dissenting. I cannot agree with tbe majority of tbe court in this ease, for tbe following reasons:
When a citizen of tbe United States locates any portion of tbe public domain, containing precious metals, in accordance with tbe local rules and regulations of miners, tbe government of tbe United States becomes divested of an easement in that particular *145portion, of tbe public domafi^ffiad such locator becomes the owner thereof. To the extenfibrthis easement, that parcel of mining ground ceases tohe^ublic domain. "The government has parted ■with the titbrto this extent, and a citizen has acquired it. This court ha/neld this view in the case of Robertson v. Smith, 1 Mon. 410.
To the extent of this easement, I do not see that any portion of mining land, so acquired, is any more public domain than a section of agricultural land for which the general government has given a patent to a pre-emptor. It is true, all the title, except this easement, is in the general government, and to that extent and no more it is public domain. In the opinions of my brother judges, they, in effect, say, that the paramount title to mineral ground, although the same may be properly located, is still in the general government. When a person has parted with a title to land, how can he be said to have the paramount title still to it %
This court, in the case above referred to, held, that when mining ground was properly located, the government parted with the title to an easement in the same. How then can it be maintained that the government still has the paramount title to this ground so far as this easement is concerned ?
There appears to havesbeen an impression, on the part of'my brother justices that, should the Territory forfeit and sell this easement, the purchaser would acquire a greater interest in the land than the first locator of the mine. This is not so, however. He would take only a mining easement, and he would take this subject to the conditions, the mining rules and regulations attached to the estate, namely, the conditions of forfeiture should he fail to comply with them. Again, it is claimed that this law under consideration interferes with the primary disposal of the soil. What is understood by the phrase “primary .disposal of the soil % ” The disposal of it by the general government, nothing more. But when mines are duly located, the government has disposed of the ground containing them to the extent of an easement. All the law under consideration proposes to do is to forfeit this easement. How then can this law interfere with the primary disposal of the soil, .when to the extent this law affects the *146soil tbe government bas already disposed of it % Tbe chief justice, in bis opinion, bolds tbat a forfeiture of land conveyed to an aben can only be made to tbe sovereign power in tbe State. And be claims tbat tbe Territory of Montana bas no sovereignty, but tbat all tbe sovereign power witbin its borders is vested in tbe general government of tbe United States, and bence tbat tbis government is tbe only one tbat can claim forfeiture of real estate sold to an alien. I know tbat there bas been a good deal of talk about a Territory not being sovereign, but tbis is tbe only legal opinion of which I have any knowledge tbat so decides. All of tbe decisions in relation to organized Territories speak of them as governments. Our Organic Act calls tbis a temporary government. Let us see what tbis government is. It bas an executive department, a judicial department and a legislative department. What powers are vested in each ?
Tbe executive power is vested in a governor. It is provided tbat be shall be tbe commander-in-chief of tbe militia of tbe Territory ; be may grant pardons and respites against tbe laws of tbe Territory; be shall commission all tbe officers of tbe Territory who shall be ajppo'mted to. office under tbe laws thereof; be shall take care tbat tbe laws be faithfully executed, and possesses tbe veto power. Are these not attributes' of sovereignty ?
Tbe legislative authority is vested in a governor and a legislative assembly. Tbe legislative power extends to all rightful subjects of legislation consistent with tbe constitution and laws of tbe United States, and tbe provisions of our Organic Act. It bas, under such a grant, power to provide for 'the levying and collection of taxes; to pass.laws for tbe punishment of all crimes and misdemeanors; to regulate domestic relations; to regulate tbe conveying and tenure of property; to regulate and give tbe power of transmitting by devise and wills, and the distribution of estates among heirs. It bas tbe power to organize tbe militia of tbe Territory, and to provide for calling tbe same to suppress insurrection against tbe laws of tbe Territory, to repel tbe invasion of hostile Indians into tbe settled portions of tbe Territory, and even to repel tbe invasion of a foreign power invading its limits. Other powers might be enumerated. I do not think any State legislative authority in tbe Union bas a more extensive grant of *147legislative powers. One further point may be noticed that will show more fully the extent of the power of our legislative department, and the character of our Territorial government, namely, the legislative authority may grant a charter to a municipal corporation. This right has never been doubted. The city in which this court is now sitting has a charter of incorporation granted by the legislative department of the Territory. If the government of this Territory was but a municipal corporation, similar to that of a city government organized by a State legislature, could it possess such powers ? Can a municipal corporation create a municipal corporation? The legal decisions of the past may be searched in vain for authority to sustain the exercise of such powers by a municipal corporation. It may be that since the amendment to our Organic Act, the power to charter corporar tions has been somewhat limited. If the legislative authority of the Territory did formerly possess the power to charter corpora tions to as unlimited an extent as a State, what was the necessity of that amendment ?
