstructions to their navigability, or by other legitiraate iraproveraent. The States have as full coutrol over their purely internal commerce as Congress has over coramerce among the sev eral States and with foreign nations ; and to proraote the growth of that internal coramerce and insure its safety, they have an undoubted right to remove obstructions from their harbors and rivers, deepen their channels, aud iraprove them generally, if they do not impair their free navigation as permitted under the laws of the United States, or defeat any system for the improvement of their navigation provided by the general govern ment. Legislation of the States for the purposes and within the limits mentioned do not infringe upon the commercial power of Congress; and so we hold thatthe act of the, State of Alabama, of February 16, 1867, to provide for the 'improvement of the river, bay, and harbor of Mobile' is not invalid. "There have been, itis true, expressions by individual judges of this Court going to the length that the mere grant of the commercial power, anterior to any action of Congress under it, is exclusive of all State au thority ; but there has been no adj udication of the Court to that effect In the opinion ofthe Court in Gibbons vs. Ogdeu, the flrst and leading case upon the construction of the Constitution, and which opinion is recog nized as one ofthe ablest ofthe great Chief Justice then presiding, there are several expres,sions which would indicate, aud his general reasoning would tend to the sarae conclusion, that in his judgment the grant ofthe commercial power was of itself sufficient to exclude all action of the States ; aud it is upon them that the advocates of the exclusive theory chiefly rely ; and yet he takes care to observe that the question was not involved in the decision required by that ease. ' In discussing the ques tion whether this power is still in the States,' he observes that ' in the case under consideration we may dismiss from it the inquiry, whether it is surrendered by the mere grant to Congress, or is retained until Con- 272 gress shall exercise the power. We may dismiss that inquiry because, it has been exercised, and the regulations which Congress deeraed it pro per to make are now in full operation. The sole question is, can a State regulate commerce with foreign nations and among the several States while Congress is regulating it?' Andthe deci.sion was necessarily re stricted by the limitations of the question presented. It determined thatthe gr.ant of power by the Constitution, accompanied by legislation under it, operated as an inhibition upon the States from interfering with the suViject of that legislation. The acts of New York giving to Living ston and Fulton an exclusive right to navigate all the waters within its jurisdiction, with vessels propelled by steara, for a certain period, being in collision with the laws of Congress regulating the coasting trade, were, therefore, adjudged to be unconstitutional. This judgraent was rendered in 1824.— (9 Wheat, 1.) Sorae years later (1829) the case of Wilson vs. Blackbird Creek Marsh Corapany came before the Court. There, a law of Delaware authorizing the construction ofa bridge over one of its small navigable streams, which obstructed the navigation of the stream, was held to be repugnant to the coniraercial power of Congress. The Court, Chief Justice Marshall delivering its opinion, placed its decision entirely upon the absence of any congressional legislation on the subject. Its lauguage was : ' If Congress had passed any act which bore upon the case — any act in execution of the power to regulate commerce, the object of which was to coutrol State legislation over these sraall navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle aud Southern States, we should not feel much difficulty in saying that a State law coining in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repug nancy to the power to regulate coramerce with foreign nations and among the several States — a power which has not been so exercised as to affect the question.'— (2 Peters, 283.) " In the License Cases, which were before the Court in 1847, there was great diversity of views in the opinions of the different judges upon the operation of the grant of the coraraerclal power of Congress in the absence of congressional legislation. Extrerae doctrines upon both sides of the question were asserted by some of the judges, but the decision reached, so far as it can be viewed as determining .any question of construction, was confirmatory of the doctrine that legislation of Congress is esseutial to prohibit the action ofthe States upon the subjects there considered. " But in 1851, in the case of Cooley vs. The Wardens of the Port of Phil adelphia, to which we have already referred, the attention of the Court appears to have been for the first time drawn to the varying and differ ent regulations required by the different subjects upon which Congress may legislate under the commercial power ; and from this consideration the conclusion was reached that, as some of these subjects are national in their nature, admitting of one uniforra plan or systera of regulation, 273 whilst others, being local in their nature or operation, cau be best regu lated by the States, the exclusiveness of the power in any case is to be deterrained raore by the nature of the subject upou which it is to operate than by the terms of the grant, which, though general, are not accompa nied by any express prohibition to the exercise of the power by the States. The decision was confined to the validit5' 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 whicli had so long divided the judges. The views expressed in the opinion delivered are followed in Gilraan 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 uniforra rules and national legislation, and that others can ' be best regulated by rules and provisions suggested by the varying circurastances of different localities, and limited in their operation to such localities re spectively,' says, ' whether the power in any giveu case is vested exclu sively in the general governraent, 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 nuraerous 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 araong the States, strictly considered, consists iu inter course and traffic, including in these terras navigation and the trans portation and transit of persons and property as well as the purchase, sale, and exchange of coraraodities. For the regulation of commerce as thus defined there can be only one systera 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 upou it by separate States is not, therefore, perraissible Language aflSrming the exclusiveness of the o-rant of power over comraerce as thus defined may not be inaccurate, when it would be so if applied to legislation upon subjects which are raerely auxiliary to coramerce.'' The Powee of Taxation by the General and State Governments, and some of its Limitations. It has been settled by numerous decisions of the Su preme Court of the United States that the obhgations and instrumentalities of the general government, that is, 274 the means by which its functions are executed, are not subject to taxation by the States. In McCullough vs. Maryland, (4 Wheaton, 432,) de cided in 1819, — which is the leading case on this sub ject, — a statute of Maryland iraposing a tax upon a branch of the Bank of the United States established at Balti more, in that State, was considered. The Court 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 Governraent. " If the States," said Chief -Justice Marshall, " raay tax one instruraent eraployed by the government in the execution of its pow ers, they may tax any and every other instrument. They may tax the mail; they raay tax the raint; they raay tax patent rights; thoy may tax the papers of the custom house, they may tax judicial process; they raay tax all the means employed by the government to an excess which would defeat aU 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 irapose it existed with the States, it was a right which in its nature acknowledged no hmits, and might be exercised to the serious erabarrassraent of the Federal Government; that such a right was, therefore, inconsistent with the supremacy of that government in the powers granted to it. In Dobbins vs. The Commissioners of Erie County, (16 Peters, 435,) decided ia 1842, a Liw of Pennsylvania, authorizing au assessment upon all " offices and positions of profit," was held invaUd 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 him the right to the compensation in its entireness, and any act of a State imposing a tax upon the office in diminishing its recompense confiicts with that law. The principle involved ih these decisions, that the means and instruraentalities by which the general gov ernraent executes its powers cannot be embarrassed and burdened by the action ofthe States, is equally applicable to prevent the raeans and instruraentalities ofthe govern ments of the States, essential to the execution of their re served powers, frora being in like raanner embarrassed and burdened by the general governinent, 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 salary 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 corape 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. The Coramissioners of Erie County, the Coui't, speak ing through -Judge Nelson, 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 ofthe States depending upon their reserved powers, for like reasons, equally exempt frora federal taxation ? Their unimpaired existence in the one case is as essential as in the other. It is 19 276 admitted that there is no express provision in the Constitution that pro hibits the general government from taxing the means and instrumentali ties of the States, nor is there any prohibiting the States frora taxing the raeans and instrumentalities of that government. In both cases the ex emption rests upon necessary implication, and is upheld by the great law of self-preservation ; as any government, whose means employed in conducting its operations, if subject to the control of another and distinct government, can exist only at the mercy of that government." In addition to this restriction upon both governments in the power of taxation, — that it cannot be exercised so as to impair fhe existence and efficiency of the other — there is a further restriction necessarily arising from the limits of their territorial jurisdiction. Neither 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 Marshal] : " AU 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 Suprerae 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 WaU., 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 fax of five per cent, upon every dollar of interest, and to pay over the same semi-annually to the State treasurer for the use of the Coraraonwealth. In 1848 the Legislature of Ohio incorporated the Cleve land, PainesviUe and Ashtabula Railroad Company, and authorized it to construct a railroad from the city of Cleve land, in that State, to the hne of the State of Pennsylva nia. Under this act" and its supplement, passed in 1850, the road was constructed. In 1854 the Legislature of Penn sylvania authorized the company to construct a road from Erie, in that State, to the State line of Ohio, so as to con nect with the road from Cleveland, and to purchase a road. already constructed between those places. This road was constructed, or the one constructed was purchased, so that the two roads efi'ected a continuous line between the cities of Cleveland and Erie — a distance of ninety-five and one-half miles, twenty-five of which were in Pennsylva nia. The company, so far as it acted in Pennsylvania under the authority of an act of its Legislature, was held to be a corporation in fhat State and subject to its laws for the taxation of incorporated companies, though there was only one board of directors for both companies. In 1868 the funded debt of the company amounted to two and one-half millions of dollars, and was in bonds secured by three mortgages, — one for five hundred thousand dol lars, made in 1854; one for a million of dollars, made in 1859, and one for a million dollars, made in 1867. Each of these was upon the entire road from Erie, in Pennsylvania, fo Cleveland, in Ohio, including the right- of-way and all the buildings and other property of every kind connected with the road. The principal and interest ofthe bonds first issued were payable in Philadelphia. The principal and interest of the other bonds were payable in New York. All of them were executed and delivered in Cleveland, Ohio, and nearly all of thera were issued, and were afterwards held by non-residents of Pennsyl vania and citizens of other States. Tbe officers of the State of Pennsylvania endeavored to enforce the tax ira posed by the act of 1868 upon the interest on these bonds, having first apportioned it accorcUng to the length of the road, assigning to the part in the State of Pennsylvania an amount in proportion to the whole indebtedness which that part bore to the whole road. The validity of the tax, so far as it applied to the interest on the bonds made pay able out of the State, issued to ancf held by non -residents 278 of the State and citizens of other States, was contested in the courts of the State, first in the Common Pleas and then in thc Supreme Court, and being by them sustained, was brought to the consideration of the Supreme Court of the United States. In denying the valichty of the tax, that Court, speaking through -Judge Field, said as follows: " The power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects -within the jurisdiction of the State. These subjects are persons, property, and business. Whatever forra taxation raay assume, whether as duties, imposts, excises, or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though, as applied to thera, the taxation may be exercised in a great variety of ways. It may touch property in every shape, in its nat ural conditiou, in its manufactured form, and in its various transmuta tions ; and the amount of the taxation may be deterrained by the value of the property, or its use, or its capacity, or its productiveness. It raay touch business in the almost infinite forms in which it is conducted, in professions, in commerce, iu manufactures, and in transportation. Un less restrained by provisions of the Federal Constitution, the power of the State as to the mode, form, and extent of taxation is unlimited, where the subjects to whieh it applies are within her jurisdiction. Corpora tions may be taxed like natural persons upon their property and business ; but debts owing by corporations, like debts owing by individuals, are not property of the debtors in any sense. They are obligations of the debtors and only possess value in the hands of the creditors. With them they are property, and in their hands they may be taxed. To call debts pro perty of the debtors, is simply to misuse terms. All the property there can be in the nature of things in debts of corporatiops, belongs to the creditors to whom they are payable, and follows their domicile wherever that raay be. Their debts can have no locality separate from the parties to whora they are due. This principle might be stated in many different ways, and supported by citations from nuraerous adjudications; but no number of authorities and no forms of expression could add anything to its obvious truth, which is recognized upon its simple statement. " The bonds issued by the railroiid company in this case are undoubt edly property, but property in the hands of the holders, not property of the obligors. So far as they are held by non-residents of the State, they are property beyond the jurisdictiou of the State. The law which re quires the treasurer of the company to retain five per cent, of the interest due to the non-resident bondholder is not, therefore, a legiti mate exercise of the taxing power. It is a law which interferes between the company and the bondholder, and under the pretence of levying a tax coraraands the company to withhold a portion of the stipu lated interest and pay it over to the State, It is a law which thus iin- 279 pairs the obligation ofa contract between the parties. The obligation of a contract depends upon its terms and the means which the law in ex istence at the time affords for its enforceraent. A law which alters the terms of a contract by iraposing new conditions, or dispensing with those expressed, is a law which impairs its obligations, for, as stated on auother occasion, such a law relieves the parties from the moral duty of perform ing the original stipulations of the contract, and it prevents their legal enforcement The Act of Pennsylvania of May 1st, 1868, falls within this description. It directs the treasurer of every incorporated company to retain from the interest stipulated to its bondholders flve per cent. upon every dollar and pay it into the treasury of the Coraraonwealth. It thus sanctions and coraraands a disregard ofthe express provisions ofthe contracts between the company and its creditors. It is only one of raany cases where, under the name of taxation, an oppressive exaction is made without constitutional warrant, amounting to little less than an arbitrary seizure of private property. It is, in fact, a forced contribution levied upon property held in other States, where it is subjected, or may be sub jected, to taxation upon an estimate ofits full value." " The case of Maltby vs. Tlie Beading and Columbia Railroad Company, decided by the Supreme Court of Pennsylvania in 1866, was referred to by the Coraraon Pleas in support of its ruling, aud is relied upon by counsel in support of the tax in question. The decision in that case does go to the full extent claimed, and holds that bonds of corporations held by non-residents are taxable in that State. But it is evident, from a pe rusal of the opinion of the Court, that the decision proceeded upon the idea that the bond of the non-resident was itself property in the State, because secured by mortgage on property there. ' It is undoubtedly true,' said the Court, 'that the Legislature of Pennsylvania cannot im pose a personal tax upon the citizen of another State, but the constant practice is to tax property within our jurisdiction which belongs to non residents.' Aud again : ' There must be jurisdiction over either the prop erty or the person of the owner, else the power cannot be exercised ; but when the property is within our jurisdiction, .and enjoys the protection of our State government, it is justly taxable, and it is of no moment that the owner, who is required to pay the tax, resides elsewhere.' There is no doubt of the correctness of these views. But the Court then proceeds to state that the principle of taxation as the correlative of protection is as applicable to a non-resident as to a resident ; that the loan to the non resident is made valuable by the franchises which the company derived from the Commonwealth, and as an investraent rests upon State author ity, aud therefore ought to contribute to the support of the State gov ernment. It also adds that though the loan is for some purposes subject to the law of the domicile of the holder, ' yet, in a very high sense,' it is also property in Pennsylvania, observing in support of this position that the holder of a bond of the company could not enforce it except in that State, and that the mortgage given for its security was upon property aud 280 franchises within her jurisdiction. The amount of all which is this : that the State which creates and protects a corporatiou ought to have the right to tax the loans negotiated by it, though taken and held by non residents, a proposition which it is unnecessary to controvert. The le gality of a tax of that kind would not be questioned if, in the charter of the company, the imposition of the tax were authorized, aud in the bonds ofthe corapany, or its certificates of loau, the liability ofthe loan to tax ation were stated. The tax in that case would be in the nature of a li cense tax for negotiating the loan, for, in whatever manner made payable, it would ultimately tiill on the company as a conditiou of effecting the loan, and parties contracting with the company would provide for it hy proper stipulations. But there is nothing in the observations of the Court, nor is there anything in the opinion, which shows that the bond of the non-resident was property in the State, or that the non-resident had any property iu the State which was subject to taxation, withiu the principles laid down by the Court itself, which we have cited. The property mortgaged belonged entirely to the coinpany, and so far as it ¦v\?as situated in Pennsylvania was taxable there. If taxation is the cor relative of protection, the taxes which it there jiaid were the correlative for the protection which it there received. And neither the taxation of the property nor its protection was augmented or dirainished by the fact that the corporatiou was in debt or free from debt. The property in no sense belonged to the non-resident bondholder or to the mortgagee of the company. The mortgage transferred no title ; it created ouly a lien upon the property. Though in form a couvey.ance, it was both at law and iu equity a mere security for the debt. That such is the nature of a mort gage in Penn.sylvania has been frequently ruled by her highest Court. In Witmer's Appeal the Court said : ' The mortgagee has no estate in the laud, any more thau the judgment creditor. Bnth have liens upou it, aud no more than liens.' And in that State all possible interests in lauds, whether vested or contingent, are subject to levy and sale on execution ; yet it has been held, on the ground that a mortgagee has no estate in the lands, that the mortgaged premises cannot be taken in e.xecution for his debt. . . . . Such being the character of a mortgage in Penn sylvania, it cannot be said, as was justly observed by counsel, that the non-resident holder and owner of a bond, secured by a mortgage in that State, owns any real estate there. A mortgage being there a mere chose in action, it only confers upon the holder, or the party for whose benefit the mortgage is given, a right to proceed against the property mortgaged, upon a given contingency, to enforce, by its sale, the payment of his de mand. This right has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the State when held by a resi dent therein, but when held by a nou-resident, it is as much beyond the jurisdiction of the State as the person of the owner. " It is undoubtedly true that the actual situs of personal property, which has a visible and tangible existence, aud not the domicile of its 281 owner, will, in many cases, determine the State in whicli it may be taxed. The same thing is true of public securities, consisting of State bonds and bonds of municipal bodies, and circulating notes of banking institutions ; the former, by general usage, have acquired the character of and are treated as property in the place where they are found, though removed from the domicile of the owner; the latter are treated and p.ass as money wherever they are. But other personal property, consisting of bonds, raortgages, and debts generally, has no situs independent of the domicile of the owner, and certainly can have none where the instru ments, as iu the present ease, constituting the evidences of debt, are not separated from the possession of the owners. " Cases were cited by counsel ou the argument from the decisions of the highest Courts of several States, whieh accord with the views we have expressed. In Davenport rs. The 3Iississippi and Missouri Eailroad Company (12 Iowa, 539), the question arose before the Supreme Court of Iowa, whether mortgages on property in that State held by non-resideuts could be taxed under a law which provided that all 'property, real and personal, withiu the State, with certain exceptions not material to the present case, should be subject to taxation, and the Court said : ' Both in law and equity the mortgagee has only a chattel interest. It is true that the situs of the property mortgaged is within the jurisdiction ofthe State, but the mortgage itself, being persou.al property, a chose in action, attaches to the person of the owner. It is agreed by the parties that the owners and holders of the mortgages are non-residents of the State. If so, aud the property of the mortgage attaches to the person of the owner, it follows that these mortgages are not property withiu the State, and if not, they are not the subject of taxation.' " Sorae adjudications in the Supreme Court of Pennsylvania were also cited on the argument, which appear to recognize doctrines inconsistent with that announced in Maltby vs. Reading and Columbia Railroad Com pany, particularly^the case of McKeen vs. The County of Northampton, and the case of Short's Estate, but we do not deem it necessary to pursue the matter further. We are clear that the tax cannot be sustained ; that the bonds, being held hy non-residents ofthe State, are only property in their hands, and that they are thus beyond the jurisdiction of the taxing power of the State. Even where the bonds are held by residents of the .State, the retention by the company of a portion of the stipulated interest can only be sustained as a raode of collecting a tax upon that species of prop erty in the State. When the proiierty is out of the State, there can then be no tax upou it for which the interest can be retained. The tax laws of Pennsylvania can have no extra-territorial operation, nor can any law of that State, inconsistent with the terms of a contract made with or pay able to parties out of the State, have any effect upou the contract whilst it is in the hands of such parties or other non-residents. The extra-ter ritorial invalidity of State laws discharging a debtor from his coutracts with citizens of other States, even though made and payable in the State 282 after the passage of such laws, h^s been judicially determined by this Court. A like invalidity ranst, on similar grounds, attend State legisla tion which seeks to change the obligation of such contracts in any par ticular, and on strpnger grounds where the contracts are made and paya ble out of the State." There are other Umitations upon the power of taxation by the States imposed by their respective constitutions, de signed to secure, as far as practicable, an equal distribution of the