his proclamation, requiring all collectors of licenses to foreign miners to stop the issuing of such licenses." There are many grants of power to congress under forms of expression like the clause respecting the regulation of the public lands, which have been held not to confer upon the national government exclusive authority of legislation. Thus, congress is empowered to provide for organizing, arming, and disciplining the militia; yet, in the absence of congressional legislation upon the subject, the state may exercise the same authority: Houston v. Moore, 5 Wheat. 1, 49. Congress has exclusive power to regulate commerce; and yet, in Wilson v. The Black Bird Creek Marsh Company, 2 Pet. 245, an act of a state legislature affecting commerce was held valid. In this case the chief justice observes: "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 control state legislation, over those small navigable creeks into which the tide flows," etc., "we should feel much difficulty in saying that a state law coming in conflict with such act would be valid. But congress had passed no such act." Congress has power to establish uniform bankrupt laws; and yet, in Sturges v. Crowninshield, 4 Wheat. 122, 192, it was held that a state had authority to pass a bankrupt law, provided such law did not impair the obligation of contracts, and provided there was no act of congress in force to establish a uniform system of bankruptcy conflicting with such law. Congress has power to provide for the punishment of conterfeiting the current coin of the United States; but, in Fox v. State of Ohio, 5 How. 410, it was held that this provision did not prevent a state from passing a law to punish the offense of circulating counterfeit coin. Why, then, has not this state the power, in the absence of congressional legislation, to pass a law which has no greater influence in regulating the public lands within the state, than the statute under consideration?

There can scarcely be a doubt that a state law imposing a tax upon the personal property of miners, such as their tools, machinery, provisions, and the gold extracted from the earth, would not amount to a usurpation, on the part of the state, of the constitutional power of congress to make rules and regulations respecting the public lands, and it is difficult to see how such a law would be less exposed to constitutional objections than a statute imposing a poll tax.

The persons upon whom the statute of this state was intended to operate, do not come within the description of persons who

were held to be exempt from state taxation in Norris v. City of Boston, and Smith v. Turner [Passenger Cases], 7 How. 283. They are not on shipboard in our harbors, nor transiently passing through our territory. They are confessedly within the territorial jurisdiction of the state, and residents, or at least sojourners, upon our soil; and being such, can claim no exemption under the principle of those cases.

If, then, this statute is to be regarded as a tax law, we are of the opinion that it conflicts with no clause in the constitution of the United States. Persons, whether citizens or foreigners, occupying mineral lands within the state, though such lands form a portion of the public domain, are, in respect of taxation, whether for the support of the state government, or for police or municipal purposes, subject to the legislative jurisdiction of the state. The power existing as to all, there is no prohibition in the constitution of the United States against exercising it over a part only, save that section which declares that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. But that section does not affect the present case, as the act demands nothing from any citizen of the United States.

It being established, then, that the state may impose a tax upon the persons of foreigners alone, we think that the power may be exercised in the manner prescribed by this statute. In other words, if a tax law be constitutional, a license law must be equally so.

We have thus far directed our attention to the constitutionality of the statute, as tested by the specific grants and prohibitions of power contained in the constitution of the United States, and have spoken of the law as one imposing a direct poll-tax upon foreigners. But we are of the opinion, that it should rather be viewed in the light of an act prescribing certain conditions, upon compliance with which, foreigners are to be permitted to reside in a given locality, and pursue a particular branch of business. It is, in truth, what it purports to be, a license law. It was decided in Holmes v. Jennison, 14 Pet. 540, in Grove v. Slaughter, 15 Id. 449, and in Prigg v. The Commonwealth of Pennsylvania, 16 Id. 625, that the people of the several states of the Union had reserved to themselves the power expelling from their borders any person, or class of persons, whom they might deem dangerous to the peace, or likely to produce a physical or moral evil; and although the position assumed in those cases, that a law of congress authorizing the in

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troduction of any person or description of persons against the consent of the state would be a usurpation of power, seems to have been overruled in Norris v. The City of Boston, and Smith v. Turner [Passenger Cases], 7 How. 283, yet these latter cases do not, as has already been observed, affect the act of the legislature now under consideration. The ground taken by Mr. Justice Woodbury in the cases last cited is, that every sovereign state possesses the power to prescribe the conditions on which aliens may enjoy a residence within and the protection of the state. This position is based upon the practice of nations, and of the respective states as well before as since the formation of the constitution, upon the authority of writers on international law, and the decisions of the supreme court of the United States, and is supported by a force and cogency of reasoning which render it impregnable. And although he was in the minority in the decision of the court upon the peculiar facts of those cases, that circumstance, in no wise, impairs the force of his argument when applied to the statute the validity of which is contested in this case. If, therefore, a state may prescribe the conditions upon which aliens may enjoy a residence within it, it may also declare the terms upon which they shall be permitted to make their residence in any given portion of its territory, and exercise a particular employment. This is the very thing which the law in question purports to do. It requires foreigners to pay a fee for permission to enjoy the protection of the state government in the mineral region, and in the pursuit of the lucrative business of mining. Viewed in this light, it may be regarded as a police regulation, and therefore valid within the principles laid down in Milne v. New York, 11 Pet. 132, and fortified by the views of the court in Thurlow v. Commonwealth [License Cases], 5 How. 504, and in Smith v. Turner [Passenger Cases], 7 Id. 283.

