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some smooth surface. It is said by counsel for plaintiffs that by the Spanish law no seal was required to such a grant as this, and that a flourish at the end of the signature, such as appears in this instance, might be used instead. Conceding this to be so, it is still singular that the grant should explicitly state that it was “sealed with the seal of our arms,” and that a blank seal should be attached. The alleged long loss of the papers "artistically described in the testimony,” as was said in a case growing out of a like grant (in U. S. v. Castillero, 2 Black, 185), seemed also to be a suspicious circumstance. In U. S. v. Vallejo, 1 Black, 541, it was held that "a false note of the attesting secretary at the bottom of the grant that it had been registered is a serious objection to the claim under it." A like note appears at the bottom of the grant in this case, though there is no pretense that the grant was ever registered. It would be a mere affectation to pretend that thoughts of this kind, growing out of the well-known history of Spanish claims in Arkansas, have not intruded themselves on the mind of the court. Indeed, they have a certain bearing on the point under consideration, for they afford some very plausible reasons to account for the long delay of the claimants in asserting their rights in the courts; some reason why they twice at an interval of several years importuned congress for special legislation which might seem to be some sort of a recognition of the validity, or at least of the merits, of their claim; reasons why they should have brought a tentative suit in the court of claims for rents on these lands, and why, eventually, after the lapse of so long a time, after the death of all witnesses who knew anything about the matters in dispute, final resort should be had to this court. But, though this view of the case has been pressed in argument, the court does not find it necessary to do more than advert to it for the sole purpose of vindicating the principles of law involved in this controversy, the expression of the collective wisdom and foresight of generations, which renders success in cases of this sort hopeless.

It must also be conceded that the present suit makes no appeal to our sense of justice. As shown by the facts alleged in the complaint, Juan Filhiol never paid anything for the land sued for. He never paid even the trival fee necessary to be paid in order to have his grant registered. He never complied with the terms of the grant, or with the requirements of the laws in force at the time that, as alleged, the lands were donated to him. The taxes that have accrued on the property covered by the grant during so many years, with accrued interest, must amount to a very large sum, of which it is extremely improbable that the plaintiffs have paid anything. In 1788 the hot springs were upon lands occupied and owned by a tribe of Indians, and were far from any European settlement. They were in the midst of an unbroken wilderness, and they could be reached from such places as New Orleans or St. Louis only after many days of arduous travel through a country where there were only rude Indian trails instead of roads. Such a journey would have been attended by perils and by every kind of discomfort. It could only be made by men in robust health and in the full vigor of life. Before the application of steam to navigation, our water courses would have impeded, rather than assisted, the traveler. The country had but few white inhabitants. New Orleans was only a small town, and St. Louis was an obscure village on the extreme margin of the vast and unexplored wilderness stretching from the Mississippi river to the Pacific. Only De Soto, in 1541, and a few later explorers of the white race, had ever seen the springs. Their medicinal qualities, a hundred and six years ago, were unknown; but, having been ascertained after the cession in 1818, the United States government bought up the title of the Indians. In 1832, recognizing the great importance of the springs to the general public, it re served the property from entry and sale forever; and for their use it now holds it in trust, if not in deed, for the heirs of Filbiol. In the meantime, before the commencement of this suit, a thriving and prosperous city had been built up around the springs. The federal government had spent large sums for hospitals and in improving and beautifying its property. By the joint labor and money of private citizens, the municipality, and the federal government, streets had been laid out, parks had been established, churches and schoolhouses had been erected, and railway connections with the rest of the continent had been created. In hotels alone provision had been made for guests and for the traveling public at an expense of millions of dollars. Many of the citizens and others have made these investments largely because they supposed that the springs themselves would be perpetually under the control of the federal government, and would be managed with its usual fairness and generosity. If they should be decreed to be private property, the event would simply be a public and private calamity of incalculable magnitude. They would become an unending monopoly; their control the subject-matter for greed, avarice, selfishness, extortion, and all the whims and caprices of private individuals under no responsibility to the public; owners who might, if they though fit, wholly exclude others from the healing waters, or impose such conditions upon access to them as would be intolerable. The plaintiffs, however, after so long a delay, during which time they have never spent a cent in the great work of making these many enduring and costly improvements, now ask that they may reap where they have not sown. But it has often been held that if one sees another making costly improvements on his lands, believing them to be his own, without any assertion of title, he will be estopped from claiming an adverse title. Erwin v. Lowry, 7 How. 172; Kirk v. Hamilton, 102 U. S. 68; Close v. Glenwood Cemetery, 107 U. S. 466, 2 Sup. Ct. 267; Jowers v. Phelps, 33 Ark. 465. No stronger case than the present, as coming within this principle, is likely to occur.