burdens of government, by requiring a uniform rate of taxation upon property of the same kind, and a uniform mode of assessment or appraisement of value. Of these it is not the purpose of this narrative to speak. There is, however, in the Fourteeuth Amendment a clause which, according to tlie force attributed to it by -Judge Field, may yet be invoked to prevent the iraposition of unequal taxation by the States, of which there are so many daily complaints throughout the country — the clause whicli declares that no State shall " denj^ to any per.son, within its jurisdiction, the equal protection of the laws." In his opinion in the Virginia -Jury Cases, he contended that the prohibitions of the Fourteenth Amendment being against the State, can only be properly enforced through the action of the judiciary, in like manner as the prohibition against the passage ofa bill of attainder or an ex post facto law, or a law irapairing the obligation of contracts ; — in other words, that a law of a State can be annulled only through the judiciary, and not by criminal proceedings against its legislators, judges, and other officers. He also contended that the clause raentioned applies only to civil rights and not to political or social rights; and yet he gave to it an iraraense force for the protection of private rights against arbitrary and unequal legislation of the States. His language is as follows : " 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 sarae rules of evidence aud modes of procedure ; it allows no impedi- 283 ments 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 equally borne by others ; and in the ad ministration of criminal justice it permits no different or greater punish ment to be iraposed upon one than such as is prescribed to all for like offences." The clause was intended to secure equality of right to every person within the States, and this necessaril}^ implies that he shall not be subjected to any greater burdens than his fellows. If one, therefore, is arbitrarily taxed by a law of a State at five per cent, on tbe value of his property, while others are taxed on the value of the same kind of property only one per cent., or if he be thus ttixed because he pursues one caUing or trade, or because he is bltick or brown or yellow in his color, whilst those of another pui-- suit or of a dift'erent color are taxed at a lower rate, he is subjected to an unequal share of the public burdens and raay justly invoke the protection of the araendment a.gainst the action of the State. In People vs. Weaver, where equality in taxation was disregarded by a law of the State xif New York in the face of a law of Congress, the Suprerae Court declared the State law invalid. — (10 Otto, 539.) Up'on the same prin ciple a State law sanctioning the imposition of unequal burdens must fall before the constitutional amendment. The Trust Character of Directors of Corporations. In the preceding pages, from 216 to 255 inclusive, a statement is made of several opinions of Judge Field re specting the powers and liabilities of corporations. Dur ing the past terra, in the case of Wardell vs. The Union Pacific Railroad Corapany, he delivered another opinipn touching the obligations of the directors of such bodies and the fiduciary chtiracter of their-office. The ctise arose in this way. The road of the Union Pacific Company passes for its entire length, from Omaha, on the Missouri 284 River, to Ogden, in Utah, a distance of over one thousand miles, through a country almost destitute of timber fit for fuel. During its construction, however, large deposits of coal, of excellent quality and easily worked, were discov ered iu land along its hne from which abundant supplies could be obtained for tbe use of the company. The en gineers, appointed to survey the route for the road, re- jiorted fhe existence of such deposits. In -June, 1868, one Thomas Wardell made explorations for coal in the lands of the company, and reported to its managers the inforniH- tion which he had thus acquired, which was confirma tory of that previouslj' obtained from the engineers. A contract was then entered into between the company and himself and one Godfrey, with whom he had become associated in business, to furnish the company with coal required for its use. This contract, which is dated -July 16th, 1868, stipulated for exorbitant prices; and by it all the coal lands ofthe company were leased to Wardell and Godfrey for fifteen years. They immediately entered upou the execution ofthe contract aud began work on several mines along the line of the road. Soon afterwards God frey transferred his interest in the contract to Wardell. A new company was then formed called the Wj'oming Coal and Alining Company, of which the directors of the Union Pacific Railroad Company became the chief shareholders. To this company Wardell assigned his contract without any consideration. The company continued the execution of the contract, Wardell ttcting as its superintendent, sec retary, and general manager, and delivered coal as needed fo the railroad corapany up to March, 1874, when the of ficers and agents of that company, by order of its directors, took forcible possession of the raines and of the books, papers, tools, and other personal property ofthe coal com pany, which they continued to hold and use. Some months after this the two companies, through their direc tors, made a settlement of their matters of difference, by which the contract of July 16th, 1868, was rescinded 285 and oue million dollars was aUowed to the coal com pany. Of this million the railroad company set apart and tendered to Wardell one hundred thousand dollars for his share. He, not being satisiied with the settle ment, brought a suit, in his own narae, against the rail road company, alleging as a reason that a majority ofthe directors and stockholders of the coal company were also directors and stockholders of the railroad company, and that therefore he could obtain no relief by a suit in the name of tbe coal coinpany. He prayed that an iiccount might be taken of the amount due for the coal delivered to the railroad company, for drawback on freight from the date of the contract, for coal extracted from the mines since their seizure and for the property of the coal company taken, and for the danniges arising from the attempted abrogation of the contract. To this suit the railroad company set up, amongother things, that the con tract of July 16th, 1868, was a fraud upon the company, that it was made on the part of the executive committee of its board of directors, a majority of whom were, by pre vious ttgreeinent, to be equaUy interested with the con tractor.-;, and for that reason its terms were made so favor able to thera and unfavorable to the company, as to enable the former to raake large gains at the expense of the lat ter; and that the organization of the coal company was a mere device to enable those directors to participate in the jjrofits; and also that a settleraent had been raade betAveen the two coinpanies.of all their transactions, ' The court below held that the contract of -July 16,1868, was a fraud upon the company, but that the complainant was, iipart from it, entitled to sorae corapensation for his tirae, skill, and services while engaged in taking out the coal, with the return of the raoney actually invested and compensation for its use, the amount to be credited with what he had actually received out of the business; and that at his election he could have an accounting upon that basis or take tbe one hundred thousand dollars tendered 286 by the company. Of the alternatives thus ofi'ered he elected to take the one hundred thousand dollars instead of having the accounting mentioned, but appealed to the Supreme Court frora the decree, contending that the con tract itself was valid, and that he was entitled to an ac counting upon that hypothesis, but the judgraent was there affirraed. Of the contract and of the obligations of the di rectors of the railroad company, that Court, speaking through -Judge Field, said as follows : " The evidence in the case justifies the conclusion of the court below as to the nature of the contract of July 16th, 1868. It was evidently drawn more for the benefit of the contractors than for the interest ofthe company. The extent, value, and accessibility ofthe coal deposits along the line ofthe road ofthe company were, as stated above, well known at the time to its directors, having the immediate control and manageraent of its business. Wardell, the principal contractor, informed those with whom he chiefly dealt in negotiating the contract, that coal could be de livered to the company at a cost of two dollars per ton, yet the contract, which was to reraain in force fifteen years, stipulated that the company should pay treble this araount per ton for the coal the first two years, tM'o and a half times the amount for the next three years, twice the amount for the following four years, and one-half more for the balance of the time. And lest these rates might prove too little, the contract further provided that the sura paid should not be less than ten per cent, added to the cost of the coal to the contractors. These terms and the leasing of all the co.al lands of the corapany for flfteen years to those parties upon a royalty of twenty-five cents a ton for the flrst nine years, and without any royalty afterwards if the price of the coal should be reduced to three dollars, with the stipulation to provide side-tracks to the mines, and also to fur nish cars for transportation of coal for general consumption, and after charging thera only what was charged to others, to allow them a draw back of twenty-five per cent, ou the sums paid, gave to them a contract of the value of millions of dollars. These provisions would of them selves justly excite a suspicion that the directors of the railroad com pany, who authorized the contract on its behalf, had been greatly de ceived and iraposed upon, or that they were ignorant of the cost at which the coal could be taken frora the mines and delivered to the company. But the evidence shows that those directors were neither deceived nor imposed upou, nor were they without information as to the probable cost of taking out and delivering the coal. And what is of more im portance, it shows, as alleged, their previous agreement with the con tractors for a joint interest in the contract, and, in order that they might not appear as co-contractors, that a corporation should be formed in which they should become stockholders, aud to which the contract should 287 be .assigned; and that this .agreement was carried out by the subsequent formation of the Wyoming Mining and Coal Company and their taking stock in it. This matter was so well understood that ^vhen the con tractors commeuced their work in developing the mines and taking out the coal, they kept their accounts iu the name of the proposed company, though no such corapany was organized until raonths after wards. " It hardly requires arguraent to show that the scheme thus designed to enable the directors, who authorized the contract, to divide with the contractors large sums which should have been saved to the company, was utterly indefensible and illegal. Those directors, constituting the ex ecutive committee of the board, were clothed with power to manage the affairs of the company for the benefit of its stockholders and creditors. Their character as agents forbade the exercise of their powers for their own personal ends against the interest of the company. They were thereby precluded from deriving any advantage frora contracts raade by their authority as directors, except through the company for which they acted. Their position was one of great trust, and to engage in any matter for their personal advantage inconsistent with it was to violate their duty aud to corarait. a fraud upou the company. " It is amoug the rudiments of the law that the same person cannot act for himself and at the same time, -with respect to the same matter, as the agent for another whose interests are conflicting. Thus a person cannot be a purchaser of property and at the same time the agent of the veudor. The two positions impose different obligations, and their uuiou would at once raise a conflict between interest and duty ; aud ' consti tuted as humanity is, iu the majority of cases duty would be overcome in the struggle.' — (Marsh vs. Whitmore, 21 Wallace, 18.3.) The law, therefore, will always condemn the transactions of a party on his own behalf when, in respect to the matter concerned, he is the agent of others, and will relieve against thera whenever their enforceraent is .seasonably resisted. Directors of corporations, and all persons who stand in a fiduci ary relation to other parties, and are clothed with power to act for them, are subject to this rule ; they are not permitted to occupy a position which will conflict with the interest of parties they represent and are bound to protect They cannot, as agents or trustees, enter into or au thorize contracts on behalf of those for whom they are appointed to act, and then personally participate in the beneflts. Hence all arrangements by directors of a railroad company, to secure an undue advantage to themselves at its expeuse, by the formation of a new company as an aiix- ili.ary to the original one, with an understanding that they, or sorae of thera, shall take stock in it, and then that valuable contracts shall be given to it, in the profits of whicli they, as stockholders in the uevf com pany, are to share, are so many unlawful devices to enrich themselves to the detriment of the stockholders and creditors of the original company, and will be condemned whenever properly brought before the Courts for 2SS eonsider.ation.- (Great Luxembourg Co. vs. Magnay, 2.") Beavan, 586; Benson vs. Heathoru, 1 Youug & Coll., 326 ; Flint & Pere Marquette R. E. Co. vs. Dewey, 14 Michigan, 477 ; European & N. American R. E. Co. vs. Poor, 59 Maine, 277 ; and Drury vs. Cross, 7 Wall., 299.) "The scheme disclosed here has no feature which relieves it ofits 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 part 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 five per cent, of its net earnings were to be paid to the government. Those earnings were necessarily reduced by every trans.action whicli took from the company its legitimate proflts. 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 beneflt of the railroad company, and transferred it, or were ready to transfer it, to the latter ; but the raajority expressed such a purpose only when the character and terms of the contract becarae knOwii and they were desir ous to screen themselves frora censure for their conduct. " The coraplainant, therefore, can derive no benefit from the contract thus tainted, or sustain any claira agaiust the railroad company for its repudiation."— (13 Otto.) The Use op Running Waters on the Public Lands. When it was known that gold had 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 for the country. Gold-seekers came frora all parts of the world, and in such numbers as to swell the population in three or four years from a few thou sands to over half a miUion. A great number of these — perhaps one-third — remained in the cities and engaged in commerce, or settled upon the fertile lands in the valleys and cultivated the soil, or raised cattle frora the rich pas turage afibrded. The greater portion spread over the mineral region, which was chiefly in the Sierra Nevada Mountains. The title to the whole of the lands compos ing this region was in the United States, and no law had 289 been passed which provided for their occupation and pur chase. The rights which the rainers asserted were merely possessory, and to protect each other in their psssession and in extracting gold from the lands, they were com peUed to adopt certain rules for their government. The character, justice, and wisdom of fhe rules established by them in dift'erent localities, are fully stated in an opinion dehvered 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 doctrines 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 fhe posses- .sion and working of their mining claims. These regula tions controUed the disposition of properties of the value of many railhons. The sarae general systera of regulations, so intrin.sically just were they deeraed, was estabhshed by rainers in the territory east of the Sierra Nevada Mountains — in Ne vada, Montana, and Idaho; indeed, wherever the precious raetals were found. Questions arising under them were constantly before the local Courts, and in sorae instances found their w&y to the Suprerae Court of the United States. In Atchison vs. Peterson,* which was before tbat Court in 1874, the question was presented as to the right, frora prior appropriation, to the use for raining purposes of the water of a streara without deterioration in quality and value. The suit was brought to restrain the defendants frora 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 raining purposes, was, by such work, thus deteriorated. * 20 Wall., 507. 290 The complainants were the owners of two ditches or canals, constructed at a cost of |117,000, by wbich the creek was tapped and the water diverted and conveyed a distance of eighteen railes to certain mining districts, and there sold to miners. At a point about fifteen miles above the place where the creek was thus tapped tbe 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 the 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 wbich the water 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 confiicting, but the great preponderance of it was to the efi'ect that the injury in quality from this cause, at fhe 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 rainers al the places where it was carried. The District Court denied the injunction, and the Su preme Court of the Territory affirmed the decree, and the case was taken to the Supreme Court. In affirming t.he decree that Court, speaking through -Judge Field, said as follows: " By the custom which has obtaiued among miners iu the Pacific States and Territories, where mining for the precious metals is had ou the pub lic lauds of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams on such lands for min ing purposes, is held to have a better right th.an others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the uecessary 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 w.iter for mining purposes, the doctrines ofthe common law declaratory ofthe rights of riparian owners 291 were, at an early day, after the discovery of gold, found to be in.applica- ble or applicable only in a very limited extent to the necessities of the miners, and inadequate to their protection. By the comraon law the ri parian owner on a streara not navigable, takes the land to the centre of the streara, and such owner has the right to the use ofthe water flowing over the land as an incident to his estate. And iis all such owners on the same streara have 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 reasouiible 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 hiin. ' It is wholly immaterial,' says Mr. Justice Story, in Tyler vs. Wilkinson, ' whether the party be a proprietor above or below in the course of the river; the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, 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 equal right to the use ofthe water which flows in the stream adjacent to his lands, as it was wont to run (eurrere solebat) 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 eur- rit et debet eurrere ut eurrere 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 channel when it leaves his estate. Without the consent ofthe 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 without a grant or 3,n 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 proprietors on the same streara would have been incorapatible with any extended diversion ofthe water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lauds, whether bordering ou streams or otherwise, there was no occasion for the application of the com- * 4 Mason, 379. f 3 Kent's Coram., 439. 20 292 mou-law doctrine of riparian proprietorship with respect to the waters of those strearas. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and, to encour.age 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 flrst connects his own labor with property thus situated and open to general exploration, does, in natural Justice, acquire a better right to its 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 custoras, usages, and regulations everywhere recognized the in herent justice of this principle, and the principle itself was at an 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 bn the public lands by the voluntary action and assent of the population, whose free and unrestr.ained occupation ofthe 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 be admitted, 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 flxed as that they have come to be looked upon as having the force and effect of res adjudicata. 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 reraain without development. So fully recog nized have become these rights, that without any specific legislation con ferring or confirming thera, 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 raost distinct expression ofthe will of the law makers.' " This -doctrine of right by prior appropriation, was recognized by the legislation of Congress iu 1866.f 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 anjl protected in the same' * 5 Cal., 140. 1 14 Stats, at Large, 253, 293 " The right to w.ater by prior .appropriation, thus recognized and estab lished as the law of miners ou the mineral lands of the public doraain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right; that is subject to the same limitations, what ever the use. The appropriation does not confer sucli an absolute right to the body of the water diverted that the owner can allow it, after its diversion, to run to waste, and prevent others frora using it for raining or other legitiraate purposes ; nor does it confer such a right that he can insist upon the flow ofthe water without deterioration in quality, where such deterioration does not defeat nor impair the uses to whicli the water is applied."Such was the purport of the ruling of the Suprerae Court of Cali fornia in Butte Canal and Ditch Corapany -^s. Vaughn,* where it was held that thefirst appropriator had only the right to insist thatthe water should be subject to his use and enjoyraent to the extent of his original appropriation, and that its quality should not be irapaired so as to de feat the purpose of that appropriation. To this extent, said the Court, his rights go, aud no farther ; and that, in subordination to them, subse quent appropriators may use the channel and waters of the streara, and mingle with its waters other waters, and divert them as often as they choose ; that whilst enjoying his original rights, the first .apjiropriator had no cause of complaint. In the subsequent case of Ortman vs. Dixon f the sarae Court held to the same purport, that the measure of the right of the first appropriator of the witter, as to extent, follows the nature of the appropriation, or the uses for which it is taken. "What diminution of quantity, or deterioration in quality, will consti tute an invasion of the rights of the first appropriator, will depend upon the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight deterioration in quality might render the water unfit for drink or domestic purposes, whilst it would not sensibly impair its value for mining or irrigation. In all con troversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water, to the extent of his original appropriation, have been impaired by the acts of the defendant. But whether, upon a peti tion or bill asserting that his prior rights have been thus invaded, a Court of Equity will interfere to restrain the acts of the party complained of, will depend upon the character aud extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are liable to respond for the dam ages resulting from the injury, and other considerations which ordinarily govern a Court of Equity in the exercise of its preventive process of in junction." * 11 Cal., 143, See, also, Lobdell vs. Simpson, 2 Nev., 274, 1 13 Cal., 33. 294 The Court then proceeded to apply the principles thus stated to the solution of the questions presented, and affirmed the decree. In Basey vs. Gallagher * the question arose whether a right to running waters on the public lands of the United States for purposes of irrigation could be acquired by prior appropriation as against parties not having the title of the government. The District and Supreme Courts of Mon tana having sustained the affirraative of this question, the case in which it arose was brought before the Suprerae Court of the United States. In giving its judgraent the Court referred to Atchison vs. Peterson, above raentioned, Avhich was decided at the sarae terra, stated what had been held in that case, and then, speaking through Judge Field, said as follows: " The views there expressed and the rulings made are equally applica ble to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories [of the Pacific Coast] by the custom of miners or settlers, or by the Courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one. " In the case of Tartar vs. The Spring Creek Water and Mining Cora pany, decided in 1855, the Suprerae Court of California said : ' The cur rent of decisions of this Court go to establish that the policy of this State, as derived from her legislation, is to perrait settlers in all capacities to occupy the public lauds, and by such occupation to acquire the right of undisturbed enjoyraent against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agri cultural lands acquired by raere occupancy ; to license miners ; to pro vide for the recovery of mining claims ; recognizing canals and ditches which were known to divert the water of streams from their natural channel for mining purposes ; and others of like character. This pol icy has been extended equally to all pursuits, and no partiality for one over another has heen evinced, except in the single case where the rights of the agriculturalist are made to yield to those of the miner where gold is discovered in his land The policj' of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts, uuder the pretence of agriculture and grazing, and event ually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few. Aside from this the legislation and decisions have been uniform in awarding the right of * 20 Cal,, 671, 295 peaceable enjoyment to the flrst occupant, either of the land or of any thing incident to the laud.'