self. "If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."*

These views have since met with general assent in California and have been approved by the Supreme Court of the United States.† But at that time they gave offence to a large class, and the judges were accused of acting in the interest of monopolists and land-grabbers, when in fact they were only extending to the grantees the protection which our treaty with Mexico stipulated.

2d. As to the occupation by settlers of lands of the United States in advance of measures by the government for their sale.

"The position of a large portion of the people of California, previous to 1860, with respect to the public lands, was unprecedented. The discovery of gold had brought, as stated, an immense immigration to the country. The slopes of the Sierra Nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes. 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 afterwards the public surveys were extended over only a portion of them. Conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them. The Legislature in 1851 had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict

* Cornwall vs. Culver, 16 Cal., 429, and Mahoney vs. Van Winkle, 21 Id., 576-580.

Van Reynegan vs. Bolton, 95 U. S., 33.

with the constitution and laws of the state, should govern their decision, and the principle thus approved was soon applied in actions for mining claims in all courts. In those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled to protection. This principle received the entire concurrence of the 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 ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sufficient 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 landed interests of the country, been to a certain extent qualified and limited. The larger portion of the mining lands within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. Actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount 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 proprietor, 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 considered 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 occupants 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 own 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 opinion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in public or private lands, belonged to the State by virtue of her sovereignty. To this opinion a decision of the Supreme Court of the State, made 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 Northumberland, 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 of the court. The Supreme 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 hypothesis that the United States have no municipal sovereignty within the limits of the State, that they must belong in this country to the State. The State, therefore, said the court, "has solely the right to authorize them " (the mines of gold and silver) "to be worked; to pass laws for their regulation; to license miners; and to affix such terms 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 conflicting 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 development of the mines, and no greater latitude in exploration 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 proprietors against this invasion of their possessions. There was gold in limited quantities scattered through large and valuable districts, where the land was held in private proprietorship, 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, gardens, or otherwise. It was evident that under such a state of things the owner of mineral land would never be secure in his possessions. His title would be of little value if there was a right of invasion in the whole world. In fact, the land would be to him poor and valueless just in proportion to the actual richness and abundance of its products.

"The Court was, therefore, compelled to put some limitation upon the enjoyment by the citizen of this asserted right of the State. Accordingly, within two years afterwards, it held that although the State was the owner of the gold and silver found in the lands of private individuals as well as in the public lands, "yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to."—(Stoakes vs. Barrett, 5 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 adventurers who filled the mining regions. And when Judge

Field went on the bench, in 1857, the right to dig for the precious metals on the lands of private individuals, under an assumed license of the State, was still asserted." But afterwards, 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 opinion of the Court, which attracted much attention. The fallaciousness of the reasoning upon which the doctrine rested was so clearly shown, that the doctrine has never been reasserted since.

"At a later day the court took up the doctrine, that the precious metals belonged to the State by virtue of her sovereignty, and exploded it. The question arose in Moore vs. Smaw, and Fremont vs. Flower, which were heard together. In disposing of it, Judge Field, speaking 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 in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than that of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent State or Nation. Whatever 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 essential 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 government is delegated the exercise of certain rights or powers of sovereignty ; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective States, or vested by them in their local governments. When we say, therefore, that a State of the Union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such au

* 14 Cal. Rep., 373–380. .

†17 Cal. Rep., 200.