thority is delegated to the federal government, or prohibited to the States; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the Constitution of the United States.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 of it-the ownership of the minerals of gold and 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 in 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, and by the same right; by the right of ownership, and not by any right of sovereignty."

"The court also held that, although under the Mexican law the gold and silver found in land did not pass with a grant of the land, a different result followed, under the common law, when a conveyance of land was made by an individual or by the government. By such a conveyance, without a special reservation, everything passed in any way connected with the land, forming a portion of its soil or fixed to its surface.

"The doctrine of the right of the State by virtue of her sovereignty to the mines of gold and silver within her limits perished with this decision. It was never afterwards seriously asserted." *

* The opinions of the court in the cases cited above-that of Biddle-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 one case, and concluded his article in the following language:

"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 resist less majesty of the law, so long as its robes of office are worn by men of learning, uprightness, and unsuspected moral courage, acting within their sphere. Here has been a controversy involving, it is said, millions in value, as well as many considerations of great hardship, exciting not a little local as well as personal feeling and animosity. It has been passed upon by three men, personally without power, the organs and officers of the law, and there the contest ends, for the law has spoken, and we are, after all, a law-abiding people."

PATENTS FOR LAND BY THE UNITED STATES.

Patents for land by the United States, particularly those issued upon a confirmation of grants 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 effect 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 nothing 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 him have never been successfully controverted, and they have been approved by the Supreme Court of the United States.*

MUNICIPAL CORPORATIONS.

Municipal corporations, their powers, rights, and obligations, 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 Municipal Corporations, speaks of these opinions in terms of the highest praise, makes frequent citations from them, and recognizes the fact that the views contained in them have been concurred in very generally by the courts of other States.

In a series of adjudications in what are known in California as the "City Slip 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; Teschemacker vs. Thompson, 18 Id., 20; Leese vs. Clark, Id., 565; Same case a second time before the court in 20 Cal., 411; Estrada vs. Murphy, 19 Id., 268. See also Beard vs. Federy, 3d Wallace, 478.

San Francisco was sold under a void ordinance and the proceeds 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 of the proceeds did not operate to ratify the sales, while at the same time it imposed upon the city the liability 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 property, 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 Dillon says that they" are vindicated with characteristic clearness and striking logical force, in able and interesting opinions of Mr. Chief Justice Field."*

Among other 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 permit 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 ordinance 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:

66 'We are clear that the provision refers only to the acts or contracts of the city, and not 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 Zottman vs. San Francisco, 20 Cal., 96.

priated 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 restore what belongs to others—which rests upon all persons, whether natural or artificial. And it may well be doubted whether it would be competent for the legislature to exempt the city, any more than private individuals, from liability under circumstances of this character. Suppose, for example, that the city should recover judgment against an individual for $100,000, and collect the money upon execution, and upon appeal the judgment should be reversed; would it be pretended that the money could not afterwards be recovered? Could the city defend against the claim for restitution upon the pretence that she was already indebted over $50,000? Could she, to use the language of counsel, owe herself out of 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 an excuse for the detention of the money to which she had no legal or equitable right? Suppose, again, the city should neglect to keep the streets in repair, and an individual should be injured in consequence-should break his leg or be otherwise crippled — could she allege her insolvency against his claim for damages? Would her pecuniary condition be an answer for the neglect of every duty, legal and moral? If this were so, she would be the most irresponsible corporation 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 same obligations to do justice rest upon her as rest upon individuals. She cannot appropriate to her own use the property of others, and screen herself from responsibility upon any pretence of excessive indebtedness. The law casts upon her the legal liability from the moral duty to make restitution. Admitting that the charter restricts her power to incur liabilities 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 mortgages in California was settled in conformity with the common understanding of men. Opinions of the court, written by him, made that the rule of law which was before the rule of equity, namely: that a mortgage is not a

conveyance, but a pledge only, redeemable by compliance with the condition on which it was given. Herman, the author of a recent and most learned work on mortgages, 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 indebted the courts of every State where the doctrine is maintained; and his California opinions are cited as leading and decisive of the 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 claim of the State to five hundred thousand acres of land donated by the 8th 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 officers of the State to do their duty; to the conflicting rights of miners to the use of the water of streams in the mountains for the purpose of mining;—to the right of the wife to a share of the community 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 by the

* McMillan vs. Richards, 9 Cal., 365; Nagle vs. Macy, 9 Id., 426; Johnson vs. Sherman, 15 Id., 287; Goodenow vs. Ewer, 16 Id., 461.