* " Ever since that decision it has been held generally throughout the Pacific States and Territories that the right to water by prior appropria tion for any beneficial purpose is entitled to protection. Water is di verted to propel machinery in flour-mills and saw-raills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims ; and iu all such cases the right of the flrst appropriator, exercised within reasonable limits, is respected and enforced. We say within rea sonable limits, for this right to water, like the right by prior occupancy to mining ground or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single indi vidual. The act of Congress of 1866 recognizes the right to water by prior appropriation.for agricultural and manufacturing purposes, as well as for mining. Its language is : ' That whenever by priority of posses sion rights to the use of water for raining, agricultural, raanufacturing, 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 he maintained and protected in the same.' " It is evident that Congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water, which had grown np among the occupants of the public land under the peculiar necessities of their condition ; and that law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decisions of the courts. The union of the three conditions, in any particular case, is not essential to the perfection of the right by priority ; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control." * Per Heydenfeldt, J., 5 California, 397. 296 CASES IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. As mentioned in the preceding pages, -Judge Field, upon his appointraent, was as.signed to the circuit composed of the Pacific States, California and Oregon, to which Nevada, on her becoming a State, was added. It was his duty to attend the sessions of the Supreme Court at Washington in fhe winter, and to hold the Circuit Court in his circuit in suraraer. Until the .passage of the act of 1869, pro viding for the appointraent of Circuit -ludges, the Circuit Court, in his absence, was held by the District -Judge of the district. ' Since then he has only been required to at- ¦ tend a terra in each district of his circuit once in two years. He has, however, visited the circuit every year, until the present one (1881), since his appointment, and has generally held court in all its districts. The cases brought before the Circuit Court have not only been of the variety and importance, which have gen erally characterized the litigation in the Federal Courts of other circuits, but many of thera have had special inter est, arising either from accidental circumstances or circum stances peculiar to the coast. United States vs. Greathouse. At the first term of the circuit at which -Judge Field presided, after his appointment, the case of the United States vs. Greathouse and others, was tried. Growing out of fhe civil war, then pending, it excited unusual interest 297 throughout the country. Its history is briefly this. In March, 1863, the schooner /. M. Chapman was seized in the harbor of Sau Francisco, by the United States rev enue officers, while sailing, or about to sail, on a cruise, in the service of the Confederate States, against the comraerce of the United States, and the leaders of the expedition, named Greathouse, Harpending, Rubery, Law, and Libby, were indicted under the act of Congress of -July 17th, 1862, for engaging in and giving aid and comfort to the then existing rebellion against the government of the United States. The case was called for trial at the Octo ber terra of 1863. A nolle prosequi was entered as to Law and Libby, and they becarae witnesses for the prosecution. Their testimony and that of others showed that Har pending, a native of Kentucky, and Ruberj^, a native of England, had for some tirae contemplated the fitting out of a privateer at San Francisco, for the purpose of taking several of the mail steamships plying between that port and Panama, and other vessels. With this object in view, Harpending had gone across the country to Richraond, Virginia, and procured from -Jefferson Davis, the Presi dent of the Confederate 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. LTpon his return to San Francisco he and Rubery raade arrangements for the pur chase of a vessel which would suit their purpose; but these arrangements afterwards failed, on account of the dishonor of the drafts drawn for the purchase-money by Rubery, and the consequent want of funds. They also made a voyage to Cerros Island for the purpose of examining into its fitness as a depot and as a rendezvous whence to attack the stearaers going to Panama. In January or February, 1863, Harpending made the acquaintance, at San Francisco, of Law, a ship captain ; 298 broached to him the project of fitting out a privateer; stated what had been done; exhibited his letter of marque and instructions; solicited 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 raail stearaers. Law agreed to take part in the scherae, and soon afterwards pointed out the schooner /. M. Chap man, a vessel of about ninety tous burden and a fast sailer, as M'ell adapted for the intended cruise. Several raeetings in reference to the subject took place between Harpend ing, Rubery, Law, and Greathouse, (who had been intro duced by Harpending to Law as a capitahst,) and the re sult was that Greathouse purchased the schooner, and fur nished raoney to procure arras, ammunition, and stores, and to engage a mate and a ci'ew. 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 this tirae 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 rified 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 nuraber of uniforms, such as are usually worn by raen on vessels of war. A large amount of lura ber was also purchased and shipped, with which 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 lies some three hundred miles oft' the coast of California; there land Harpending and the fighting men, who were to be shipped on the night of Saturday the 14th; thence proceed to Manzanillo, and discharge such freight as raight be faked ; then return to Guadalupe, and fit the 299 schooner for privateering purposes; then proceed again to Manzanillo, where the men were to be enrolled and their names inserted in the letter of marque, a copy of which was thereupon to be forwarded to the government of the Confederate States. It was their plan fii'st to capture a steamer bound from San Francisco to Panama, on its arrival at Manzanillo, land its passengers, and with the steamer thus taken capture a second steamer; next to seize a ves sel frora San Francisco, then engaged in recovering treas ure from the wreck of the steamer Golden Gate; thence to go to the Chincha Islands, and burn vessels there be longing to citizens of the United States, and thence to proceed to the China Sea, and finally into the Indian Ocean. There, they expected to join Adrairal Serames of the Confederate Navy. In pursuance of this plan, and to prevent syispicion, fhe schooner was " put up " for Man zanillo. 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 era ployed by Harpending as privateersraen, were placed in the hold in an open space left for them among the cargo, directly under the raain hatch. The only person absent was Law, who reraained on shore with the understanding that he should be on hand before raorning. It afterwards appeared that he had becarae intoxicated, and did not get down to keep his appointraent until after the schooner had been seized. During the evening, Rubery had heard ruraors 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 wharf into the streara. The main-sail was partially hoisted; but no sooner had the wharf been left, than two boats were observed putting ofi' 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 thera, said to Great- house that they were after thera. Rubery then insisted on running up the sails, but Libby repUed that there was no wind, and it would be useless. In a few rainutes after wards the schooner was boarded and seized by the officers of the United States, and the enterprise nipped in^ the bud. Scarcely had the seizure been eff'ected when Law made his appearance on board and was arrested with the others. The revenue officers of the United States had been aware of the intended enterprise frora an early period, and raain tained a constant watch on the vessel night and day. They knew the character of the cargo, -jvhich had been carefuUy noted by the watchmen; were aware of the ship ment of arras, and saw the cases with their false raarks. 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 confinement of prisoners 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 with 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 J. M. Chapman lay, and watched the men going on board. When the schooner cast oft' its lines at daylight and headed out into the stream, the boats from the Cyane put oft' and boarded 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 partiaUy burned, were found strewn about the hold. The two sailors confined testified that some of the party had 301 employed the time intervening between the boarding of the vessel and the opening of the hatchway in destroying papers. Loaded pistols and bowie-knives were found stowed away in the interstices between the packages of the cargo. In the baggage of Harpending and Rubery were found, among other papers, a proclaraation to the people of Cali fornia to throw ofi' the authority of the United States; a plan for the capture of the United States forts at San Fran cisco, and particulariy Alcatraz; also, the form of an oath of fidelity to their cause, with an imprecation of vengeance on all who should prove false. It was shown that some of these papers were in the handwriting of Harpending; and Rubery admitted that he and one of the defendants had spent some tirae in preparing the oaths. After the seizure and arrest, the prisoners were taken to Alcatraz and confined. The schooner was unloaded, and the arms and munitions examined. An army officer testified that, in his opinion, the schooner might have de stroyed a Panama steamer; but naval officers expressed a doubt whether this could have been done. The defence oft'ered no testimony, but claimed, among other things, that a state of war existed between the United States and the Confederate States; thatthe latter were en titled to, and had iii fact received from the former, bel ligerent rights; and that privateering on thejiart of either side was a legitimate mode of warfare, and made those engaged amenable only to the laws of war. They also claimed that the schooner had not started on her voyage, but had 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 commenceraent of the cruise, and that, at any rate, no offence could have been com mitted until the schooner had reached Manzanillo, and been ready to commence hostilities. They finally in.sisted that there could be no treason and no conviction under the indictment, for the reason that "aid and comfort" had not been actually given. -302 The trial lasted three weeks. Judge Hoft'man of the District Court sat with Judge Field, and each of the judges gave their views to the jury, following in that respect the practice which was adopted in sorae 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 JBoUman 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 rebellion is a matter of public notoriety, aud like raatters of general and public concern to the whole country, may be taken notice of by judges aud juries without that p.articular proof which is required 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 aud public documents are also sufiicient 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 owu statements, co-conspirators with the defend ants, and equally involved in guilt with them, if guilt there be in any of thera. 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 testiraony of an accoraplice, 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 shonld 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-called 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 property of the United States ; 303 that his co-defendants and others entered into a conspiracy with hira to purchase and fit out, and arm a vessel, and cruise under the said letter of nuarque, in the service of the rebellion ; th.at in pursuance of the con spiracy they purchased the schooner J. M. Chapman ; tliat they purchased cannon, shells, and ammunition, and the means usually required in en terprises of that kind, and placed them on board the vessel ; that they employed men for the management of the vessel ; and that, when every thing was in readiness, they started with the vessel frora the wharf, with the intention to sail frora the port of San Francisco on the arrival on board of the captain, who was inonientarily expected. Gentleraen I do not propose to say anything to you upon the much disputed questions whether or not the vessel ever did, in fact, sail from the port of San Fran cisco, or whether, if she did sail, she started on the hostile expedition. In the judgraent of the Court they are immaterial, if you find the facts to be what I have said the evidence tends to establish. " ' When Harpending received the letter of marque, with tbe intention of using it, if such be the case (and it is stated by one of the witnesses that he represented that he went on horseback over the plains expressly to ob tain it), he became leagued with the insurgents — the conspiracy between him and the chiefs of the rebellion was complete ; it was a conspiracy to comrait hostilities on the high seas against the United States, their author ity and laws. If the other defendants united with hira to carry out the hostile expedition, they, too, becarae leagued with him and the insurgent chiefs in Virginia in the general conspiracy. The subsequent purchasing ofthe vessel, and the guns, and the ammunition, and the employment of the men to manage the vessel, if these acts were done in futherance of the coinmon design, were overt acts of treason. Together, these acts complete the essential charge of the indictment. In doing thera the de fendants were perforraing a part in aid of the great rebellion. They were giving it aid and comfort.' " It is not essential to constitute the giving of aid and comfort that the enterprise comraenced should be successful and actually render assistance. If, for example, a vessel fully equipped and arraed in the service of the rebellion should fail in its attack upon one of our vessels, and be itself captured, no assistance would in truth be rendered to the rebellion ; but yet in judgment of law, in legal intent, the aid and comfort would be given. So if a letter containing iraportant intelligence for the insurgents be forwarded, the aid and corafort are given, though the letter be inter cepted on its way. Thus Foster, in his Treatise on Crown Law, s.ays : ' And the bare sending money or provisions, or sending intelligence to rebels or enemies, which in most cases is the most effectual aid that can be given them, will make a man a traitor, though the money or intelli gence should happen to be intercepted ; for the party in sending it did all he could ; the treason was complete on his part, though it had not the effeot he intended.' " Whenever overt acts have been committed which, in their natural consequence if successful, would encour.age aud advance the interests of 304 the rebellion, in judgment of law aid and comfort are given. Whether aid and comfort are given— the overt acts of treason being established— is not left to the balancing of probabilities; it is a conclusion of law. " If the defendants obtained a letter of raarque frora the president of the so-called Confederate States, the fact does not exerapt them frora pro.secution in the tribunals of the country for the acts charged in the indictment. The existence of civil war, and the .application of the rules of war to particular cases, under .special cii'cum,stances, do not imply the renunciation or waiver by the Federal Government of any of its muni cipal rights as sovereign toward the citizens of the seceded States. "As raatter of policy and humanity, the government of the United States has treated the citizens of the so-called Confederate States, taken in open hostilities, as prisoners of war, and has thus exempted thera frora trhal for violation of its municipal laws. But the Courts have no such dispensing power ; they can only enforce the laws as they find them upon the statute-book. They cannot treat any new government as having au thority to issue commissions or letters of raarque which will afford pro tection to its citizens until the legislative and executive departments have recognized its existence. The judiciary follows the political de partment of the government in these particulars. By that department the rules of war have been applied only in special cases ; and, notwith standing the application. Congress has legislated in numerous instances for the punishment of all parties engaged in or rendering assistance in any way to the existing rebellion. The law under which the defendants are indicted was passed after captives in war had been treated and ex changed as prisoners of war in numerous instances. " But even if full belligerent rights had been conceded to the Confed erate States, such rights conld not be invoked for the protection of per sons entering within the liraits of States which have never seceded, and secretly getting up hostile expeditions against our governraent and its ¦authority and laws. The local and temporary allegiance which every one — citizen or alien — owes to the governraent under which he at the tirae lives, is sufficient to subject him to the penalties of treason.'' — (4 Sawyer, 470-4.) The last part of this charge is undoubtedly correct, for whatever protection the concession of belligerent rights may have given to persons engaged in actual warfare on the Confederate side, none could be aUowed to persons in league with them, engaged in getting up hostile expeditions within the limits of the States which had never seceded. Under no aspect of the law of belligerency could they be exempted from prosecution. The extent of protection which t.he concession of beUigerent rights gives to insur- 305 gents against an established government is stated by the Supreme Court in WUUams vs. Brufiy (6 Otto, 187). — See above, page 94. Happily the great Act of Amnesty promulgated by Presi dent Johnson on the 25th of December, 1868, has removed all ground for legal accusation against parties engaged in the great insurrection against the government of the United States. — See language of Burke cited above at page 60, and comraents upon it. The jury found the defendants guilty, and sentence im posing both fine and imprisonment was pronounced upon them. Rubery was subsequently pardoned by President Lincoln at the request of -John Bright of England. The other defendants were subsequently released from im prisonment upon taking the oath prescribed in the procla mation of President Lincoln of December 8, 1863, and giving a bond for their future good behavior. United States vs. Knowles. This case was also one of special interest. It was tried in the Circuit Court in 1864. Knowles was the captain of the American ship " Charger," and in April of that year one of its sailors, by the name of Swainson, whilst on the royal yard engaged in furling sail, accidentally fell overboard. The captain refused to stop the vessel and lower either of its boats — it had three — or to make any attempt to rescue the man, and he was drowned. An in dictment was accordingly found against him, alleging tbat the sailor might have been saved had the captain stopjied his ship and lowered either of its boats and made any at tempt to rescue hira, and that for his negligence and omis sion in this respect the sailor was drowned, and hence charging the captain with raurder. At the outset of the trial the public prosecutor only asked a verdict for raan- slaughter. Judge Field, after stating the nature of the indictraent, charged the jury as follows: 306 "As you will thus perceive, gentleman, the charge is that thc death of Swainson was occasioned by the willful oraission of the defendant to stop the ship, lower the boats, and rescue him, or to raake any attempt for his rescue. In the majority of cases where manslaughter is charged, the death alleged has resulted frora direct violence on the part of the ac cused. Here the death is charged to have been occasioned by the willful oraission of the defendant to perforra a plain duty. " There raay be, in the omission to do a particular act under some cir cumstances, as well as in the commission of an act, such a degree of crim inality as to render the offender liable to indictment for manslaughter. The law on the subject is this : that where death is the direct and imme diate result of the omission of a party to perforra a plain duty iraposed upon him by law or contract, he is guilty of a felonious homicide. There are several particulars in this statement of the law to which yonr atten tion is directed. " In the flrst place, the duty omitted must be a plain duty, by which I mean that it raust be one that does not admit of any discussion as to its obligatory force ; one upon which dift'erent minds must agree, or will generally agree. Where doubt exists as to what conduct should be pur sued in a particular case, and intelligent men differ as to the proper ac tion to be had, the law does not impute guilt to any one, if, from orais sion to adopt one course instead of another,' fatal consequences follow to others. The law does not enter into any consideration of the reasons governing the conduct of men in such cases, to determine whether they are culpable or not. " In the second place, the duty oraitted must be one which the party is bound to perform by law or contract, and not one the performance of which depends .simply upon his humanity, or his sense of j ustice or pro priety. In the absence of such obligations it is undoubtedly the mor.al duty of every person to extend to others assistance when in danger; to throw, for instance, a plank or rope to a drowning raan, or raake other efforts for his rescue, and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the ouly punishment to which he would be subjected by society, " In the third place, the death which follows the duty oraitted raust be the immediate and direct consequence of the omission. There are many cases in the reports in which this doctrine of liability for negligence re sulting in death is asserted. In one case a defendant had been eraployed to give signals to riiilway trains of obstructions on the road. Having, on ons occasion, neglected to give the proper signal of an obstruction, a col lision followed, causing the death of a passenger. The negligence was held to be crirainal and the defendant was convicted of manslaughter. — (Regina vs. Pargeter, 3 Cox C. C, 191.) In another case the defendant was employed as the ground bailiff of a miue, and as such it ^¦^as his duty 307 to cause the mine to be ventilated, by directing. air-headings to be placed where necessary. By his oraission to do this in a particular place the damp in the mine exploded and several persons were killed. The defend ant Wiis indicted for manslaughter, and the Court instructed the jury that if they were satisfled that it was the ordinary and plain duty of the pris oner to cause the air-heading to be made iu the mine, and that a person using reasonable diligence would have had it done, and that by the omis sion the death of the deceased occurred, they should find the prisoner guilty.— (Regina vs. Karraes, 2 Carrington & Kirwin, ;J68.) In these Ciises you will perceive that the omission which resulted fiitally was of a plain personal duty, aud that the accident was the immediate and direct consequence of the omission. " Now, in the case of a person falling overboard from a ship at sea, whether passenger or seaman, when he is not killed by the fall, there is no question as to the duty of the commander. He is bound, both by law and by contract, to do everything, consistent with the safety of the ship and of the passengers and crew, necessary to rescue the person overboard, and for 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 hira in the water until he is reached by the boats and saved. No matter what delay iu the voyage raay be occasioned, or what expense to the owners may be incurred, nothing will excuse the com mander fur any omission to take tliese 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 fall or be thrown overboard. Auy neglect to make such efforts would be crirainal, and if followed by the loss of the person overboard, wheu by thera he raight have been saved, the coramander would be guilty of manslaughter, aud might be indicted and punished for that offence " In the present cose it is uot jiretended that any efforts were made by the defendant to save Swainson, nor is the law iis to the duty of the com mander, and his liability for omitting to perform it under the conditions stated, controverted by counsel. The positions taken in the defence of the accused are : 1. That Swainson was killed by his fall from the yard ; 2. 