On the grounds stated, the demurrer to the complaint is sustained, and an order will be entered that, unless the plaintiffs amend within 30 days from this date, this suit shall be dismissed.

KELLY et al. v. STATE OF GEORGIA et al.

. . .

(District Court, s. D. Georgia, W. D. May 30, 1895.)


Sections 753–761 of the Revised Statutes, controlling the writ of habeas corpus considered and applied for the protection of deputy marshals, who necessarily killed, while attempting to arrest, a party indicted for con

spiracy and murder. 2. SAME.

In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, discussed and followed. 8. SAME.

The dissenting opinion of the chief justice and associate justice in that case does not controvert the right to habeas corpus when the act involved is done in pursuance of a law of the United States or an order of a court


When deputy marshals of the United States are attempting to execute a warrant of arrest of parties charged with conspiracy and murder, where the offense is indictable under the laws of the United States, and are met with such violent resistance as compels them to take the life of the party resisting, either in their own self-defense, or for the purpose of executing the warrant, and the deputies, as a consequence, are arrested for murder by the state authorities, the courts of the United States have jurisdiction to Issue the writ of habeas corpus, and, on the return, to summarily hear the evidence, and dispose of the accusation against the officers, as law and

justice may require. & SAME.

This is true, notwithstanding there is no provision of law for trial by jury in the enactments of congress providing for the writ of habeas corpus



Where a party defendant to a bill in equity in the United States court refuses to respect the subpoena, writ of injunction, or attachments issued appropriately by said court, and, when arrested under attachment, violently resists with deadly weapons the arresting officers; is rescued by a mob of his friends; takes the life of an employé of the party in whose favor the injunction issued, while said employé is working on lands in controversy; is indicted for this murder; leaves his home; dwells habitually in the woods and swamps, and with his two sons, all habitually armed with deadly weapons, sends messages of defiance and disrespect to the officers of the law, and that he will kill them if an effort is made to arrest him; and, when finally summoned to surrender by the arresting officer, opens fire with a magazine rifle on the officer making the summons, and a duel ensues, in which several shots are exchanged and the accused is finally killed,--the killing is justifiable, the officer has committed no offense whatever, and is entitled to and will receive the protection of the United States courts against any prosecution brought against him elsewhere for alleged offenses growing out of the performance of his duty in pursuance of the laws of the

United States and the orders of the court. 7. SAME--HABEAS CORPUS-SUPREMACY OF FEDERAL LAWS.

The laws of the United States (sections 753-761, Rev. St., inclusive), providing for the issuance, trial, and disposition of proceedings by habeas cor. pus, are the supreme law of the land. They extend to every foot of its soil, and, under the circumstances described above, are controlling, as expressive of the sovereignty of the United States, in a matter within the bounds of its jurisdiction. A judgment of acquittal by the courts of the United States thereunder will, as to the issues involved, protect the relators from prosecution or molestation elsewhere.

William T. Gary, U. S. Atty., and Marion Erwin, for relators. Thomas Eason, Sol. Gen., and J. W. Preston, for respondents.