The judicial power of the Territory is vested in a supreme court, district courts, probate courts and justices of the peace. The jurisdiction of these courts is as limited by law; that is, by the laws of our legislative authority. It is also provided that the said supreme court and district courts shall possess chancery as well as common-law jurisdiction. What more extensive judicial powers are vested in any State government in the Union? We have a government then, I hold, with an executive, who possesses, in almost every essential particular, the same powers as the governors of the several States in the Union. We have a legislative assembly that enacts laws, not by-laws, and whose legislative power is not surpassed by the legislative authority of any State government. We have a judicial power, as extensive as any State, vested in courts, whose authority to enforce their judgments and orders.is full and complete, and whose judgments would undoubtedly have the same force and effect in a foreign nation as those of any State in the Union, and would have the same force in any State as the judgments of another State, were it not for the provisions of the national constitution. Yet it is held that, because all these powers are granted to our government. *148by an act of congress, it does not possess sovereignty. What does invest a government with sovereignty but the possessing and exercising of sovereign powers. Does it make any difference from whence sovereign powers are derived, whether from God, as claimed by kings, or from the people, as claimed by republics, or from a government possessed with the sovereignty over a country, as the United States has over the Territories ? The United States government has only such sovereign powers as the people have granted or delegated to it. It does not claim to have received any power from a Divine source. Is it not sovereign? But it may be said that these powers are granted or delegated in perpetuity. Not so; there is a right reserved to amend our national constitution, and by virtue of this right, any sovereign power it now possesses may be taken from it. But suppose these sovereign powers are granted to the national government in perpetuity, and the sovereign powers bestowed upon a Territory are given temporarily. Can it be a safe rule to follow, in determining whether or not a government is sovereign, the ascertainment of whether the powers it possesses were given it in perpetuity or temporarily. There is no reason in such a rule.
If any government in the limits of the United States can be said to possess sovereignty, it must be because it has and exercises sovereign powers. It is said that the general government may divide our Territory or attach it to a State or another Territory. The general government reserved this right in our Organic Act. If a reservation in an Organic Act prevents a government from being sovereign, then the United States government is not sovereign, because there are reservations and limitations in our national constitution. And it might be pertinent to inquire, why was it thought necessary to put these reservations in our Organic Act ? I cannot see how a reservation in an Organic Act prevents the sovereign attributes possessed by the government it organizes from being attributes of sovereignty, and that government, to the extent of these sovereign powers, from being sovereign, unless it takes something more than the rightful possession of sovereign powers to make a government sovereign. Again, it is said the general government might sell our Territory. This power may be doubted. But admit that it can sell its power of eminent *149domain, can it sell tbe government called the temporary government of Montana Territory ? That is what I claim possesses sovereignty. Can it sell the sovereign powers it has granted to this government ? Can it farm out its executive, legislative, or judicial departments? If so, it is fortunate, perhaps, for our people that public virtue is so pure and exalted. I think my brothers, finding that our Territorial government is lacking in some of the attributes or prerogatives generally found possessed by sovereign powers, have shut their eyes to the sovereign powers it does possess and found no sovereign powers reposed in it. But such a rule would find that, because the Queen of England did not possess as many sovereign powers as King William of Prussia, or the Czar of Bussia, therefore she has no sovereign powers. The Territory of Montana having sovereign powers, I hold that, to the extent of these, she is sovereign; that in determining whether or not a government in the United States is sovereign, we should not look to the source of its ■ powers or to their extent or duration, but to their possession. The right of congress to grant to Territorial governments the powers they possess has been acquiesced in by all the national courts. And they seem to have based this right upon the proposition that the United States is vested with sovereignty, as far as the Territories are concerned, just as, primarily, all sovereignty was vested in the people of the United States, and that as the people could grant the sovereignty they possessed to the National and State governments, so could the United States grant its sovereignty save as to national matters to the Territorial governments. Whether or not this theory was based upon sound judicial principles in the start, it is not pertinent now to inquire. The general government has acted upon this theory so long that it is undoubtedly now the law.