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 hira 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 from his fall is alleged frora the distance he must have fallen, 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 s.ays that Swainson struck the water on his back or front; 21 a third witness states that the feet of Swainson struck the water first, but the position 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 aud evidence, and not a doubt rest ing upon mere conjecture or speculation, whether he was killed by the fall, 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 raen, proves fatal. The fall of a person into the sea from a height of one hundred and ten feet is uot an event whicli is necessarily fatal. Nor can i* 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 existeuce 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 fact. You will not take the fall itself iis conclusive on this point, but will con sider it in connection with the evidence of the manner in whic]i the party fell, and particularly of the manner in which he struck the water in falling. " If J'OU 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 tirae, 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 iind consequent exhaustion which Swainson must have experienced from the fall, even supposing that he was not immediately killed. " It is not sufficient for you to believe that possibly he might have heen saved. To find the defendant guilty you must corae to the conclusion that he would, beyond a reasonable doubt, have been saved if proper efforts 309 to save him had been seasonably made, and that his death was the con sequence of the defendant's negligeiuie in this respect. Besides the con ditiou of the weather and sea, you raust also take into consideration the character ofthe boats attached to the ship. .Recording to the testiraony of the raate they were small and unfit for a rough sea. " During the trial much evidence was offered as to the character of the defendant as a skillful and able officer and as a huraane man. The aet charged is one of gross inhumanity ; it is that of allowing a sailor falling overboard whilst at work upon the ship, to perish, without an effort to save him, when by proper efforts, promptly made, he could have been saved. If there be any doubt as to the conduct of the defendant, his past life and character should have some consideration with you. " With these views I leave the case with you. It is one of rauch inter est, but I do not think that, under the instructions given, you will have any difficulty in arriving at a just conclusion." — (4 Sawyer, 518-23.) The jury returned a verdict of acquittal. United States vs. Smiley. This was another case which excited rauch interest at the tirae. It arose as follows : The stearaer 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 apparent 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 railes north of the port of ¦ ManzaniUo. The surf, which was breaking heavily, soon swung her stern around so that she lay nearly paral lel with the beacii when she went to pieces. At eight o'clock of that evening all that remained visible were her engines, boUers, and wheel frames. Of the three hundred and thirty-eight souls on board only one hundred and forty were saved. The treasure which she carried, amount- ino- to one raUhon four hundred and fifty thousand dollars 310 was sunk about forty feet inside of the wreck, where in a space of sixty feet square upwards of one raillion two hun dred thousand dollars were- subsequently recovered. Soon after the loss of the steamer was known, a vessel was fitted out -by the underwriters to proceed to the scene of disaster and recover whatever was possible of the treasure. The pai'ties employed soon returned and abandoned the idea of finding it. Iramediately another vessel, the " Active," was sent by a party of capitalists, on the same errand, but she returned likewise unsuccessful. In Deceraber, 1862, another party of capitaUsts started anothor vessel, the schooner " Wilhara Ireland," fitted with pumps and wrecking appliances and accompanied by sub-marine divers, under the comraand of Ireland, oue of the projectors of the enterprise. The men in this expe dition succeeded iuTccovering f 800,000. 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 efforts 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 wrecldng apparatus, ancl 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 efforts in that direc tion were closed. The treasure recovered by Srailey 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 a license to explore for 311 the treasure lost. On his return to San Francisco, claini was raade by shippers for the specie recovered, but it was not given up, as the parties could not agree as to the araount which the recovering company should retain as corapensation for the recovery. The result was that a coraplaint was made against Smiley and others of his com pany, and in March, 1864, they were indicted in the Cir cuit Court of the United States for plundering and stealing the treasure from the Golden Gate, under the ninth section of the act of Congress of March 3d, 1825, M'hich provides: "That, if any person or persons shall plunder, steal, or destroy any money, goods, merchandise, or other ett'ects, frora or belonging to auy ship, or vessel, or boat, or raft, which shall be in distress, or which shall be wj'ccked, lost, stranded, or cast away upon the sea, or upon any reef, shoal, bank, or rocks of the 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 by fine, not exceeding five thousand dollars, and imprison raent and confineraent to hard labor not exceeding ten years, according to the aggravation of the oft'ence." * To the indictment a demurrer was interposed on various technical grounds. As the expedition conducted by Smiley was an open one, after all other eft'orts for the i'«cov- ery of the treasure had been abandoned, and Smiley was a raan of previously good character and standing in the community, the indictment was generally regarded as per secution — as an atterapt to coerce the treasure from him without allowing proper compensation to hira and his as sociates for its recovery. The counsel engaged in the case appeared to recognize this. It was, therefore, agreed tbat the facts stated above should be deeraed admitted, and that upon them the following questions should be presented to the Court for deterraination: 1st, Whether the act of Congress appUed to a case where the taking of the prop- * 4 Stat at Large, p. 116. 312 erty, of which 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 offence charged, the demurrer should be sustained. Upon this stipulation the questions were argued. In disposing of thera the Court said, speaking through -Judge Field: " We are not prepared to decide that the statute does not apply to a case where the vessel has gone to pieces, to -ndiich 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 ofthe officers or other parties interested, the act -would apply if a larceny of them were comraitted, even though the vessel may in the meantirae have gone entirely to pieces and disappeared from the sea. But iu 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 Srailey was fitted out, and all efforts to recover the property had been giv^ up by thera. The treas ure was then in the situation of derelict or abandoned property, which could^e acquired by any one who might have the energy and enterprise 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 offence here charged. The treasure recovered was buried in the sand several feet under the water, and was jvithin one hundred and fifty feet from the shore of Mexico. The jurisdiction of that country over all offences com raitted 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 State extends to the ports, harbors, bays, aud mouths of rivers and adjacent parts of the sea inclosed by headlands,- 313 belonging to the same State,' says : ' The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State. Within theselimits its rights of property and terri torial jurisdiction are absolute, and exclude those of every other nation.' —(Part 2, Chap. 4, Section 6.) " Thecriminal jurisdiction ofthe governraent ofthe United States — that is, its jurisdiction to try parties for offences committed against its laws — may in sorae instances extend to its citizens everywhere. Thus, it raay punish 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 Bar bary States ; it may provide for offences committed on deserted islands, and on an uninhabited coast, by the officers and seamen of vessels sailing under 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 theiaw of Congress indicates clearly the ex-territorial character ofthe act at whicli punishment is aimed. Except in cases like these, the criminal jurisdictiou of the LTnited States is necessarily limited to their own territory, actual or constructive. Their actual territory is co-extensive with their possessions, including a marine league from their shores into the sea. " This limitation of a marine league 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 doraain ofa 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 iraproveraent of modern tiraes in ordnance, the distance of a marine league, which is a little short of three English miles, may, per haps, have to be extended so as to equal the reach ofthe projecting power of modern artillery. The constructive territory ofthe United States em braces vessels sailing nnder their flag; wherever they go they carry the laws of their country, and for a violation of thera their officers and men may be subjected to punishment. But when a vessel is destroyed and goes to the bottom, the jurisdiction of the country over it necessarily ends, iis 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 the sea, was done out of the jurisdiction of the United States as com pletely as thongh the steamer had never existed. " We are of opinion, therefore, that the Circuit Court hais no jurisdic tion to try the offence charged, even if, under the facts adraitted by the parties, any offence was coraraitted. According to the stipulation, judg ment sustaining the demurrer will be, therefore, entered and the de fendants discharged." 314 Ex-parte Cavanaugh on Habeas Corpus. In this case the petitioner, Jaraes C. Cavanaugh, was brought before the Circuit Court, in the suramer of 1864, on a writ of habeas corpus, alleging in his petition the un lawful restraint of his liberty by an officer claiming to be a deputy marshal of the Consular Court at Nagasaki, in Japan, and praying for his dischai'ge. It appeared that the pietitioner had been convicted in that Court, in Sep tember of the previous year, — the consul sitting with four assessors,— of the crirae of raan,slaughter in an aggravated degree, and sentenced to five years' imprisonraent, at hard labor, in the jail at thaf port, and that the sentence had been approved by the resident rainister in -Japan. Upon the request of the petitioner, his sentence was changed to confinement in the State prison of CaUfornia, there being uo provision made by Congress for a jail at the port of Jfagasaki. He was accordingly brought to San Francisco, and there he applied for his discharge. Two points were raade 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 erapire, was unconstitu tional; and, 2d, if constitutional, that there was no pro vision of law authorizing the confineraent of prisoners, sentenced by that Court, in the penitentiary of California, or their detention by the raarshal 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 coramerce and for the protection of persons engaged in it, and, if necessary, to prevent citizens of the United States, charged with ofi'ences, from being- 315 m subjected to the cruel and barbarous punishraent of Asiatic and other than Christian countries, the treaties raight stip ulate for a special tribunal for their trial. It followed substantially the reasons contained in the letter fo Mr. Calhoun, then Secretary of State, of September, 1844, by Mr. Caleb Cushing, the rainister who made our treaty with China, under wbich Congress passed the law author izing similar Consular Courts in that emjiire. Hardy vs. Harbin. This case Avas before the Court in -July, 1865. It was a suit in equity to charge the defendants — as trustees of cer tain real property, situated in Yolo County, California — and to compel a transfer of the title to the complainants, and arose out of facts of a very unusual character. They were briefiy these: One -John Hardy was a native of Canada, and in 1824 was married in that province. Three children were the issue of this marriage, two of whom, Alexander and El len, were living when the suit wtis brought. Alexander was born in IsTew York, and during the civil war was a sol dier in the United States Army. -John Hardy's wife died in 1832, and soon afterwards he left Canada, and for one or two years was employed at difi'erent places on the Mis sissippi River. He then proceeded to Texas and thence to Mexico, There he became a Mexican citizen by natural ization, andfor a while was engaged in the military ser vice of the country. Tn 1843 he went to Cahfornia and there assumed the name of Thomas Hardy, by which name, or that of Thoraas M. Hardy, he was always known iu that country. In October of that year he obtained frora the governraent 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 October, 1848, he died at Benicia, intestate, possessed of the real property thus granted fo him, and also personal property of the value df several thousand dollars. In 316 Marcli, 1850, the Prefect of the District of Sonoma, which embraces Benicia, appointed one Stephen Cooper, of that place, administrator of the e'state, and issued letters of administration to hira, 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 Court the real property was sold and the sale confirraed. In 1852 the claim of the purchasers of the land at that sale, and of parties deriving title from them, was presented for confirmation tothe Board of Land Commissioners, created by act of Congress of March 3d, 1851, for the settlement of private land claims in California derived frora Mexico. This claim was confirmed bythe 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 children of John Hardy had heard nothing of their father except by a letter from him dated at Monterey, in California, in 1847 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 brought by thera to recover the property. The facts here narrated were set forth in their bill of coraplaint, to which the defendants deraurred on the al leged ground of want of equifj-, and that the cla,ira of the coraplainants 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 fendants took the legal title with notice of the invalidity of the means by which it was obtained, aud should, therefore, upou 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 property is iicquired by fraud, or under such circumstances as to render it inequitable for the holder of the legal title to retain it, a Court of Equity will convert hira into a trustee of the party actuiilly entitled to its beneficial enjoyraeut Aud 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 adrainistrator. Prefects were executive officers ofthe governraent. It was their duty to raaintain 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 erapowered to impose sinall fines in the enforceraent of their authority, aud to hear complaints against inferior officers of the district, but beyond this extent they were uot clothed with any judicial functions. " Nor did the Probate Court of Solano County acquire any jurisdictiou over the estate of the deceased after the transfer of the papers from the Prefect. The statute of California for the settlement of the estates of deceiised persons hiis 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 Ciil., 621) ; and the ruling in this respect was affirraed by the sarae Court iu the subsequent case of Tevis vs. Pitcher. — (10 Cal., 465.) The act which provides for the probate of wills also regulates the manner iu which the estates of parties dying intestate shall be closed, and is equally limited iu its application to cases arising subsequent to the adoiation of the con stitution. It was obviously the intention of the Legislature to leave all estates of decedents who died previously to be'settled uuder 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 was a nullity, that the conveyance of the alleged administrator was exe cuted. That conveyance enabled the purchasers, and parties holding un der thera, to present the grant made to Hardy by the Mexican govern ment to the Board of Land Commissioners, and to obtain a conflrmation 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 whieh Hardy died possessed, 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, from instituting or raaintain ing ejectraent for the preraises, and forces them to seek relief frora a Court of Equity. And it is upon the confirraation 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 wiis 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 clairas. The only question in which the governraent was concerned, and which deraanded 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. Aud in conformity with this view is the lan guage ofthe Supreme Court ofthe Uuited 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 siraply to enable the Board to determine if there was a bona fide claimant before it under a Mexican grant ; and so this Court have repeatedly determined that thc 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 conflrmees and third parties reraained unaffected. Thus, in Estrada vs. Murphy (19 Cal., 272), the Court said : ' If the conflrraee, in presenting his claira, acted as agent, or trustee, or guardian, or in any other fiduciary capacity, a Court of Equity, upon a proper 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 bauds 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 319 to be taken before the tribunals aud officers ofthe United States, having for their object the ascertainment of the validity of the grant, preferred under Mexican law aud authorities, and the identification of the land to which it is or should be restricted. As the last iiet in the series of pro ceedings, aud as a result of those previously taken, it is issued. It is, therefore, record evidence on the part of the government that the pre vious grant was genuine, and entitled to recognition and confirmation by the law of nations, or the stipulations of the treaty between Mexico and the United States, and is correctly located so as to erabrace tbe premises described. Until vacated and set aside by proceedings iustituted in the name, or by the authority of the governraent, it is evidence that the title had piissed by the grant from the former government, or that such equi ties had existed under that government in favor of the alleged grantee, as to require or justify the cession of the title, and also that by convey ances, regular on their face, the legal title had apparently passed frora the grantee to the clairaant; but it is not evidence of any equitable rela tions of the holders of subsequent conveyances frora the grantees to each other or to third parties, for such relations were not subraitted to the tribunals of the United States for adjudication in the settleraent of private land clairas under Spanish iuid Mexican grants. " There is nothing in the numerous decisions of the Supreme Court of the State upon patents of the United States whicli militates against this view. Those decisions, with one or two exceptions, were rendered in ac tions of ejectment, and only affirmed the conclusiveness of the patents in determining the title of the patentees in such actions, as against attempts to resist their operation by parties holding either under unconfirmed grants, or by alleged pre-emption and settlement under the laws of the United States. It is true, it is said iu Stark vs. Barret (15, Cal., 316), that the patent, in recognizing the validity of the grant, upon the coufirmation of which it is issued, necessarily establishes the validity of all properly ex ecuted intermediate transfers of the grantee's interest, but this is no more than saying that if the grant was valid, a valid title was transferred hy properly executed conveyances of the grantee — a proposition which requires no explanation. And the decision in Clark vs. Lockwood (20 Cal., 220), to which counsel refer, only goes to the extent of declaring that in an action of ejectment by the vendee of the confirmee, it is un necessary to introduce the intermediate conveyances from the Mexican grantee to the confirmee, the conflrmation being an adjudication that the legal title was in him at the date of the presentation of his petition to the Land Comraissioners. The opinion of the Court expressly limits the conclusiveness of the adjudication to the legal title in that actiou, and cites from the case of Estrada vs. Murphy to show that equities agaiust such titles may be enforced by proper proceedings in a Court of Equity. "The action of ejectment deals with legal titles; the patent determines the position of such title, and when the patentee is other than the Mexi can grantee, it is evidence that he had made such a prima facie showing 320 before the proper .authorities of having a transfer ofthe grantee's interest, as to justify its haviug been issued to him. In the opinions filed on ren dering the decisions in the State Courts cited by counsel, though relating to the legal title, reference is made in several instances to possible equi ties of third parties, for the purpose of qualifying the general language - used as to the conclusive effect of the patents, and to direct parties assert ing such equities to the proper tribunal for relief." The Judge then referred to the cases of Brush vs. Ware (15 Peters, 93), Reeder vs. Barr (4 Ohio, 458), and pro ceeded as foUows : " The principle upon which these decisions proceed is the familiar one, that where a purchaser cannot make out his title except through an in strument which leads to a particular fact, he is chargeable with notice of such fact. " In the case at bar the principle applies and is a full answer to those of the defendants who took their title from the patentees. The patent, we must presume, was issued in the ordinary form of such instruments upon the confirmation of a Mexican grant, with a recital of the existence of the grant, the conveyance of the grantee's interest by the administrator, the confirmation of the claim under the grant, its survey upon the con firmation, iind the approval of the survey by the proper officers of the government. Such are the usual recitals, and, of course, in the present case they directed the attention of all subsequent purchasers to the ex amination of the conveyance of the administrator, and the proceedings upon which it was made. " The position that the complainants are not entitled to relief because by the act of March 3, 1851, all lands, the claim to which was not present ed within two years thereafter, were to be deemed part of the public do main, hardly merits serious consideration. It cannot be affirmed that if the sale bythe administrator had not taken place, friends ofthe deceased would not have made efforts to ascertain whether there were any heirs to the estate, and have not succeeded in finding them ; nor that the property would not have been taken in charge by officers of the State as a vacant inheritance, and the grant presented for adjudication to the proper tri bunals of the United States ; nor that relief might not have been afforded the heirs when the property was discovered by appropriate legislation. The finder of personal property might with equal propriety justify its retention on the ground that the true owner would never have found it. "The claim presented by the claimants,- resting upon solid principles of justice and right, must be sustained, upon the showing ofthe bill, uu less barred by the statute of limitations. " The statute of limitations of this State is peculiar. It differs essen tially from the English statute, and from the statute of limitations in force in most of the other States of the Union. Those statutes, iu terms, apply oiil.y to particular legal remedies, and Courts of Equity 321 are said to be bound bythem only in cases of concurrent jurisdiction, and in other cases to act only by analogy to the statutes, aud not in obedience to them. But in this State the statute applies both to equit.a- ble and to legal remedies. It is directed to the subject-matter, and not to the forra of the actiou or the tribunal before which it is prosecuted. Such is the language of the Supreme Court, the only authoritative inter preter of the laws ofthe State. — (Lord vs. Morris, 18 Cal., 486.) " The question then is, whether the statute barred the relief prayed, and not whether, as insisted by counsel, the claim on general principles adopted in the administration of equity is a stale claim, although we raay add on this latter head that the claim has upon such principles no feature that should bar its enforcement ou 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 hiive accrued until the discovery by the aggrieved party ofthe 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 nnder which the patentees secured the title, and, consequently, are precluded from protection as in nocent purchasers. They are, therefore, chargeable with coustructive 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 classes, 'consists of those where a person purchases 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, 536. Its doctrine was affirmed in Norton vs. Meader, Ibid., 604. Hall vs. Unger. California passed under the jurisdiction of the United States -on the 7th of July, 1846; at least at that date the forces of the United States took possession of Monterey, the Capital of the Department, and from it the authority 322 of Mexican officials over the country is regarded by the poUtical departraent of the government, as having ceased. In that respect the judiciary follows the action of the politi cal department— ( United States vs. Yorba, 1 WaU., 423.) At that time there was a Mexican pueblo atthe site of the present city of San Francisco. This term, " pueblo," hiis all the vagueness of signification of the English word " town," and is appUed 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, thougli it was of sufficient importance, as early as 1835, to have a Council [Ayuntamiento], composed of alcaldes and other officers, for its governraent. When our forces took possession of the town, citizens of the United States were appointed, by the miUtary 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 pubhc autlKU'lty, became en titled to the use of four square leagues of land, embracing 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 inhabitants of the town for building, cultivation, or other uses, the remainder being reserved for coramons or other public purposes. The 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 whicli were from officers of the army and navy. In December, 1848, -John HaU, a lieutenant in the navy, received frora 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 afterwards re linquishod by city, state, and congressional legishition. His title, therefore, if not so atthe time, subsequently bo- came perfect. In 1849 Hall became unwell, and his health was so much afi'ected 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 -lune, 1849, and remained with them until -June, 1851. During this period there were such indications of insanity thaf, by the advice of his physician and consent of his family, he was sent to the asylum at Frankford. There he remained under treat ment for insanity until -January, 1854, when he was re moved to the State insane asylum, where he died in Sep tember, 1860. On the 27tli of December, 1852, whilst he was in tho asylum at Frankford, he signed a power of attorney to one -Jaraes 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 appointed one David 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 ejectraent 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 his insanity, of -.attend ing to any business. The case was ti;ied at the October term of 1867, with a jury, whom -Judge Field charged, as follows: " Gentlemen, I do not propose to atteippt any nice or philosophical exposition of the subject of insanity. I should certainly fail if I raade the atterapt ; and if I could succeed, the result would not be of any ser vice to you in deterraining 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 liiid dowu by the au thorities to guide you in considering it, and then call your atteiifion briefly to the evidence in the case. 22 324 " The physicians who have been examined, and the text-writers, declare that it is impossible to give any consistent deflnition of insanity ; that no words can comprise the different forms and characters which this inalady may assume. The most coraraon 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 in.sanity, 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 derangeraent of the mental powers, but in the destitution of powers never possessed. " Mania is that form of insanity where the mental derangement is accompanied with raore or less of exciteraent. Soraetimes the excite raent araounts 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 raay 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 ease it is generally terraed raonoraania. " Dementia is th.at fbrm of insanity where the mental derangement is accompanied with a general enfeebleraent of the faculties. It is charac terized by forgetfulness, inability to follow any train of thought, and indifference to pa.ssing events. ' In deraentia,' says Pay, a celebrated writer on raedical jurisprudence, 'the mind is susceptible of only feeble and transitory irapressions, and manifests' but little reflection even upon these. They corae and go without leaving any trace of their presence behind thera. The attention is incapable of more than a momentary effort, one idea succeeding another -with but little connection or cohe rence. The mind has lo.st the power of comparison, and abstract ideas are utterly beyond its grasp. The meraory is peculiarly weak ; events the raost recent and raost 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 raeaning." " These coramon forms of insanity — mania, monomania, and dementia — present themselves in an inflnite variety of ways, seldom exhibiting themselves in any two cases exactly in the sarae raanner. Mania some tiraes affects, as already observed, all the operations of the raind ; and soraetiraes the mental derangement appears to be limited to particular subjects. Au 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 wisdora on other raatters. 