SPEER, District Judge (orally). I regret that anything has been said in the argument of this case which tends to take it out of the category of ordinary judicial investigation. It is in that view that the court considers it. It is true that, pending the trial, there has been some bitterness of publication, with regard to the action of the court in granting the writ, and some bitterness of denunciation of the officers, but in the main the cause has been treated fairly by the press, and if it has been treated unfairly in any particular, it will be no more proper to hold fair journalism responsible than it would be to hold the good people of Telfair county responsible for the character and conduct of such a man as the evidence demonstrates Lucius Williams to have been. I am here to obey the law of my country. That commands the issuance of the writ of habeas corpus, when applied for by any person who is in custody "for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or a judge thereof." That is announced in section 753 of the Revised Statutes, and is an epitome of the law upon the subject, from the 24th day of September, 1789, down to a very recent date. When the writ is issued, the duty of the judge is marked out with equal clearness. “The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments and thereupon to dispose of the party as law and justice require.” Section 761, Rev. St.

Now, that is the law; and it is not only law, but it is the paramount law. Not only is it declared to be paramount law by the constitution of the United States, which of course every intelligent mind concedes is controlling upon the action of the court, but it is the law as stated in the initial paragraph of that admirable codification, the Code of Georgia. Section 1 declares: The laws of general operation of this state are "as the supreme law, the constitution of the United States, the laws of the United States in pursuance thereof, and all treaties made under the authority of the United States." In subordination to this supreme law are the laws of the state of Georgia, first as expressed by its constitution, and then as expressed by its statutory enactments not in conflict with its constitution. It appears, then, unquestionably, that I am acting in obedience to law. Well, am I acting in accordance with the formal procedure of the law? There is no doubt about that. The decisions of the supreme court, from an early period in the history of our country, and a multitude of decisions of the circuit and district courts of the United States, have approved and sanctioned the precise proceeding we have before us. These questions have been already passed upon and decided here in a ruling on the plea to the jurisdiction and demurrer interposed in the progress of the case, and therefore it is not necessary to state them more elaborately at this time. I will, however, call the attention of counsel to the fact that the authority of the United States is not restricted, as they supposed, to dockyards, arsenals, and the like, but the sovereignty of this nation extends to every foot of its soil. This has been so repeatedly and so lucidly stated by the courts of highest authority that the informed lawyer can no longer doubt it. In the case of Ex parte Siebold, 100 U. S. 371, Justice Bradley, in rendering the opinion of the court, declares:

“Here, again, we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that government. We hold it to be an incontrovertible principle that the government of the United States, by means of physical force, exercised through its official agents, executes on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws, and to execute its functions in all places, does not derogate from the power of the state to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the constitution itself show which is to yield: "This constitution and all laws which shall be made in pursuance thereof shall be the supreme law of the land.' Without the concurrent sovereignty referred to, the national government would be nothing but an advisory government. Its executive power would be absolutely nullified. Why do we have marshals at all if they cannot physically lay their hands on persons and things in the performance of their proper duties? What functions can they perform if they cannot use force? In executing the processes of the courts, must they call on the nearest constable for protection? Must they rely on him to use the requisite compulsion, and keep the peace, whilst they are soliciting and entreating the parties and bystanders to allow the law to take its course? This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and refining, we shall drive the national government out of the United States, and relegate it to the District of Columbia, or, perhaps, to some foreign soil. We shall bring it back to a condition of greater helplessness than of the old confederation. It must execute its powers, or it is no government. It must execute them on the land as well as on the sea, on things as well as on persons. And, to do this, it must necessarily have power to command obedience, preserve order, and keep the peace, and no person or power in this land has the right to resist or question its authority so long as it keeps within the bounds of its jurisdiction."

That case is expressly approved by the court in the last case upon the subject (In re Neagle, reported in 135 U. S. 1, 10 Sup. Ct. 658), and in summing up the argument in that case, Justice Miller, for the court, said:

"It would seem as if the argument might close here. If the duty of the United States to protect its officers from violence, even to death, in discharge of the duties which its laws impose upon them, be established, and congress has made the habeas corpus one of the means by which this provision is made efficient, and if the facts of this case show that the prisoner was acting both under the law and the direction of his superior officers of the department of justice, we can see no reason why this writ should not be made to serve its purpose for the present case."

Nor is there, as stated by counsel for the state, any dissent from this conclusion, even by those judges who are supposed by some to take a more limited and literal view of the power vested in the United States by the constitution, and to attach more importance to the sovereignty of the states than do other judges who are more disposed to treat the implied powers of the constitution as operative

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