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qualified explorers, occupants and purchasers of mineral lands, corporations formed under the laws of the United States or any state or territory. The legality, or even the policy of such a restriction cannot be questioned, as it is only by comity that aliens are allowed to own real estate in any country. 3 In the early history of mining, on the Pacific coast, aliens were only allowed to work the mines, on condition of their paying a license tax. It was held that the state had power to impose such a license upon foreigners;4 but that when such an one was employed by others, his employers were liable for the tax.5 However, it was held that an alien in possession working a mining claim without license afforded no apology for trespassers, as the state alone could enforce the law and inflict the penalties." It was also held that the Burlingame treaty7 gave no greater privileges to the Chinese, respecting the acquisition of mining claims, than were enjoyed by other aliens.8 But that the mere fact of a Chinaman's residing in a mining district did not subject him to the payment of the license fee.9 The construction given to the first section of the act of July 26, 1866,10 in one case was that it did not prohibit citizens who rightfully acquired the possessory title, from selling and transferring the same to aliens.11 In the same case

it was held that the law forfeiting claims held by aliens, to the territory, was in violation of the organic act, and void. There is no doubt that where a claim has been patented and thus becomes subject to the doctrine of eminent domain, with the powers to exercise it in the state, the right of an alien to own it would depend entirely upon state laws.12 It is also true that the defect in a location, for the reason that the locator was an alien, may be cured by a subsequent declaration of intention, while he is still in possession of the claim.13 So where an alien and a citizen make a joint location, and con

vey by joint deed, before the rights of others intervene, the title will pass.14 And it was held in the case cited, that a location by an alien and transfer to a citizen, before the intervention of others' rights, would pass a good title to the purchaser, notwithstanding that in the general land office it has been decided that the alien could convey no better title than he had, which was nothing.15 It has also been held by high authority, that as between prior locators, who were aliens, and subsequent locators, who were citizens, the latter would prevail, and might enjoin the former from working the mine.16 Following is the substance of provisions in the Revised Statutes, which determine who are and may become citizens by naturalization: Section 2165 provides for a declaration, under oath by the alien, to be made before any circuit or district court of the United States, district or supreme court of the territories, or court of record of any state, with common law jurisdiction, and having a seal and clerk, or before the clerk of any such court, that it is bona fide, his intention to become a citizen of the United States and renounce his allegiance to the prince or government of which he is a citizen or subject. After five years' residence and at least two years subsequent to the declaration, the applicant may perfect his naturalization by swearing to support the constitution and laws, and renouncing his former allegiance, as well as any title of nobility he may previously have held. By Section 2166, aliens who have resided one year in the United States and enlisted in either the volunteer or regular army of the United States, may be naturalized without previous declaration of intention. By Section 2167, alien minors, who have resided during three years of their minority, may be naturalized after completing their five years' residence, without previous declaration. By Section 2168, it is provided that in case

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of the death of the declarant, before perfecting his naturalization, his widow and minor children shall be entitled to citizenship. By Section 2169, the aliens capable of naturalization are mentioned as free white persons, and persons of African birth or descent.17 Section 2170 requires five years' continuous residence in the United States before the final application. By Section 2171 alien enemies are excluded. Section 2172 declares the minor children of naturalized aliens, citizens without the formality of naturalization, and also makes provision saving the citizenship of children born abroad, of native and naturalized citizens.18 Section 2173 excludes the police court of the District of Columbia from the courts authorized to nat uralize aliens. Section 2174 provides that three years' service as an American seaman on a merchant vessel will entitle a foreigner to citizenship. The question arises, whether the terms of this title may be rendered applicable to unmarried women who immigrate to this country after having attained their legal majority. It is believed that in a proper case the courts would find a way to extend the provisions of the mining law to such persons, as they have done, to give them the benefits of a similar statute donating public lands, by construing the words "single man" in their generic sense, to include unmarried women.19

1 Rev. Stat. U. S. §§ 2319, 2321; ante, p. 13, 14.

2 An act granting the right of way to ditch and canal owners over the public lands, and for other purposes. Approved July 26, 1866. § 1. "That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict

with the laws of the United States."