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 raind ; they sho-w partial ipsanity, but this does not necesgarily unfit the individuals 325 affected for the transaction of business on all subjects. In a case which arose in the Prerogative Court of England (Dew vs. Clark, 3 Addams Eccl. R., 79), it was said by counsel that partial insanity was something unknown to the law of England. To this suggestion the Court replied: ' If he meant by this that the law of England never deems a person both sane and insane at the same time upon one and the sarae subject, the assertion is a raere truism. But if by that position he meant and in tended that the law of England never deems a party both sane and insane at different times ou the sarae subject, and both sane and insane at the sarae time on different subjects, there can scarcely be a position more destitute of legal foundiition, or rather there can scarcelj' be one more adverse to the current of legal authority.' In that case the Court cited the language of Locke, that 'a man who is very sober and of a right understanding in all other things, may, in one particular, be as frantic as any man in Bedlam ;' and of Lord Hale, who says, ' There is a partial insanity of mind and a total insanity ; in the first, as it respects particular things or persous, or in respect of degrees, which is the condi tion with very raany. especially melancholy persons, who' for the raost part discover their defect in excessive fears and grief, and yet are not wholly destitute of the use of reason.' "So, too, in dementiav where there is a general enfeebleraent of the raental 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 fara iliar objects. One faculty raay be greatly impaired — the memory, for ex ample — while other faculties retain some portion of their original vigor. The disease is of all degrees from slight weakness to absolute loss of rea son. The enfeebleraent usually progresses gradually — through a twilight, as it were, of reason, before the darkness of night settles upon the mind. " It is important to hear 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 quiry should first be, what degree of raental capacity is essential to the proper execution of the aet in question ; and then whether such capacity was possessed at the tirae by the party. It is evident that a very differ ent degree of capacity is required for the execution ofa 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 aet required no greater exercise of reason than is essential to the valid execution of a will of real property ; and the mithorities which determine the degree of capacity essential in such cases may properly be relied upon as furuisshing the proper rule in this case. And those authorities con- 326 cur, especially the later authorities, substantially in this: that it is only necessary to the validity of the will that the testator had suffi cient mind and memory to understand the business upon which he was engaged, andthe effect of the act he was doing. ' He must,' in the lan guage of Judge Washington, in Harrison vs. Eowan (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 ofthe 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, aud the manuer in which it is to be distributed between thera. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal forra. 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 thera in legal forra.' "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 coraplicated details, and provisions, the rule laid down by Judge Washington is sufficiently stringent. "According to that rule, it was raaterial 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 oh- . ject and effeot of the act he was doing ; iu other words, it was essential that he should recollect that he was the owner of the property mentioned ; that such property 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 witb those who allege the party's competency. " Again, in considering whether a particular act assailed for the alleged insanity of the party was valid or not, regard must be had, in the absence 327 of direct testimony on the point, to all the attending circumstances— the reasonableness of the act in itself, and its approvtil by the family and relatives of the p.arty. The reasonableness of the act, and the approval of the family aud relatives will not render the act valid, if the party were at the time insJ9 0 belief: 1st That the grant and .act of juridical poRses.sion were made subsequent to the acquisition of the country in 1846, and were fraudu lently .antedated, aud 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 frora 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, which was subsequently con firraed 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 frora the Law Agent of the United States, the Land Coraraission, and the District Court. "The District Attorney also alleges in the bill, upon inforraation and belief, that the approved survey is not iu conforraity with the boundaries given in the diseiio, or raap accorapanying the gr.ant 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 flxed in accordance with the vie-o's stated by him as to the location intended by the grant and act of juridical possession. "The fir.st 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 tbe LandCommission 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 ofthe 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 governraent to its inhabitants. How far these, concessions should be respected and how far enforced were the raatters 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, aud customs of the former governraent, the principles of equity and the decisions of the Supreme Court, so far as they were applicable. " B,y the transfer of California from Mexico to the United States, the rights of private property of the inhabitants were not afi'ected. They remained as underthe former government. The public property of Mex- 339 ico and sovereignty over the country alone passed to the United States. This was in accordance with the rule of public law, which is recognized by all civilized nations, when territory is ceded by one State to another. The obligation, therefore, to protect private rights of property devolved upon the United States without any forniiil declaration to that effect. But, in recognition of this obligation, Mexico obtained from the United States, in the treaty of cession, an express stipulation for such protection. And the term property, as applied 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- Itition of the treaty, to protect all private rights of property of the in habitants. The obligation rested for its fulfillment in the good faith of the governraent, and required legislative action. It could, therefore, only be discharged in such manner, and at such tiraes and upon such cpndi tions, as Congress raight in its discretion direct. In its discharge, such action was required as would enable the inhabitants to assert and raaintain their rights to their property in the Courts of the country as fully and abso lutely as though their titles were derived directly frora the United States. Where the titles were iraperfect, and such was the condition of nearly all the titles held in the couutry, further action, by way of confirmation o'r release from the new government, was essential. With respect to all such titles, and indeed, with respect toall matters dependent upon executory engageraents 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 thera. " By the act of March 3d, 1851, the legislative department prescribed the raode in which the provisions ofthe treaty should be carried out, and the obligations ofthe government to the former inhabitants discharged, so far as their rights respected the territory acquired ; and thus provided the means of separating their propertj' frora the public domain. That act created a Commission of three persons, to be appointed by the President, by and with the advice and consent of the Senate, for the express pur pose of a.scertai ning and settling private land clairas 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 ofits 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 frora the Spanish or Mexican government, was required, on pain of forfeiting his land, to present his claim , together with the documentary evidence and testimony upon which he relied in its support. The Com- 23 340 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 Coramissioners 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 which 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 ofthe claimant or the District Attorney, setting forth the grounds upon which the validity or invalidity ofthe 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 ^vas rendered by the Commission ers they were required tb prepare two certified transcripts of their pro ceedings and decision, and of the papers and evidence upon whioh the same were founded — one of which was to be transmitted to the Attor ney-General, and the other filed with the clerk ofthe District Court, and this filing operated as au 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 raost ample powers were vested in the Commission ers and the District Court to inquire into the merits of every claira ; 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 claira was finally confirraed, 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 thera 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 eould possibly be made of detecting frauds connected with the claim, 341 and whose first inquiry in every case was necessarily as to the authenti city and genuineness of the documents upon which the claim was founded. "We have a special jurisdiction of a like nature in the District Court to review tiie decision made by the Commission, and investigate anew the claim. We have principles prescribed for the government of both Commission and Court in these cases, and of the Supreme Court, upon appeal from their decisions, not applicable in ordinary proceedings, either at law or in equity. And, as slready stated, every person claiming land in the State was required to present his claim for investigation. The onerous duty thus thrown upon him was relieved of its oppressive char acter by the accompanying assurance, that, when his chaim was adjudged valid, the .adjudication should be flnal aud conclusive. "Ou principle, such adjudications cannot be reviewed or defeated by a Court of Equity, upou any suggestion that the' Commissioners and Court misapprehended tbe law, or were mistaken as to the evideuce before them, even if that consisted of fabricated papers supported by perjured testiraony. The very questions presented by the present bill were neces sarily involved in the proceeding before the Commissioners aud the Dis trict Court, and the credibility of the testimony offered was a matter considered by them. Whether the grant produced by the claimant was genuine, and the claim resting thereon was entitled to conflrmation, were the points at issue. The bill avers that the alleged gr.ant was not genu ine because it was ante-dated. But the genuineness of the document was the matter sub judice, and could not hava been established, and the claira based upon it affirraed, 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 forraal judgraents when obtained by fraud. The doctrine of equity in this respect is not questioned; it is a doctrine ofthe highest value in the adrainistration 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 whioh the same matter h.as been ouce tried, or so put in issue between the parties that it might have been tried. The judgraent rendered in such a case is itself the highest evidence that the alleged fraud did not exist, and estops the parties frora asserting the contrary. It is afterwards raere 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 Equity will"interfere to set aside or stay the enforcement of a judgment ofa Court having jurisdiction ofthe subject-matter and the parties, must consist of extrinsic collateral acts not involved in the consideration of the merits. They must be acts by which the successful party hiis prevented his adversary from presenting the merits of his case, or by which the jurisdiction of the Court has beeu imposed upon. 342 "All litigants are equally entitled to justice from the tribunals of the couutry; they have equally 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 comraits a fraud upon pub lic justice, which, resulting in private injury, raay be the ground of eq uitable relief against the judgment recovered. Thus if, through his in struraentality, 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 falsely 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 nou judicium, here est ; in scena, non in foro, res agitur. " The credibility of testiraony given in a case, bearing upon the issue, is not an extrinsic collateral act, but is a raatter 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 sarae 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, from defective recollection, will blend what they themselves saw or heard with what they have received frora the nar ration of others. Uncertainty as to the truth in a contested case will thus arise frora the iraperfection of human testiraony. In addition to this source of uucertainty 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 upou the trial of a cause, knowing not merely the uncertainty of huraan testiraony when honestly given, but that, if he has au unscrupulous antagonist, he may have to encounter frauds of this character. He takes the chances of establish ing his ciise 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 343 action be brought upon a promissory note, and issue be joined ou its ex ecution, and judgraent go for the plaintiff, and there is no appeal, or if an appeal be taken, and the judgraent be affirraed, 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 testiraony. 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 aftbrded 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 sub judice, and passed iuto judgment. "These views arein consonance with the iidj udged cases. We have looked in vain through all those cited hy the learned associate counsel in the Throckmorton Case for anything infringing upon them. In the Duchess 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 irapeached from within, yet, like all other acts ofthe highest judicial authority, could be impeached from without, and thiit fraud was an extrinsic collateral act which vitiated the most soleran proceedings of Courts of Justice. "In the Sheddeu Case (1 Macqueen, 535) the question was whether a judgraent of the Court of Sessions of Scotland against the legitiraacy 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 judginent 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 Broughara, was to be ' dealt with in the inferior Court before which its merits vvere brought ; that is to say, not the raerits 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 eases, and that is the question in this case.' " In Ferraor's Case (2 Coke, 77) the tenant continued to pay rent to his landlord after he had levied a fine with proclaraation to bar the inheri tance, and thus kept the latter in ignorance of that proceeding. The ten ant attempting, after the expiration of the lease, 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 bring 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 payraent of the rent was 344 in fact a declaration by the tenant that his relation to the landlord had not changed, and operated iis a fraud preventing the latter from asserting his rights. "Great stress is placed by the learned associate counsel upon these last two cases, but it is evident, from the stateraent we have made, that the fraud alleged in both cases was au extrinsic collateral act whicli pre vented the complaining party, in one instance, from having the merits of his case considered, and in the other 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, upou a suggestion of false testimony, documentary or oral, in the first case, there would be no end to litigation. T.he 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 raent. 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 inight years hence be filed to annul our judgraent aud reiustiite 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 sucb a system of proceduie, the settlement of land titles in this State would be postponed indefinitely, and the industries and iraproveraents, 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 ofthe 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 itscertained 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 rights of the parties to the property, or in the matter involved, or, at least, authorized to rerait the ease to a tribunal having adequate jurisdiction for that purpose. The present bill was not flled upon leave ; and this Court possesses no power to determine the right of the claimant, upon any review of the case, to a confirraation of his claira, and the only tribunal to which such a determination conld be re mitted has long since ceiised to exist. " But there are other and equally potential grounds ag.ainst tlie main- tenauce of the present suit. The Land Commission and the .District 345 Court, though exercising a special jurisdiction, were invested with very large and extensive powers. They were not, as already stated, bound in their decisions to any strict rules of technical law, but could be governed by the principles of equity in their widest scope. The result of their in quiries was to guide the government in the discharge of its treaty obliga tions. Considerations, therefore, which could not be presented to ordi nary tribunals, raight very properly be regarded by them. " After the determination of the Comraissioners, if against the United States, the coutrol of the proceedings was plivced with the Attorney-Gen eral. It rested with him exclusively to determine whether the appeal from the Comraissioners, taken by filing a copy of the transcript with the clerk of the District Court, should be prosecuted or disraissed. So also when an appeal was taken frora the decree of the District Court, he could, in the sarae way, direct its prosecution or dismissal. Considera tions of policy, as well as of strict right, might be deemed by him suffi cient to coutrol his action in this respect. In coraing to a deterraination on the subject, he was not restricted to an exaraination of the transcript transraitted 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 iu any case was not the subject of re view by any tribunal whatever, and it could only be revoked by the ap pellate Court upon his own application. " In the case of Yorba, the appeal from the decree of confirraation, 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 flnal. 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 which the claim of Yorba was founded, was thus forever put at rest. From that day it could never be successfully questioned iu any form of pro cedure, or by any tribunal known to our laws. It was a closed question for all tirae. " But this is not all. The defendants purchased their interests after the final decree. They are charged iu the bill, it is true, generally, with notice of the alleged frauds of the clairaant ; 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 governinent, through its Attor ney-General, had consented. They had a right, therefore, to rely im plicitly upon the decree, and rest in confidence upon the assurance of its •346 finality, given by the only officer of the United Stiites 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 inforraed. There is no law of Congress 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 revocation 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 liiw, he can take the necessary legal proceedings to recall the results of their action. But that is a very different matter frora institut ing or directing proceedings to vacate or recall patents founded upon de crees of a Coraraission or Court exercising a special and exclusive juris diction over the subjects investigated, where the law declares that such decrees shall be flnal and conclusive between the parties, and to which decrees the Attorney-General in office at that time assented. Those de crees established the oblig.ation ofthe 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 iu the case, to disregard the action of his predecessor, and to renew litigation at his pleasure respecting the titles of a whole people, upon a suggestion that false testimony may have been used in the original proceedings, the security which the holders of patents from the government issued upon such decrees have hitherto felt in their possessions, is unfounded and delusive. We raust have further evidence than is presented to us before we cau 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 narae of the United States, and that the District Attorney has been thus directed, his power iu this respect must be exercised in subordination to those rules of procedure and those principles of equity whicli govern private litigants seeking to avoid a previous judginent 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. Unless otherwise provided by statute, the same rules as to the admissi bility of evidence are then applied to them ; the same strictness as to 347 motions and appeals is enforced ; they must move for a new trial or take an appeal within the same time and in like manner, and they are equally bound to act upou evidence within their reach. And, when they go into a Court of Equity, they must equally present a case by allegation and proof entitling them to equitable relief. "Although, on grouuds of wise public policy, no statute of limitations runs against "the United States, and no laches in bringing a suit can be iraputed to thera, yet the facility with which the truth could originally have been shown by them if different frora the finding raade ; the changed condition of the parties and of the property from hipse of tirae ; the dif ficulty, frora this cause, of meeting objections which might, perhaps, at the tirae have been readily explained ; and the acquisition of interests by third parties upon faith of the decree, are elements which will always be considered by the Court in deterraining whether it be equitable to grant the relief prayed. All the attendant circurastances 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, auy extrinsic collateral acts of fraud constituting grouuds 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 docuraents in all cases where copies alone were offered 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 kuown 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 governraent, 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 possession of the United States, and should have been examined by the Law Agent of the government whenever any ofits 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, aud if the Law Agent was not satisfied with thera, 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 Ageut could still have insisted upon the production ofthe 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, whicli 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 raight perhaps have explained the alleged alteration of dates, has de ceased, iind third parties have acquired his interests, and, it is said, have made valuable aud expensive iraprovements upon the property. Courts of Equity will not entertain a suit to vaciite 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 upou 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 party. 