Mr. Justice Story, in his work on the Constitution, says: “ Having a right to erect a Territorial government, they may confer on it such powers, legislative, judicial and executive, as they may deem best. They may confer upon it general legislative powers, subject only to the laws and constitution of the United States.”
Again, in speaking of the courts created for- a Territory, he *150says: “ They are legislative courts, created in virtue of tbe general right of sovereignty in the government, or m virtue of that clause which enables congress to make all needful rules and regulations respecting the Territory of the United States.” 2 Story on Const., § 1325.
Judge Kent, in Ms Commentaries, says: “ "With respect to the vast Territories belonging to the United States, congress have assumed to exercise over them supreme powers of sovereignty.” 1 Kent’s Com. 384.
In the noted case of Dred Scott v. Sandford, all of the judges agreed that, from some source, congress had the power to form GOVERNMENTS in the United States Territory. The only dispute between the cMef justice and myself upon this point is, as I understand it, as follows: He holds that congress or the United States has sovereign power over a Territory, and that this sovereignty it has not or cannot delegate or grant to a Territorial government; while I hold that all the sovereign powers a Territorial government possesses were primarily reposed in the general government, and that these it has granted to it. If it is claimed that the- delegating or granting of sovereign powers to a government does not make it a sovereign power, then I answer that the government of the United States and the governments of the several States have no sovereignty, because it is an accepted theory of our government that the people are sovereign, and have granted or delegated to our governments some of their sovereign powers.
Our Territorial governments have powers similar to those which the English colonies in America that had charters, possessed. Mr. Justice BlaoKstone describes them as “ in the nature of civil corporations, with the power of making by-laws for their own internal regulations, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. They have a governor, named by the king (or, in some proprietary colonies, by the proprietor), who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their house of commons, together with their council *151of state, being their upper house, with the concurrence of the king, or his representative, the governor, make laws suited to their own emergencies.” 1 Black. Com. 108.
Mr. Justice Story, in his Commentaries on the Constitution, says of this description, in § 161: “ This is by no means a just or accurate description of the charter governments. They could not properly be considered as mere civil corporations of the realm, empowered to pass by-laws, but rather as great political establishments or colonies, possessing the general powers of government, and rights of sovereignty, dependent, indeed, and subject to the realm of England; but still possessing within their own Territorial limits the general powers of legislation and taxation.” '
Again, speaking of the charters given to Massachusetts, he says: “ But the charter of "William and Mary, in 1691, was obviously upon a broader foundation, and was, in the strictest sense, a charter for general political government, a constitution for a State, with sovereign powers <md prerogatives a/nd not for amere 'tmmicipality.”
He proceeds then to state what the powers given under this charter were, and they are certainly not greater than those possessed by our Territorial government. In pursuing the subject of the governments organized for the chartered American colonies, it will be found, I am sure, that in the main our Organic Act was borrowed from the provisions of the charters of the New England colonies. They are too similar to leave any other conclusion than that the provisions of the former were suggested by the provisions of the latter; and it should be remembered that these chartered governments were organized by an authority that claimed, and who, it was acknowledged, possessed as unlimited a sovereignty over the colonial dominions, as the United States can be said to possess over the Territories of the United States.
