ould
complain, much less could he be permitted to determine in advance,
that any particular locality would fall within the supposed surplus,
and thereby justify its forcible seizure and detention by himself.
"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."[2]

These views have since met with general assent in California and have
been approved by the Supreme Court of the United States.[3] But at
that time they gave great offence to a large class, and the judges
were denounced in unmeasured terms as acting in the interests of
monopolists and land-grabbers. Even now, when the wisdom and justice
of their action are seen and generally recognized, words of censure
for it are occasionally whispered through the Press. Persons sometimes
seem to forget that to keep the plighted faith of the nation, to
preserve from reproach its fair fame, where its honor is engaged, is
one of the highest duties of all men in public life.

The action of the court as to the possession of the public lands of
the United States met with more favor. The position of the people of
California with respect to the public lands was unprecedented. The
discovery of gold brought, as already 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 there had been no legislation by which it could
be acquired. Conflicting possessory claims naturally arose, and the
question was presented as to the law applicable to them. As I have
mentioned in my Narrative of Reminiscences, 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 with the
Constitution and laws of the United States, should govern their decision,
and that 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