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 previous 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 accord.Tuce with the map accompanying the grant, and the act of juridical pos,session. " 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 he 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, aud 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 governraent, and its attention had been spe cially directed to the document by agents appointed to ascertain -what grants had beeu made by the former government, who examined the records and reported a list of all grants fouud among thera. Allegations thus in conflict with the public records and public history of the country need not be specially controverted any raore than allegations at variance with the settled law. A fraudulent concealment by the claimant of a public record, uever in his possession, but always in the keeping of the governraent, and open at all times to the inspection of the world, was a thing impossible. The bill niight 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 surveys upon confirmed grants, except 849 as provided by the act of 1860, which did not embrace this case, was un der the control of the Land Department, aud was not subject to the su pervision of the Courts. Whether the survey conforms to the claira con firmed or varies from it, is a raatter with which the Courts have uothing to do; that belongs to a department whose action is not the subject of review by the judiciary in any ciise, however erroneous. The Courts can only examine into the correctness of a survey when, in a controversy be tween parties, it is alleged that the survey made infringes upon the prior rights of one of them ; and can then look into it ouly so far as may be necessary to protect such rights. They cannot order a new survey or change that already made. " It follows, frora the views we have expressed, that the demurrer to the bill must be sustained ; and as no amendment would reach the princi pal objection, nainely, that the alleged frauds are not such extrinsic col- liiteral acts as would justify the interference of equity with the decree of confirraation, the bill must be dismissed. "The principal objection to the bill in this case applies with equal force to the bills irr 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 iu a bill not verified aud 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 unfounded credulity. " The defendant, Howard, has filed an answer denying under oath, generally aud specifically, every charge against him, but by stipula tion on the argument, he is to have the benefit of the decision upou the demurrer. " As the questions presented in the several cases are of vast importance to the people ofthis 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." In this opinion Judges Sawyer and Hoffman concurred. The cases were appealed to the Supreme Court of the United States, wdiere the one against Throckmorton was argued aud confirmed. — (8 Otto, 61.) The disposition of the other cases followed this decision and were confirmed without contest. 350 The Eureka Case. From the time gold was discovered in California, in 1848, until 1866 — a period of eighteen years— there was no legislation by Congress for the sale of the mineral lands of the government. The value of property in raines on the pubUc lands, with the raachlnery and mills con structed either for their developraent or tbe separation of the precious metals from tbe ores — of gold at first, and afterwards of silver also — can hardly be estimated. It amounted, including the mining property in Nevada and adjoining Territories, as well as in California, to several hundred raillions of dollars. Until'1866 all this vast prop erty was governed by fhe regulations and customs of min ers as enforced and raoulded by the Courts, and sanctioned by the legislation of the Pacific States and Territories. Upon them the rainers 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 "Au act granting the right of way to ditch and canal owners over public lands, and for other purposes," of which Sena tor Stewart, of ^s'evada, was the author. This act, in its first section, declared that the raineral lands of the pubhc doraain, both surveyed and unsurveyed, were free and open to exploration and occupation by 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 custoras or rules of. miners, in their several mining districts, so far as the same were not in confiict 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 underthe customs or rules of miners, and 351 upon which a certain araount in laboi' and improvements had been expended. Although the sections of the act of 1866, containing these provisions, were repealed by the act of May 10th, 1872, " To promote the developraent of the raining resources of the United States," the provisions themselves were in substance re-enacted in the repealing act. The object of tbe 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 raining was done on placer claims. These became, by that time, so fully worked out as to yield little remuneration to the laborer. More profitable raining, both for gold and silver, was found in veins or lodes of quartz, and mills for crushing quartz were consequently erected in raining districts in great nurabers. Lttrge 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 oft' the super incumbent mass and separate the raineral. Litigation followed the passage of the acts of Congress, in many cases. The meaning of the terms 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 raetal found within them, aud this right was of great iraportance and value and was the occasion of much controversy. A case from fhe Eu reka Mining District, in the State of Nevada, between the Eureka Consolidated Mining Company and the Eichmond Mining Corapany, brought the question as to the raeaning of those terras before the Circuit Court for decision, at its -July terra in 1877. At the trial — which was had without fhe intervention of a jury — Judge Sawyer, and also Judge Hillyer of the Nevada District, occupied the bench with Judge Field. The case was tried, by 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 t.he act of Congress; 2d. Whether the patents ofthe plaintifi' were vahd, notwithstanding the end lines of the locations patented were not parallel, as required by tbe act of 1872; and 3d. Whether the ground in dispute had been assigned to the plaintiff' in a settle ment made in June, 1873. 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 preraises in controversy are of great value, araounting 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 emineut ability. "Whatever could inform, instruct, or enlighten the Court has been presented by them. Practical miners have given us their testimony as to the location and working ofthe 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 mining 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 Ciise, and have furnished an illustration of the truth that the highest courtesy is consistent with the mo.st earnest contention. " The mining ground which forms the subject of controversy is situ ated in a hill known as Euby Hill, a spur of Prospect Mountain, distant about two miles from the town of Eureka in Nevada. Prospect Moun tain is several miles in length, ruuning in a northerly and southerly course. Adjoining its northerly end is this spur called Euby Hill, which extends thence westerly, or in a southwesterly direction. Along and through this hill, for a distance slightly exceeding u. raile, is a zone of 353 limestone, in which, at different places throughout its length, .and in va rious forms, mineral is found, this mineral appearing sometiraes in a se ries or succession of ore bodies raore or less closely connected, sometimes in apparently isolated chambers, and at other tiraes in what would seem to be scattered grains. And our principal inquiry is to ascertain the character of this zone, iu 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 1866 aud 1872, under which the parties have acquired whatever rights they possess. In this inquiry the first thing to be settled is the meaning ofthe term in those acts. This mean ing being settled, the physical characteristics aud the distinguishing fea tures of the zone will be considered. " Those acts give no definition ofthe terra. They use it always in con nection with the terra vein. The act of 1866 provided for the acquisition of a patent by any persou or association of persons clairaing ' 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 raust receive that interpretation which will include all the in stances enuraerated as comprehended by thera. The definition of a lode given by geologists is, that of a fissure iu the earth's crust filled with mineral raatter, or more accurately, as aggregations of miucr.al 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 nuraber of mines in the States of Nevada aud California, and the Territories of Utah and Colorado, says that he has been accustomed as a mining engineer to attach very little importance to those cases of classification of deposits, which simply in volve the referring ofthe subject back to verbal definitions in the books. The 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 flrst. As used by miners, before being defined by any authority, the term lode simply raeant 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. Sorae 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 ofthe same origin. Cinnabar is not fouud 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 354 in-place, bearing, cinnabar. Any definition of lode as there used, which did not embrace deposits of cinnabar, would be as defective as if it did not erabrace deposits of gold or silver. The deflnition raust apply to de posits of all the raetals named, if it apply to a deposit of any oue 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 terras. They were framed for the protection of miners in the claims which they had located and developed, and should receive such a construction as will carry out this purpose. The use of the terms vein and lode in connection with each other in the act of 1866, aud their use iu connection with the term ledge in the act of 1872, would seera to indicate that it was the object ofthe 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 atjd 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 raade by some force of nature, in which the mineral is deposited, would seem to be essential to the definition of a lode in thejudgmentof 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 and under it, would equally coustitute 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 raatter Ibund through a mineralized zone or belt comiug frora the same source, impressed with the sarae forras, and appearing to have been created by the same pro cesses. " Exaraining now, with this definition in mind, the features ofthe zone which separate and distinguish it from the surrounding country, we ex perience little difficulty in deterraining its character. We find that it is contained within clearly defined liraits, and that it bears unraistakable marks of originating, in all its parts, under the influence of the sarae 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 iu thickness frora less than an inch to seventy or eighty feet. At the east eud of the zone, in the Jackson mine, the quartzite and shale approach so closely as to be separated by a bare seam, less thau an inch in width. From that point they diverge, until on the surface in the Eureka raine, they are about 500 feet apart, and on the surface in the Eichmond mine, about 800 feet. The quartzite has a general dip to the north, at an angle of about 45 degrees, subject 355 to some local variations, as tiie course changes. The clay or shale is more perpendicular, having a dip at an angle of about 80 degrees. At some depth under the surface these two boundaries of the limestone, de scending at their respective angles, may corae together. In some of the levels worked, they are uow only from two to three hundred feet apart. "The limestone found between these two limits — the wall of quartzite and the seam of chiy or shale — has, at some period ofthe world's history, heen subjected to some dynamic force of nature, by which it has been broken up, crushed, disintegrated, aud fissured iu .all directions, so as to destroy, except in three or four places of a few feet each, so far as explora 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 reception of the mineral which, in ages past, came up from the depths below in solution, and was deposited iu it. Evideuce that the whole mass of limestone has been, at some period, lifted up aud moved along the quartzite, is fonnd iu the marks of attrition engraved on the 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 appear. Below the quartzite no one has penetr.ated. Above the shale the rock has not been thus broken and crushed. Stratification exists there. If iu sorae isolated places there is found evidence of disturbance, that disturbance has not been sufficient to aft'ect the stratification. The broken, crushed, and fissured condition of the limestone gives it a specific, individual charac ter, by which it can be identified and separated from all other limestone iu 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 aud 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 fouud iu the rock bsyoud the .shale, its h.ard and unbroken character not permitting, or at least opposing such actiou from the water above. "Oxide of iron is also found iu numerous places throughout the zone, giving to the miner assurance that the metal he seeks is iu its vicinity. "This broken, crushed, aud fissured condition of the limestone, the presence of the oxides of iron, the caves or chambers we have raentioned, with the wall of quartzite and seam of clay bounding it, give to the zone, in the eyes of the practical miner, au individuality, a oneness as com plete as that which the most perfect lode in a geological sense ever pos sessed. Eiich ofthe characteristics named, though produced at a differ ent period frora the others, was undoubtedly caused by the same forces operating at the sarae tirae upou the whole body of the liraestone. "Throughout this zone of liraestone, as we have already stated, min eral is found in uumerons fissures of the rock. According to the opin- 24 356 ions of all the scientific men who have been examined, this mineral was brought up in solution frora 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 forra and size, and would also find its way in minute particles in the loose material of the rock. The evidence shows that it is sufficiently 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 for years was superintendent of the mine ofthe 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. Eiiymond, after giving a like extended account of the character ofthe ground, and his opinion as to the causes ofits forraation, and stat ing with great minuteness the observations he had raade, 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 his examination of the ground and his theory 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 ofthe same sort; and that the whole mass ofthe limestone is irregularly impregnated with the ore. I nse 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 disseminated 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 raetal, it is true, is not adopted by the men of science produced as wit- 357 nesses by the defendant, the Eichmond (Jorapauy. These latter gentle men, like the others, have had a large experience in the examination of mines, and some of them have acquired a national reputation for their scientific attainments. No one questions their learning or ability, or the sincerity with which they have expressed their convictions. They agree with the plaintiff's witnesses as to the existeuce of the mineralized zone of liraestone with an underlying quartzite aud an overiying shale; as to tbe broken and crushed condition of the limestone, and substantially as to the origin of the raetal and its deposition in the rock. In nearly all other respects they disiigree In their judgment the zone of limestone has no features of a lode. It has no continuous fissure, siiys Mr. King, to raark it as a lode. A lode, he adds, must have a foot-wall .and a hanging-wall, and if it is broad, these must connect at both ends, and. must connect downwards. Here there is no hanging-wall or foot-wall ; the liraestone only rests as a m.atter of stratigraphical fact on underlying quartzite and the shale overlies it. And distinguishing the structure at Euby Hill from the Comstock Lode, the same witness says that the one is a series of sedimentary beds laid down in the ocean and turned up ; the other is a fissure extending between two rocks. " The other witnesses of the defendant, so far as they have expressed any opinion as to what constitutes a lode, have agreed with the views of Mr. King. It is impossible not to perceive that these gentlemen at all times carried iu their rainds the scientific definition of the terra as given by geologists — that a lode is a flssure-in the earth's crust filled with min eral matter — and disregarded the broader, though less scientific, defini tion of the miner, who applies the term to all zones or belts of metal- bearing rock ].ying within clearly marked boundaries. For the reasons already stated, we are of opinion th.at the acts of Congress use the term in the sense in which miners understand it. " If the scientific definition of a lode, as given by geologists, could be accepted as the only proper oue in this case, the theory of distinct veins existing in distinct fissures of the limestone, would be not only plausible, but reasonable ; for that definition is not raet by the conditious iu which the Eureka miner.alized zone sippears. But as that definition cannot be accepted, and the zone presents the case of a lode as that terra is under stood by miners, the theory of separate veins, as distinct and discon nected bodies of ore, falls to the ground. It is, therefore, of little con sequence what name is given to the bodies of ore in the limestone, whether they be called pipe veins, rake veins, or pipes of ore, or receive the new designation suggested by one of the witnesses, they are but parts ' of one greater deposit, which permeates, iu a greater or less degree, with occasional intervening spaces of barren rock, the whole mass of limestone, from the Jackson mine to the Eichmond, inclusive. " The acts of Congress of 1866 aud 1872 dealt with a practical necessity of miners ; they were passed to protect locations on veins or lodes, as miners understood tliose terms. Instances without number exist where 358 the meaning of words in a statute has been enlarged or restricted and qualified to carry out the intention of the Legislature. The inquiry, where auy uncertainty exists, always is as to what the Legislature in tended, iind wheu that is ascertained it controls. In a recent case before the Supreme Court of the United States, singing birds were held not to be live aniraals, within the meaning of a revenue act of Congress.— (Riche vs. Smgthe, 1.3 Wall., 16'2.) Aud in a previous case, arising upon the construction of the Oregon Donation Act of Congress, the terra, » single man, was held to include in its raeaning an unmarried woman. — —(Silver vs. Ladd, 7 Wall., 219.) If any one will examine the two deci- .sions, reported as they are in Wallace's Eeports, he will find good rea sons for both of them. " Our judgraent beiug that the limestone zone in Euby Hill, in Eu reka District, lying between the quartzite aud the shale, constitutes, within the meaning of the acts of Congress, one lode of rock bearing metal, we proceed to consider the rights conveyed to the parties by their respective patents frora the United States. All these p.atents .are founded upon previous locations, taken up and improved according to the cus toms and rules of miners in the district. Each patent is evidence of a perfected right in the patentee to the claim conveyed, the initiatory step for the acquisition of which was the original location. If the date o^ such location be stated in the iustruraent, or appear frora the record of its entry in the local land office, the patent will take effect by rela tion as of that date, so far as may be necessary to cut off all intervening claimants, unless the prior right of the patentee, by virtue of his earlier location, has been lost by a failure to contest the claim of the inter vening claimant, as provided in the act of 1872. As in the system estab lished for the alienation of the public lands, the patent is the consum mation of a series of acts, having for their object the acquisition of a title, the general rule is to give to it au operation by relation at the date of the initiatory step, so far as may be necessary to protect the patentee against subsequent claimants to the same property. As -was said by the Supreme Court in the case of Shepley vs. Cowan (1 Otto, 338), where two parties are contending for the same property, the first in time, in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right. " But this principle has been qualified in its application to patents of mining ground, by provisions in the act of 1872 for the settleraent of adverse claims before the issue of the patent. Under that act, when one is seeking a patent for his mining location and gives proper notice of the fact as there prescribed, any other claimant of an unpatented location ob jecting to the patent of the claim, either on account of its extent or forra, or because of fisserted prior location, must come forward with his objections and present thera, or he will afterw.ards be precluded from objecting to the issue of the patent. While, therefore, the general doc trine of relation applies to mining patents so as to cut off intervening 359 claimants, if any there can be, deriving titie from other sources, such perhaps as might arise from a subsequent location of school warrants or a subsequent purchase from the State, as in the case of Heydenfeldt vs. Daney Gold Mining Company, reported in the third of Otto, the doctrine cannot be applied so as to cut off the rights ofthe earlier patentee, under a later location where no opposition to that location w.as made under the statute. The silence of the first locator is, under the statute, a waiver of his priority. " But from the view we take of the rights of the parties under their respective patents, and the locations upon which those patents were is sued, the question of priority of location is of no practical consequence in the case. " The plaintiff is the patentee of several locations on the Euby Hill lode, but for the purpose of this action it is only necessary to refer to three of them— the patents for the Champion, the At Last, and the Lu pita or Margaret claims. The first of these patents was issued in 1872, the secoud in 1876, and the third in 1877. Within the end lines of the locations, as patented in all these cases, -when drawn down vertically through the lode, the property in controversy falls. Objection is taken to the validity of the last two patents, because the end lines of the sur face locations patented are not parallel, as required by the act of 1872. But to. this objection there are several obvious answers. In the flrst place, it does not appear upon what locations the patents were issued. They may have been, and probably were, issued upon locations made under the act of 1866, where such parallelism' in the end lines of the surface locations was not required. The presumption of the law is, that the officers of the Executive Department, specially charged with the su pervision of applications for mining patents, and the issue of such patents, did their duty ; and in an action of ejectraent, mere surmises to the con trary will not be listened to. If, under any possible circumstances, a patent for a location without such parallelism may be valid, the law will presume that such circumstances existed. A patent of the United States for land, whether agricultural or mineral, is something upou which its holder can rely for peace and security in his possessions. In its potency it is ironclad against all mere speculative inferences. In the second place, the provision of the statute of 1872, requiring the lines of each claim to be parallel to each other, is merely directory, and no consequence is at tached to a deviation frora its direction. Its object is to secure parallel end lines drawn vertically dowu, and that was effected in these cases by taking the extreme points of the respective locations on the length of the lode. In the third place, the defect alleged does not concern the defend ant, and no one but the government has the right to complain." The -Judge then proceeded to aay that both the defend ant and the plaintifi', by virtue of their respective patents, whether issued upon locations under the act of 1866, or s 360 under the act of 1872, weredimited to veins or lodes lying within 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 thi^ question became important only whei'e the lines of one patent overlapped the other; that here neither plaintifi' nor defendant could pass outside of the end lines of its own location, whether they were made before or after those upon which the other [larty relied; and as the ground in dispute lay within planes drawn vertically downward through the end lines of the plaintift''s location, the conclu sion was that the ground wiis the property of the plaintifl'. -Judgment was accordingly ordered in its favor. The same conclusion was reached by the Court upon the agreement of the parties ofthe 16th of -June, 1873. -Judgment being entered for the plaintiff', an appeal was taken to the Suprerae Court of the United States, and the judgment was there affirraed, the Court placing its decision upon the agreement of the parties. This agreement, how ever, could not have settled the controversy, unless the lines drawn on the surface mentioned in