Judge DilloN, in his work on Municipal Corporations, speaks of the free cities of Italy and the hanse towns of Germany, which arose during the “ middle ages,” and classes them as States, and treats of them as something more than civil corporations having power only to pass ordinances or by-laws. In Hallam’s “ Middle Ages,” it is said of these hanse towns : “ They were tacitly ac*152knowledged to be equally sovereign with tbe electors and princes.” Tet the governmental authority possessed by these towns was derived from the rulers, who possessed sovereignty over the country in which they were located. These cities certainly exercised sovereign rights and were treated as capable of entering into treaties and leagues.
The American colonists thought themselves capable of entering into leagues and compacts. Whatever may be said of the power of the general government over the Territories, its right to divide them, to sell them, or to repeal their Organic Acts, may also be said of the power the king of England claimed to exercise and often did exercise over the chartered American colonies, and of the power of the sovereigns in whose realm were located the hanse towns of Europe. Tet it will be found that it has always been claimed that to a certain extent those colonies and those towns were sovereign.
Holding then, as I do, that the Territory of Montana is a government possessing many sovereign powers, or in other words, possesses sovereignty, I come to the question, whether its legislative authority has the power to provide for the forfeiture of land held by aliens to the Territorial government. It is conceded that our legislative power, having adopted the common law, so far as applicable, an alien cannot hold the title to real estate in this Territory; in other words, that that portion of the common law that provides that an alien cannot hold the title to land in a country of which he is not a citizen is applicable. And it may be remarked that there is no law of the United' States to this effect, that I am aware of, and that it is only by virtue of this adoption of the common law in this Territory that this disability is imposed outside of the statute under consideration. It follows then that our legislative power can impose this disability. If it can do it in a round-about way, namely, by the adoption of the common law, it can do it directly. What was the object of creating this disability at common law ?
Blackstone (1 Com. 372) lays down the rule and reason for it: “ An alien born may purchase lands, or other estates ; but not for his own use, for the king is thereupon entitled to them. If an alien could acquire a permanent property in lands, he must owe *153an allegiance, equally permanent with tbat property, to tbe king of England, which' would, probably, be inconsistent with that which he owes to his own natural liege lord; besides that, thereby the nation might, in time, be subject to foreign influence, and feel many other inconveniences.” Chitty, in his note to this passage, says: “ A political reason may be given for this, which, I think, stronger than any here adduced. If aliens were admitted to purchase and hold lands in this country, it might, at any time, be in • the power of a foreign state to raise a powerful party amongst us; for power is ever the concomitant of property.” And he proceeds to show how Russia resorted to this very means of acquiring large estates in Poland in furtherance of its covert design, which subsequently became manifested, of conquering and dismembering that now unhappy country. • As I hold that our Territory has the power to suppress insurrection against its laws, to provide for calling out the militia therein, to repel the incursions of hostile Indians into our settlements, or to repel the invasion of any hostile foe who should come within our Territorial limits, I am confident that it does possess the much less power of enacting laws so that no foreign power would be able to raise up a party within our borders hostile to the authority of our government.' It may be said that it is no part of the powers vested in a Territory to protect itself against a foreign enemy, and that this power is vested, by the constitution, in the general government. It has just as much power upon this point as any State in the Union has; and can it be maintained that a State cannot raise troops and marshal them against a foreign foe as well as a domestic one that would seek to conquer and suhdue it? To assert that any government cannot do this is to deny the right of self-protection. The States in this Union have ever claimed the right to forfeit the title to real estate purchased by aliens within their borders, and the general government never has exercised that right. The truth is, it makes but little difference npon what grounds the right is based, for the fact is that all governments have claimed this right. It is considered a concomitant of government- ; *a necessary power. Again, the forming of Territorial governments had, for one of its objects, the building up of a body politic that would eventually be competent to be admitted into *154tbe TJnion as a State. • Now if, in carrying out this object, it is found that a foreign and alien population that tbe laws of tbe national government will not allow to become citizens, or an aben population, wbo, from disinclination, or hostility to our institutions and government, refuses to become citizens, were acquiring such permanent interests in tbe Territory that they would binder the settlement of desirable citizens of tbe United States, and prevent tbe organization of such a political community as would binder us from becoming a State in tbe American Union, it certainly ought to be a rightful subject of legislation, tbe prevention of this acquisition of such property.