Nor do we see any great force in the objection, that the law is a license to foreigners to trespass on the public lands. We do not regard it as such. The state takes the case precisely as it finds it. It sees numerous foreigners actually engaged in mining. It looks to the fact that the general government permits them to trespass on the public lands without complaint, or any effort to prevent them from so doing, and it requires from them the payment of a fee, while so engaged, and until congress shall assume some control over the matter itself. Instead of the law being a license to foreigners to trespass on the public lands, it is rather a restriction on the commission of such trespasses. Besides, the state is not the steward nor bailiff of

the general government, having in charge the protection or security of the public property.

But it is contended that the act of the legislature is in violation of treaties of the United States with foreign powers. A sufficient answer to this general objection is, that the complaint does not set forth the nationality of any person upon whom the respondent is alleged to have exercised the functions of his office. It charges that he "has exacted the sum of twenty dollars each from sundry foreigners in the county of San Francisco for licenses to mine"-without particularizing whether such foreigners were citizens of a nation with which the United States have any treaty relations. It does not state whether they were Mexicans, Chilenos, Englishmen, Frenchmen, Sandwich Islanders, or Chinese; and the court can not, upon this demurrer, determine whether any treaty has been violated by the respondent. This difficulty alone would, upon this branch of the plaintiff's argument, be a serious objection to his case; but inasmuch as it may be more satisfactory to have the whole matter, so far as this court is concerned, disposed of in all points upon the merits, rather than upon inadvertences which might be supplied or corrected in a subsequent litigation, we shall proceed to examine this position of the plaintiff's counsel. He insists that the act is invalid, because it is opposed generally to treaties of the United States with foreign powers, and particularly to the treaty of Queretaro.

First, as to treaties generally. Perhaps the most satisfactory mode of testing the validity of the law, under this point, will be to take the treaty with that power to whose subjects as extensive privileges are granted by our country as to those of any other nation. We will, therefore, consider the case as if it involved our treaty relations with Great Britain, and under the supposition that a subject of the queen of Great Britain was the person from whom the sum of twenty dollars had been exacted. By the fourteenth article of the treaty of 1794 (known as Jay's treaty), which was substantially renewed by article 1 of the treaty of 1815, the subjects of the king of Great Britain, coming from his majesty's territories in Europe, had granted to them liberty freely and securely, and without hinderance or molestation, to come with their ships and cargoes to the lands, countries, cities, ports, places, and rivers within our territories, and enter the same, to resort there, to remain and reside there, without limita tion of time; and reciprocal liberty was granted to the people of the United States in his majesty's European territories; but

subject always, as respects this article, to the laws and statutes of the two countries respectively. By this treaty our inhabitants, whilst in the British dominions, were to abide the laws of Great Britain; and the subjects and inhabitants of that country, when in our territories, were to abide by the laws of the United States and by the laws of the respective states where they might be. The only question, then, under this treaty, is, whether the act of the legislature falls within the scope of the powers of a Sovereign nation, and, at the same time, is not included in the category of powers granted by the states to the general government; for, if it falls within the former and is excluded from the latter, then it is one of the laws which the treaty itself makes obligatory upon British subjects. But we have seen that the power of taxation and the power of prescribing the conditions upon which aliens shall be permitted to reside in a state, are attributes of a sovereign nation, which have not, except in certain specified cases, of which the present is not one, been given up to the federal government. Our statute, then, is one of the laws or statutes to which the treaty, by its own terms, provides that the subjects of Great Britain shall be subject. Chief Justice Taney, in speaking of this treaty, in Norris v. The City of Boston, and Smith v. Turner [Passenger Cases], 7 How. 472, uses the following language: "The permission there mutually given to reside and hire houses and warehouses, and to trade and traffic, is in express terms made subject to the laws of the two countries respectively. Now the privileges here given within the several states are all regulated by state laws, and the reference to the laws of this country necessarily applies to them, and subjects the foreigner to their decision and control." The act, then, is not repugnant to that treaty.

But even if the provisions of the statute did clash with the stipulations of that or of any other treaty, the conclusion is not deducible that the treaty must therefore stand, and the state law give way. The question in such case would not be solely, What is provided for by the treaty? but whether the state retained the power to enact the contested law, or had given up that power to the general government. If the state retains the power, then the president and senate can not take it away by a treaty. A treaty is supreme only when it is made in pursuance of that authority which has been conferred upon the treatymaking department, and in relation to those subjects the juris diction over which has been exclusively intrusted to congress. When it transcends these limits, like an act of congress which