the agreement, cut through the whole extent of the raining 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 would 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 pueblo, or town, at the site ofthe present city of San Francisco — its claira to the use of four square leagues of land — the power of the Mexican Alcaldes to distribute these lands 361 in small parcels to the inhabitants of the town for build ing, cultivation, and other uses, and the exercise of a sira- iliar power by the Alcaldes appointed by our military and naval commanders after the conquest of the country — have been stated. — See p. 322. As the Supreme Court of the United States said in Tre- nouth vs. San Ffancisco: -" Upon the sudden increase of population at that place, following the discovery of gold, tbe Alcaldes were called upon for building-lots in great numbers, and those officers distributed them with 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 troublesorae 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, imraediately proceeded to take as much of it for themselves as they could conveniently enclose and hold. Thus the town was soon filled with an active and restless population, making large and expe'nsive improvements upon lands held in some instances under grants from fhe Alcaldes, and in others bythe right of prior possession. Sometimes the sarae parcel was claimed by dift'erent 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 California was organized as a State, San Fran cisco was incorporated as a city by its Legislature, and municipal officers were elected to administer its govern raent. As has happened in raany other cases; the city con tracted more debts than its revenues authorized, and did not always raake suitable provision to raeet its obUgations -362 as they matured. Numerous suits were consequently instituted against it and judgments recovered. Execu tions were issued upon these judgments and levied upou the land claimed by the city. Those who 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 sorae instances hundreds "of acres, was in consequence struck off' at a raere norainal price. What tended to add to the confusion of titles was the diff'erent opinions entertained respecting them by the Supreme Court of the State at dift'erent times. The first bench of judges of the Court decided that San Francisco never was a pueblo, had no proprietary rights, and that tbe grants made by the Alcaldes appointed by the American officers after the conquest, conveyed no title. The successors of these judges decided just the reverse, and held that San Francisco was a pueblo, that it had proprietary rights to four square leagues, and fhat the change of flags worked no change in those rights or fhe 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 Fnincisco had succeeded to its proprietary rights, she raade a chiim to the lands of fhe pueblo, as its successor, and when the Board of Land Com raissioners was created by fhe act of Congress of March 3d, 1851, she presented the claira for confirmation. In December, 1854, the Board confirmed this claim for a por tion of the four square leagues. Dissatisfied with the limi tation of the claim, the city appiealed frora the decree of the Board to the District Court of the United States, where the case reraained undecided until Septeraber, 1864 — a period of nearly ten years. Pending this appeal, the city passed an ordinance, known in her history — frora the name of its author — as the " Van Ness Ordinance," the object of which, as expressed in the title, was " for the settlement and quieting of the land titles in the city of San Fran- -363 Cisco." It relinquished and granted all the right and claim ofthe city to land within the corporate Umits, as de fined by the charter of 1851 — with certain exceptions — to parties in the actual possession thereof, by tliemselves or tenants, on or before the first of -January, 1855, provided such possession was continued up to the time of the intro duction of the ordinance into the Common CouncU, or if interrupted by an intruder or trespasser, had been or might be recovered Uy legal process. And it declared that for all the purpo.ses contemplated by the ordinance, persons should be deemed possessors, who held titles fo lands within those limits by virtue of a grant made bj^ any ayuntamiento, town council, alcalde, or justice of the peace of the former pueblo, before the 7th of -Julj', 1846, or by virtue of a grant subsequently made by those authorities, within certain liraits 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 book of records in the control of the recorder ofthe county previous to April 3d, 1851. In March, 1858, the Legislature ratified and con firmed 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 the ultimate determination of the question either way; and directed, on the itssumpfion that the land was jDublic land, that an entry of it be made at the proper land office of the United States, and declared that whatever title might be acquired, either on a confirmation of fhe 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 brought 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 that a Mexican pueblo, with an interest of some sort in the lands, had existed at the site of the city 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 dift'erent 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 propriefai'}' rights, the eft'ect of the change of sovereignty, the powers of alcaldes in the disposition of municipal lands, and the eft'ect of the Van Ness Ordinance, and the confirraatory act of the Legislature, were thoroughly and fully pre sented. The raagnitude of the interests involved, the pre vious uncertainty in relation to the law, and the character and erudition of the counsel eraployed, attracted very general attention to the case. In April, 1860, the opinion of the Court, prepared by Judge Baldwin arid concurred in by -Judge Field, was de livered. That opinion is remarkable for the exhaustive learning and research it exhibits upon the points dis cussed. The law was est.ablished with such precision and clearne.ss 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 SujJreme Court of the United States. The Court held, 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 tbe public uses 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 thes^ lands were held were public and politi- 365 cal in their nature, and as such had been, since the organi zation ofthe State, under the control of the I^egislature; that the Van Ness Ordinance and the confirmatory act of the Legislature vested in the persons therein described a title to the lands mentioned, and that the city held the lands, not already disposed of by herself, unafi'ected by sheriff' sales under executions against her. By this decision the title of the city to her public squares, streets, sites for school-houses, city hail, engine-houses, and other public buildings 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 thus secured to the city or to persons in possession. In order to a complete settlement of the title, however, it was still necessary to obtain the action of the tribunals of the United States upon the claim raade by the city as successor of the pueblo. As already stated, the appeal to the District Court from the decision ofthe Commissioners had not been acted upon. By the 5th section of the act of Congress, entitled "An a-ct to expedite the settleraent of titles to lands in the State of California," passed -July 1, 1864, all the right and title of the United States to land within the corpo rate liraits 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 Ness Ordinance.* Thus, whatever was essential to perfect the title to parties holding under that ordinance, and to the city, was cora pleted. That section was drawn by -Judge Field. The exceptions enumerated related to lands previously or then occupied by the United States for miUtary, naval, and other purposes, or such parcels as raight be subsequently * 13 stats, at Large, 333. 366 designated for that purpose by the President within a year after the return to the Land Oflace of an approved plat of the city liraits. But the claim of the city — as successor of the pueblo — was for a much greater quantity than the land embraced within the charter Umits of 1851, and, by the 4th section of the act raentioned, authority was given to transfer the case pending in the District Court to fhe Circuit Court of the United States. The case was accord ingly transferred in Septeraber, 1864, and it was decided in October of that year. In deciding the case -Judge Field gave the following opinion : " This case comes before this Court upon a transfer from the Di.strict 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 Comrais 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 Siiu 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 Land 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 Noveraber, 1833, the Pueblo of San Francisco was created a municipal government, and became invested with all the rights, proiierties, 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 governraent of the United States, July 7th, 1846, iind until the pas sage ofthe act ofthe Legislature ofthe State of California incorporating the city ; and that she thereupon succeeded to the property of the pueblo, and has a good aud lawful claira to the same. " In Deceraber, 1854, the Board of Commissioners confirmed the claim of the city to a portion of the four square 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 Zaraorano docuraent. The spuriousness 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 367 the clerk o/tlie District Court. The appeal was by statute for the bene flt of the party against whom the decision was rendered — in this case of both parties — of the United States, which controverted the entire claim, and of the city, which asserted a claim to a larger qu;intity 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, upou 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 flnal decree. The case, therefore, reraained iu 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 iu 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. Eitchie (17 How., 534), ' is to be regarded as an original proceeding — the removal of the transcript, papers, and evi dence into it frora the Board of Coramissioners being but a mode of pro viding for the institution of the suit in thiit Court. The transfer, it is true, is called au appeal ; we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The District Court isnot conflned 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 nuide evidence in the District Court; and also upon such further evi dence as either party raay see fit to produce' " But though the whole issue is thus open, the dismissal of the appeal on the part of the United States raay very properly be regarded as an as sent by the government to the main fiicts upou which the claira ofthe city rests, nainely : the existence of an organized pueblo at the site of the present city upon the acquisition ofthe couutry 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 uot, therefore, deem it withiu the line of his duty to controvert these positions, but on the con trary adraits them as facts in the case, contending only that the lands 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 forraer 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 laud heretolbre re served or occupied bythe 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, therefore, 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 ofthe city of San Fr.ancisco, which is very 368 fully presented in the elaborate opinion filed by the Commission on the rendition of its decision. Since that decision was made the question hsis 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 iu addition to the arguments thus fur nished, it is found in the able and exhaustive brief of the counsel of the eity. The docuraents 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 au Ayuntamiento composed of Alcaldes, Eegidores, aud 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 offlcers*'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 before this Court, relates to the extent of the lands in which the pueblo was interested. It is not pretended th.at such lands were ever marked off and surveyed by competent authority. It is adniitted, as already stated, that the .so-called Zamorano docuraent, given in evidence, is spuri ous. The question presented must, therefore, be deterrained by reference to the laws of Mexico at the date of the conquest. " As stated by the Coramissioners in their opinion, there can be no doubt that by those laws, pueblos or towns, and their residents, were en titled to the use and eujoj'ment of certain lands within the prescribed liraits iminediately contiguous to and adjoining the town proper ; that this right was coinmon to the cities and towns of Spain from their first organization, and was incorporated b3'iher colonies into their municipal system 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 towu, when once established and officially recognized, becarae entitled, for its own use aud the use of its inhabitants, to four square leagues of land. The compila tion known as the Recopilacion de Leyes de las Indias contains several laws relating to this subject. The Sixth Law of Title Five, of Book Four, pro vides for the establishment of towns by contract with individuals, aud upon compliance with the conditions ofthe contract, for the grant of four squ.are leagues of land, to be laid off in a square or prolonged form, ac cording to the character of the couutry. " The opinion of the Assessor or legal adviser of the "Vice Eoyalty of New Spain given to the Commaudante General in October, 1785, upou 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 369 the grants ' Ciinnot nor ought to be raade to them within the boundaries assigned to each pueblo, which, in conformity with the Law Six, Title Five, Liber Four ofthe Eecopilacion, must be four leagues of land in a square or oblong body, according to the nature of the ground ; because the petition ofthe new settlers would tend to make them private owners ofthe forests, pastures, water, timber, wood, and other advantages ofthe lands which may be assigned, granted, and distributed to thera, aud to deprive their neighbors of these benefits. It is seen at once that their claira is entirely contrary to the directions of the foreraentioned laws, and the express provision in Art. 8 of the Instructions for Settleraents (Poblaciones) in the Californias, according to which all the -waters, past ures, wood, aud timber, within the liraits which in conforraity to law may be allowed to each pueblo, raust be for the common advantage — so that all the new settlers may enjoy and partake of thera, raaintaining thereon their cattle, and participating of the other benefits that raay be produced.' " 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 appliciible to all new towns that shonld be subsequently established withiu the general coinanrfanei'o, which in cluded the province of California. They gave miuute directions for the forraation and governraent of the new pueblos, and referring to the laws ofthe Indies already cited, declared that there should be granted to the towns four leagues of land in a square or prolonged form. They also pro vided for the distribution of building and farming lots to settlers, the laying out of pasture lauds and lands for t\-\e propios, the residue to con stitute the egidos or coraraons for the use ofthe 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 frora Spain. They were recognized in the regulations of November,- 1828, which were adopted to ciirry 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 docuraents in the archives of the former government in the custody of the Surveyor-General. The report of Jimeno, for many years Secretary ofthe Government of California, found in the expediente of Dona Castro made in February, 1844, is cited hy the Commissioners in their opinion as removiug all doubt on this point. The report is as follows : " ' Most Excellent Goveenor. — The title giveu to Dona Castro is drawn, subject to the conditions that were iuserted in many other titles during the time of Gen. Figueroa, in which they subjected the parties to pay censas (taxes) if the land proved to belong to the egidos of the town. " ' I understand that the town of Branciforte is to have for egidos of its population four square leagues, in conformity to the existing law of the 370 Recopilacion of the Indies, iu volume the sccoud, folios 88 to 149, iu which it mentions that to the new towns that extent may be marked, to whicli effect it would be convenient that your Excellency should commission two persons deserving your coufidence, in order that accompanied by the Judge of the Town, the measurement indicated may be made, and it may be declared for egidos 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 may deem it convenient. " ' Monterey, February Sth, 1844. Manuel Jimeno.' " The documents to which reference has been made are sufficient to establish the positiou that pueblos once forraed and officially recognized as such, becarae by operation of the general laws entitled to have four square leagues of land assigned to thera, for their use and the use of their inhabitants. It does not appear that formal grants were made to the new pueblos, though iu 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 aud designation. " It follows from these views that the pueblo, which is admitted to have been regularly established at the site of S^n 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 country, 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 the right or title held bypueblos to the lands assigned to them. The govern ment undoubtedly ret.ained a right to control their use and disposition, and to appropriate them to public uses until they had been vested iu private proprietorship. Nuraerous laws have been cited to show that the titie remained absolutely iu the governraent. The sarae laws were cited to the Suprerae Court of this State when the subject was before that tri bunal, and in relation to thera 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 thein to use and dispose of thera in the raanner 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, who 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 auy sovereign St.ate, and raust, of course, have existed iu the absolute monarchy of Spain, where .the property of private' corporations and individu.als wtis to a great de gree subject to the royal will and pleasure' — (Hart c.s. Bnrnett, 15 Cal., 371 569.) And referring to objections to the theory of absolute titie in the pueblo, and the questions which upon that view inight 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 offlcers who administered them, and who must be pre sumed to have interpreted them correctly. It is, that the lands 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 lute property, with full right of disposition and alienation, but to be held by them iu trust for the benefit of the entire community, with such powers of use, disposition, and alienation, as had been already or raight afterwards be conferred for the due execution of such trusts, upon such pueblos, or upon their officers.'— (Jrf., 573.) And this view, the Court adds, fully reconciles the apparently conflicting disposition of the laws and the commentaries of publicists respectiog 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 which I have raade frequent reference, and the able brief of counsel will furnish amplp raaterials. " A decree will be entered confirming the claim of the City of San Francisco to a tract of land, situated in the county of San Francisco, and erabracing so rauch 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 confirraation 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 frora 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 foUowing extract, is from the opinion of the Supreme Court of the State, in Hart V3. Burnett, reported in 15 California Reports : "On the third of November, 1834, the Territorial Deputation authorized the election of an Ayuntamiento, to reside 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 otfice, and the Alcalde was alao to perform the judicial functions which the laws con ferred upon him. This decree was communicated to the Military Commandant by the Governor, on the fourth of November, 1834. An election was accordingly held . on the seventh of Pecenib.^r, 1834, at the Presidio of San Francisco, and the Ayunta- 25 372 A motion for a rehearing having been aftei-wards made, the decree entered 'was modified, and as finally settled was not entered 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 noi'thern portion of the peninsula, upou 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 under 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 the city. From this decree appeals were taken to the Suprenae 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 the 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 ganie place, whic-h was then otficially designated as the Pueblo of San Francisco. Other elections of the same character were subse quently held ; and there are numerous otficial 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 .^.Icaldes, Regidores, and other municipal otBcers. -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 tirae tmd at that place, of such an organization, whetiier corporate or incorporate. And that fact is proved by the otficial returns of elections, by the official acts of the Governor and of the Territorial or Departmental Legislature, by the otficial 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 /oct, we refer to the election returns of December 7th, 1834, December 13th, 1835, December 3d, 1837, and December Sth, 1838; to the Governor's letters of January 31st, 1835, October 26t.h, 1835, January 19th, 1836, January 17th, 1830, and November 14tti, 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 officers of the Territorial or Departmental Government of California." — (15 Cal., 540.) 373 three years; and inasmuch as the decree ofthe Circuit Court was found to give very general satisfaction, and a desire was freely expressed that a final end of this litiga tion be arrived at on the basis of that decree, .Fudge Field prepared a bill, which was introduced and passed by the united assistance of the whole delegation iu Congress from California and l!Tevada, quieting the title of the city to all lands embraced within the decree of confirmation. This act of Congress became a law on the Sth of March, 1866. 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 confirmed, subject to certain exceptions and reservations, and upon trust that all the lands not previously granted by the 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 for public uses. Shortly afterwards the appeals to, the Supreme Court were dis missed by stipulation ofthe parties, and the litigation over the source of title to the lands within the city was thus settled and closed. As has been adjudged by the Su preme Court of the United States, the litle 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 dehvered 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 by 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 following are the cases in the Circuit Court: 374 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 he it further enacted, That all the right and title of the United States to the lands within the corporate liraits of the City of San Francisco, as defined in tbe 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 ofthe 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 snch 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 Office, by the Surveyor- General, of an approved plat of the exterior limits of San Francisco, 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 justraent 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 March 8th, 1866, entitled "An act to quiet the title to certain lands within the corporate limits ofthe city of San Francisco," is as follows: " Be it enacted by the Senate and Souse of Representatives of the United States of America in Congress assembled, That all the right and titie of the United States to the land situated within the corporate liraits of the city of San Francisco, in the State of California, confirraed 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 the said eity of San Francisco and its successors, and the claim of the said city to said land is hereby confirmed, 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 terras 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 city for public uses : Provided, how ever. That the relinquishment aud grant by this act shall not interfere with 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 influence it was passed by that body. In the House, Mr. McEuer took charge of it, and, with the aid of the rest of the State del egation, and of the delegation from Nevada, its passage there was 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 piibUc purposes aud for the park, was occupied by settlers or had been purchased by thera, an assessment was levied bythe 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 the moneys obtained in this way were apphed to compensate those whose lands had been thus appro priated. The Chinese in California, and. the Legislation of the State and of the City of San Francisco against THEM. The presence of Chinese in California, and the constant immigration 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 Government. 