3 Brick vs. Caster, 4 Watts & S. 494; Runyan vs. Caster, 14 Pet. 122.

4 People vs. Nagler, 1 Cal. 232.

5 Meyer vs. Larkin, 3 Cal. 403.
6 Mitchell vs. Hagood, 6 Cal. 148.
7 16 U. S. Stat. at Large, 739.
8 Territory vs. Lee, 2 Mont. 124.
9 Ex parte Ah Pang, 19 Cal. 106.
10 Supra.

11 Territory vs. Lee, 2 Mont. 124.

12 2 Landowner, 115.

13 Osterman vs. Baldwin, 6 Wall. 122.

14 North Noonday Co. vs. Orient Co., 9 Reporter, 601.

15 3 Landowner, 18; North Noonday M. Co. vs. Orient M. Co., 9 Reporter, 601; SAWYER, J., in U. S. Cir. Ct., Dist. Cal.

16 Chapman vs. Toy Long, 4 Sawyer, 28. A corporation is a citizen, North Noonday M. Co. vs. Orient M. Co., supra.

17 It is under the restrictions of this clause that Chinamen are refused naturalization, being neither "white" nor African by nativity or descent.

18 Whether the party has complied with the requirements of this statute, or whether his father was naturalized, is a question of fact for the jury. North, &c. Co. vs. Orient M. Co. U. S. Cir, Ct. Dist. Cal., 9 Reporter, 601.

19 Silver vs. Ladd, 7 Wall. 219.

§ 21. Discovery.-This is the first act that goes to the acquisition of any right or title to a lode claim under the provisions of the United States law. According to the letter of the statute, the first in time as well as first in importance; 1 though it has been held that discovery subsequent to location would operate by relation to legalize acts which should have been done subsequent to discovery.2 Prior to discovery of mineral, however, the only right that the miner can obtain is a possessory one, the value and conditions of which are treated in the preceding section. Until mineral is discovered, the prospector may hold possession of a piece of ground under the miners' common law,3 but not under the laws of Congress. There being no legislative provision for the determination of the miners' possessory rights prior to discov


ery, they would come under the rules and customs of miners. The only qualification required for a discoverer is that he shall be a citizen of the United States or shall have declared his intentions to become such.4

1 Rev. Stat. U. S. § 2320, ante p. 14.

2 North Noonday M. Co. vs. Orient M. Co. (U. S. Cir. Ct. Dist. Cal.) 9 Reporter, 601; Zollers vs. Evans, 1 Col. Law Rep. 217. But to perfect the location as originally made the subsequent discovery of mineral must be in the discovery shaft. Vanzandt vs. Argentine M. Co., 1 Col. Law Rep. 524.

3 Ibid.

4 Rev. Stat. U. S. § 2319, ante, p. 13; supra, § 20.

§ 22. What must be discovered.—It is not sufficient to constitute such a discovery as will warrant the location of a lode claim, that mineral is found. The mineral must be discovered in a vein or lode.1 What is meant by the term “lode" we have already seen. By "in place," which is always a necessary condition of the mineral in a lode claim, is meant, with reference to the rock in which the mineral is found, or the mineral itself, or both, that they are, when discovered, in the same place or position in which they were originally formed or deposited, as distinguished from loose, broken rock, or "float;" and from the mineral which by decomposition of the rocks, has been released, and is found in the wash, or loose earth and sand. So far as the discovery is concerned, it is immaterial whether the rock contains a large or small percentage of mineral, or whether it contain gold, silver, cinnabar, lead, tin, and copper, or only one of the enumerated metals or other valuable deposits" in appreciable quantities. It has been said that one wall must be discovered. That "before such discovery can be called a discovery, at least one well-defined wall or side of the lode must be found."5

1 Rev. Stat. U. S. § 2320, ante, p. 14; Overman S. M. Co. vs. Corcoran, 15 Nev. 147.

2 Ante, § 15.

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