I have treated this subject thus far as though tbe property vested in an alien must be forfeited to a sovereign power. True, in England, tbe estate was forfeited on “ office found ” to tbe king, in whom is vested tbe sovereignty. In this country we have no king, and our governments to some extent take tbe place of kings. It was a provision of tbe common law that made tbe forfeiture of such estates to tbe king. We claim tbe right to change tbe common law on most every other subject. Why not upon this ? Our legislative authority upon all subjects applicable to our condition, adopts and changes and repeals tbe common law. This is generaby admitted to be within its powers. It ought to have tbe right to repeal tbe common law that made tbe estate vested in an aben subject to forfeiture to tbe crown, and enact that it should be made to itself, even if it has no sovereignty, for it certainly has tbe same right of self-protection that a sovereign power has. Tbe question of to whom tbe forfeiture sbab be made is certainly tbe subject of law. It is not above legislative enactments. I do not think my brother justices would bold that congress might not pass a law saying that tbe forfeiture need not be made to any sovereign power, but even might be made to a Territory, although it possessed no sovereignty, or to a county. This only shows that this matter is a rightful subject of legislation. And I am unable to see bow such legislation interferes with tbe constitution of tbe United States, its laws, or tbe Organic Act of our Territory, or is not a rightful subject of legislation, and these are tbe only limitations upon our legislative authority. Congress has delegated to tbe legislative power of tbe *155' Territory the right to legislate upon all rightful subjects of legislation. States legislate upon this subject. Congress may. It is certainly a rightful subject of legislation then. It seems to be contended, however, that the forfeiture cannot be made to the Territory, for the reason that the Territory cannot take the title to real estate. Orn* legislative authority passes laws authorizing counties to hold real estate for the purposes of court-houses and jails, and school districts, real estate for the purposes of erecting school-houses. Undoubtedly the Territory could buy real estate for the purposes of a Territorial capítol, or for erecting a Territorial college, or for any other purpose that was a legitimate object of government. And it has ever been contended by the English government, and the State governments of this Union, that it is a legitimate province of government to take the forfeiture of real estate vested in aliens, to prevent a foreign power from acquiring the ownership of permanent property in the country. The Territory of .Montana, I repeat, is a government, and has the same rights of self-preservation as any other government. It is contended that the forfeiture must revert to the grantor. This is not law, “for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange,” is the language of Justice BlaokstoNE (Book 1, page 372). The doctrine of this court, as I have before shown, is that the general government has parted with this easement, known as a mining claim in this case, and because it has become vested in an alien, it does not re-invest in the general government. There is no law that authorizes such a rule. And to show that this is not the law, I have but to state that in the “Western States,” where the general government once owned the title to .all the real estate, forfeitures are claimed and exacted by the States where real estate becomes vested in an alien. If property conveyed to an alien was held by him for the benefit of the original grantor, this would not be the case. The general government, as to its title to lands, is considered only as an individual proprietor.
In this discussion, I have only contended for the right of the Territorial legislative authority to pass a law forfeiting real estate acquired by an alien to the Territory. I do not think it necessary to examine the law under consideration, to see whether it *156properly provides for sucb a forfeiture. My opinion is that it does. The majority of the court have based their judgment upon the ground mainly that the legislative power does not extend so far as to provide for such a forfeiture. I have contended that it does, and that it is a rightful subject of legislation. And I believe that time will-fully demonstrate the benefits that would have accrued to this Territory had such legislation been sustained.
Note. —The act of the legislative assembly, entitled “An act to provide for the forfeiture to the Territory of placer mines held by aliens,” approved January 12, 1872, was repealed by an act approved January 15,1874. Sts. 8th Sess. 97. — Rep.