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, both of the State and of the city of San Francisco, 377 against the Chinese, has been in direct chsregard of this well-settled doctrine of constitutional law. Again, the President and Senate of the United States are vested exclusively with the treaty -making power of the government. That power extends to all subjects of for eign commerce, to all foj-ms of intercourse with foreign nations, and may prescribe the rights and privileges which shall be accorded to their citizens or subjects. By treaty, the conditions upon which foreigners shall be allowed to reside, do business, purchase and hold property in the country, may be designated. And the Constitution 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 land." As will be seen hereafter, the legislation — State and municipal — of California, 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 any person within its jurisdiction " the eqdal protection of the laws" — a provi sion which makes equality before the law the constitu tional right of every person within the territory of the United States, from 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 disregard 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 allowed 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 j'ielded by compulsion to the English, 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 States 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 aud 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 their 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 apper taining to them, the special protection of the local authori- 379 ties of government, who shall defend them from all insult or injury of any sort on the part of the Chinese. If their dwellings or property be threatened or attacked by mobs, incendiaries, or other violent or lawless persons, the local officers, on requisition of the consul, will immediately despatch a military force to disperse the rioters, and will apprehend the guilty individuals and punish 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 been made that a single article has ever beeu 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, 1847, British ships-of-war captured some Chinese forts ; and in 1856 the two nations were in open war. President Buchanan sent Hon. William B. Reed, of Philadelphia, to watch the course of events, and to act the part of media tor and peace-maker when opportunity should offer. He endeavored, iu vain, to persuade the Chinese officials to yield to the demands of England. But in the midst of the troubles with that country, and on the 18th of June, 1858, a new treaty was signed between the United States and China. In it the Chinese government reiterated, in equally strong language, their cordial regard and appre ciation of the United States. In its first paragraph it de clares that "there shall be, as there have always been, peace and friendship between the United States of Amer ica and the Ta Tsing Empire, and between their people, respectively. They shall not insult or oppress each other for any trifling cause, so as to produce au estrangement between them; and if any other nation should act unjustly or oppressively, the United States will exert their good offices, on being informed of the case, to bring about an 380 amicable arrangement of the question, thus showing their friendly feelings."— (12 Stats, at Large, 1,023.) In article eleven it declares that " all citizens of the United States of American in China, peaceably attending to their aftairs, being placed on a common footing of amity and good-will with subjects of China, shall. receive and enjoy for themselves and everything appertaining to them, the protection of the local authorities of government, who shall defend them from all insult or injury of any sort. If their dwellings or property be threatened or attacked by mobs, incendiaries, or other violent or lawless persons, the local officers, on requisition of the consul, shall imme diately despatch a military force to disperse the rioters, ap prehend the guilty individuals, and punish them with the utmost rigor of the law." And in article twenty-nine, protection is given to Chris tians teaching and following the principles of their rehg ion. It is as follows: " The principles of the Christian re ligion, as professed by the Protestant and Eoman Catholic Churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quieti}^ profess and teach these doc trines shall not be harassed nor persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teaches and practices the principles of Christi anity, shall in no case be interfered with or molested." It is seldom that the annals of diplomacy exhibit such a manifestation of trust and friendship. In 1868 Hon. Anson Burlingame came to the United States at the head of a mission from China. It is still fresh in the recollection of all, with what enthusiasm this mission was received, how its members were entertained and banqueted on their arrival at San Francisco, and how some of the leading men of the State rejoiced at what they believed to be the opening of intercourse between the two 381 countries, which would be immensely beneficial to the United States, and particularly to California. In July, 1868, through this mission, additional articles to the treaty of 1858 were concluded and signed. Of these articles the 5th, 6th, and 7th are as follows: "Aeticle 5. The United States of America and the Eraperor of China cordially recognize the inherent and inalien.able right of raan to change his horae and allegiance, and also the rautual advantage of the free mi gration and emigration of their citizens and subjects, respectively, frora the one country to the other, for purposes of curiosity, of trade, or as per raanent residents. The high contracting parties, therefore, join in repro bating any other than an entirely voluntary eraigration for these purposes. They consequently agree to pass laws making it a penal offence for a citi zen of the United States or Chinese subjects to take Chinese subjects either to the United States or to any other foreign country, or for a Chi nese subject or citizen of the United States to take citizens of the United States to China or to any other foreign country, without their free and voluntary consent respectively. " Article 6. Citizens of the United States, visiting or residing in China, shall enjoy the sarae privileges, immunities, or exeraptions in re spect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation, and reciprocally Chinese subjects, visiting or residing in the United States, shall enjoy the same privileges, iramunities, aud exeraptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the raost favored nation. But nothing herein contained shall be held to confer naturalization upou citizens of the United States in China, nor upou the subjects of China in the United States. " Article 7. Citizens of the United States shall enjoy all the privileges of the public educational institutions under the control of the govern raent of China ; and, reciprocally, Chinese subjects shall enjoy all the priv ileges of'the public educational institutions under the control of the gov ernraent ofthe United States which are enjoyed in the respective countries by the citizens or subjects of the most favored nation. The citizens of the United States may freely establish and maintain schools within the Empire of China, at those places where foreigners are by treaty permitted to reside ; and, reciprocally, Chinese siibjects may enjoy the same priv ileges and iraraunities in the United States." With these treaties — with these strong expressions of friendship and pledges of protection to the people of the two countries — by each to the people of the other coun try the legislation of Cahfornia, and also of the city of San Francisco, has been almost constantly in confiict. 382 On the 25th of April, 1855, the Legislature of the State passed an act entitled "An act to discourage immigration to this State of persons who cannot become citizens thereof," which imposed a tax of fifty dollars upon every person arriving in the State who was incompetent to be corae a citizen. This was directed especially at the Chi nese, as they, with a very few exceptions, were the only persons coming to this country, who, under our laws, could not become naturalized. This act was declared unconsti tutional by the Supreme Court of the State in People vs. Downer (7 Cal., 169). On the 26th of April, 1858, an act was passed entitled "An act to prevent the further immigration of Chinese or Mongolians to this State," which absolutely forbade their landing in CaUfornia, under a penalty of from four hun dred to six hundred dollars, and imprisonment. This, also, was held to be unconstitutional and was never en forced. On the 26th of April, 1862, was passed "An act to pro tect free, white labor against competition with Chinese coolie labor, and discourage the immigration of the Chinese into the State of California," which imposed on each Chi nese, male or female, a monthly capitation tax of two dol lars and a half. This act was declared unconstitutional by the Supreme Court of the State in Lin Sing vs. Wash burn (20 Cab, 534). In the year 1872, the Legislature adopted a series of codes, embracing the whole body of the law of the State. One of these was entitled " The Political Code" of the State, and a chapter, under the title of " General Po lice " of the State, contains provisions relating to immi gration. Some of the sections of the chapter were amended in 1874. They required the master of a ves sel arriving at any port of the State, bringing passen gers from any place out of the State, to make a written report to the Commissioner of Immigration at such port, stating, amongst other things, the name, place of birth. 383 last residence, age, and occupation of all passengers who were not citizens of the United States, and whether any of the passengers, thus reported, " are lunatic, idi otic, deaf, dumb, bhnd, crippled, or infirm and not ac companied by any relative able to support thera, or lewd or abandoned women." One section, as amended in 1874, required " the Commissioner of Immigration ' 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 infirm, and is not accompanied by relatives who are able and willing to support him, or is likely to become 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, oris a convicted criminal, or a lewd or debauched wo man;' and then declare that ' no person who shall belong to either class, or who possesses any of the infirmities or vices specified herein, shall be permitted to land in this State, unless the master, owner, or consignee of said vessel shall give a joint and several hond to the people of the State of California, 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 any 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 fail or refuse to execute the hond 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 then convey said passengers from this State; and if said master, owner, or consignee 384 shall fail or refuse to perform the duty and service la.st 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 6f five hundred dollars, in gold coin of the United States, for each passenger so escaped, to be recovered by suit at law.' " Under the provisions ofthis section the case of Ah Fong, a Chinese woman, came before the Circuit Court on writ of habeas corpus. The case was as follows: The petitioner, a subject of the Emperor of China, arrived at the port of San Fran cisco as a passenger on board the American steamship " -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 Cali fornia, who proceeded, under the provisions of the above statute, to examine into the character of the petitioner and of other alien passengers. LTpori such examina tion the Commissioner found, and ao 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, unless he or the owner or consignee of the vessel gave the bonds required by the statute. Nei 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. They 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, oh 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 confiict with the Con stitution of the United States, and denying, also, that they were either lewd or debauched women. The District 385 Court granted the application and heard the petitioners, and after the hearing, remanded them back to the charge of the master of the steamship, holding that the statute of California was neither in violation of the treaty or the Constitution, and that the evidence presented justified the finding of the Commissioner, that the petitioners were lewd and debauched women. The petitioners thereupon 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 the petition to the District Court, and also alleging that 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 therefore prayed that with the writ of habeas coi'pus a warrant might issue to the Sheriff of the city and count}' of San Francisco to take them into his custody. The Chief Justice granted the writ, returnable 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 farther di rected that the Coroner should return the parties to the master or owner or consignee of the 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 them beyond the State. Its order also provided, that in case the steamship Japan 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 direction of the Court. 386 The petitioner was one of the women thus held by the Coroner, and she invoked the aid of the Circuit Court to be released from her restraint,. alleging, as in the other ap phcations, that the restraint was illegal, that- the statute which is supposed to authorize it was in contravention of the treaty 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 the 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 raaster of the Japan. The case was heard in the Circuit Court by Judge Field, assisted by Judges Sawyer and Hoft'man. 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 carae to such conclusion frora 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 testiraony 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 the time in the employment of Mr. Williara C. Ealston, the cashier of the Bank of Califor nia, at his residence at Belraont. He so stated to the pre siding judge, and oft'ered his affidavit to that eft'ect, with that of his servants. There is no doubt that a State, in the interest of decency aud raorality, raay exclude frora its borders lewd and aban doned women who persist in following prostitution, but in every government which makes any pretence of aft'ordiug security against wanton accusation, some evidence of such 3S7 purpose should be produced more than tho more guess or inference of a Commissioner of Iramigration, from per sonal inspection of the parties whilst walking over the deck of a vessel. The law of California in this case (as will be seen) confounded all distinctions, and opened the door to the greatest oppression and cruelty. In deciding the case, after st.ating the provisions of the section quoted. Judge Field gave the following opinion: " In be 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 beiug au 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, when her rights, guaranteed by the treaty, or the Constitution, or any law of Con gress, are iu any respect 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 iu possession of wealth and all its appliances. If they are not accompanied by relatives, both able and willing to support' thera, they are prohibited from landing withiu 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 heen within that uufortnate class, notwithstanding he may have at the tirae ample means at his com- raiind, he raust obtain the designated hond or be excluded from the State. They subject also to the same condition, aud possible exclusion, the passenger whose sickness or disease has been contracted on the p.as- sage, as well as the passenger who was sick or diseased on his departure frora 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 he- 26 388 come a public charge, he must obtain the bond designated, or be denied a lauding within the State. Nor does the statute make any distinction between the criminal convicted for a raisderaeanor, or a felony, or I'or an oft'ence malum in se, or one political in its character. The conderaned patriot, escaping frora his prison and fleeing to our shores, stands under the law upon the same footing with the comraon felon who is a fugitive frora justice. Nor is there any difference made between the womau, whose lewdness consists in private unlawful indulgence, and the woman who publicly prostitutes her person for hire, or between the woman de bauched by intemperance in food or drink, or debauched by the loss of her chastitj-. " A statute thus sweeping in its terms, confounding by general desig nation persons widely variant in character, is not entitled to any very 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 infirra, who is poor and dependent, when unaccompanied by his relatives, able and willing to support hira, 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 raust be sustained when applied to a woraan 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 whioh indicates that the Legislature intended that any distinction should be made. " It is undoubtedly true that the police power of the 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 Govei-nment, 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 constitutional prohibi tion, their validity cannot be questioned. •' It is equally true that the police power of the State may be exercised by precautionary raeasures against the increase of crirae or pauperism, or the spread of infectious diseases from persons coming from other coun tries ; that the State raay entirely exclude convicts, lepers, and persons afiiicted with incurable disease; may refuge admission to paupers, idiots, and lunatics and others, who from physical causes are likely to become a charge upou the public, until security is aftbrded that they will not be come such a charge; and may isolate the temporarily diseased until the 3,S<) danger of contagion is gone. The legality of precautionary raeasures of this kind h.as never been doubted. The right of the State iu this respect has its foundation, as observed by Mr. Justice Grier in the Passenger Cases, in the sacred law of self-defence, which uo power granted to Con gress can restrain or annul. " But the extent of the power of the State to exclude a foreigner from its territory is limited by the right in which it had its origin, the right of self-defence. Whatever outside of the legitimate exercise of this right affects the intercourse of foreigners with our people, their iramigration to this country and residence therein, is exclusively within the jurisdiction of the General Government, and is not subject to State control or inter ference. To that governraent the treaty-making power is confided ; also the power to regulate coramerce with foreign nations, which includes in tercourse with thera as well as traffic ; also the power to prescribe the conditions of migration or importation of persons, and rules of naturali zation ; whilst the States are ibrbidden 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 whora it may deera dangerous or injurious to the interests and welfare of its citizens, has been asserted by erainent judges of the Su prerae Court of the United States. Mr. Chief Justice Taney raaintained the existence of this right in his dissenting opinion in the Passenger Cases, and asserted that the power h.ad been recognized in previous de cisions of the Court. The language of the opinion in the case of the City of New York vs. Miln (11 Peters, 141) would seera 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 which the Southern States, iu which the institutiou of slavery existed, felt of excluding free negroes from their limits. As in some States negroes were citizens, the right to exclude thera frora the Slave States could only be maintained by the as sertion of a power to exclude all persons whom they raight deera 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 raight, and undoubtedly would, follow from any atteinpt at its exercise. Its maintenance would enable any State to involve the nation in war, however disposed to pe.ace the people at large raight be. " Where the evil apprehended by the State frora 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 iu the more vigorous en- 390 forceraent ofthe laws, not in the 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 raate exercise of the police power of the States to prevent a foreigner who had heen a gambler in his own couutry from landing in ours. If, after landing, he pursues his former occupation, fine hira, 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 raisderaeanor. If the foreigner coming to our shores is a manufacturer or dealer in such liquors, it would be deeraed an illegitimate exercise of the police power to exclude him, on account of his calling, frora 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 raen, 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 reraedy against any subsequent lewd conduct on their part raust be found in good laws, or good municipal regulations and a vigorous police. " Itis evident that if the possible violation of the laws of the State by an emigrant, or the supposed iraraorality 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 he invoked, and at no distant day, when other parties, besides low and despised Chi nese women, are the subjects of its application, and would theu 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 exten,sion of any encouragement to their immigration hither. It is felt that the dissimilarity in physical characteristics, in lauguage, in raanners, religion, and habits, will always prevent any possible assirailation of thera with our people. Admitting that there is ground for this feeling, it does not justify any legislation for their exclusion, which raight not be adopted against the inhabitants of the raost favored nations of the Caucasian race, and of Christain faith. If their further iraraigr.ition 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 arbitrarily, nor accoraplish the sarae eud by attributing to thera a possible violation of its municipal laws. It is certainly desirable that all lewdue.ss, 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 ou our shores, and yet allows the bedizened and painted harlot of other countries to parade our streets and open her hells in broad day, without molestation and without censure, 391 " By the 5th article of the treaty between the United States and China, adopted on the 28th of July, 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 mutual 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 6th article declares that citizens of the United States visiting or residing in China shall enjoy the same privileges, ira 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, aud exemptions iu 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 liraitation which is applied to citizens or subjects of the most favored nation ; and as the General Gov ernment has not seen fit to attach any liraitation 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, extends only to convicts, lepers and persons incurably diseased, and to paupers and persons who, frora physical causes, are likely to becorae 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 auy person (dropping the distinctive designation of citizens) of life, liberty, or property without due process of law ; nor deny to a-ny person the equal protection of the laws. The great fundamental rights of all citizens are thus secured against any State deprivation, and all per sons, whether native or foreign, high or low, are, whilst withiu the juris dictiou of the United States, entitled to the equal protection ofthe laws. Discriminating and partial legislation, favoring particuhar 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 iraplies not only equal accessibility to the Courts for the prevention or re dress of wrongs and the enforceraent of rights, but equal exeraption, 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. 392 ' No tax or charge,' says the act, ' shall be iraposed or enforced by any State upon any person immigrating thereto frora a foreign country which is not equally iraposed or enforced upon every person immigrating to such State from any other foreign country, and any law of any State in conflict with this provision is hereby decl.ared null and void.' — (16 Statutes at Large, 144.) " By the term eharge, as here used, is raeant any onerous condition, it beiug the evident intention of the act to prevent any such condition from being iraposed 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 Araendment. 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 terras 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 considering, imposes this onerous condition upon persons of particular classes on their arrival in the ports of the State by vessel, but leaves all other foreigners of the same classes entering the State in any other way, by land from the British possessions or Mexico, or over the plains by railway, exempt frora any charge. The statute is, therefore, in direct conflict with the act of Con gress. " It follows from the views thus expressed, that the petitioner must be discharged from further restraint of her liberty ; and it is so ordered." The other twenty persons of the twenty-one were also discharged immediately upon the rendition of this decision. Of the twenty-two who had been before the Supreme Conrt of the State, one did not apply to the Circuit Court, but ap pealed from the decision refusing her discharge to the Su preme Court of the United States. Her case came before that Court under the title of Chy Lung vs. Freeman, and was decided at the October Terra in 1875.— (2 Otto, 276.) The judgment of the Supreme Court of the State was unanimously reversed, accompanied with indignant con demnation of the statute oi' California. Said Mr. .Justice Miller, speaking for the Court: " It is hardly possible to conceive a statute more skillfully framed, to place in the hands ofa single man the power to prevent entirely vessgls engaged in a foreign trade, say with China, from'carrying passengers, oi to corapel them to submit to systematic extortion of the grossest kind. 393 "The Coraraissioner has but to go aboard a vessel fllled with passengers ignorant of our language and our laws, and without trial or hearing or evidence, but frora the external appearances of persons with whose former habits he is unfamiliar, to point with his finger to twenty, as in this case, or a hundred if he chooses, and say to the master, these are idiots, these are paupers, these are convicted criminals, And these are lewd women, and these others are debauched women. I have here a hun dred blank forms of bonds, printed. I require you to fill me up and sign each of these for $.500 iu gold, .and that you furnish me two hundred diff'erent men, residents ofthis State, and of sufficient means, as sureties on these bonds. I charge you flve dollars in each case for preparing the bond and swearing your sureties, and I charge you seventy-five cents e