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144 condition constitutes one more of the numerous illustrations, drawn from the world's experience, of the proverb, that "mankind in general are about as lazy and inefficient as they dare to be." It is also interesting to note, in connection with this subject, that a general complaint exists in Mexico of the scarcity and dearness of labor. Thus, the "Mexican Financier," in a recent article, says:

"It is idle to hope for profitable culture in this country while labor is both scarce and dear, thus compelling the planters to look to Asia for cheap labor.

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Rh

And yet the population of Mexico, to the square mile, is believed to be at least equal to, and possibly greater than, that of the United States.

In Yucatan, United States Consul Thompson reports (1885) the condition of labor to be as follows:

"Suitable farm-labor is very scarce. Strangers, from the nature of the climate, are useless, absolutely so, as farm-laborers. Laborers from the Canary Islands have been imported, but the experiment was a failure. A negro laborer stands the test no better than the Canary-Islanders. Upon the Mayan Indian alone fall the heaviest burdens of agricultural labor."

The following are the retail prices of some of the principal articles of domestic consumption in Mexico: Fresh beef, twelve to eighteen cents per

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146 pound; lard, twenty to twenty-five cents; coffee, twenty-five cents; sugar, unrefined, twelve to twenty cents; table-salt, six cents; kerosene, eighty-seven cents per gallon; potatoes (city of Mexico), twenty-five cents per dozen; butter, fifty cents to one dollar per pound; flour, ten to twelve cents per pound; corn-meal, not usually in the market, unless imported; candles, thirty to fifty cents; un-bleached cottons, ten to fifteen cents per yard; calicoes, fifteen to twenty cents per yard. Utensils of tin and copper are fifty per cent dearer than in the United States; while the retail prices of most articles of foreign hardware (and none other are used) are double, treble, and even four times as much as in the localities whence they are imported. "Between the extremes, a modest and economical lady's wardrobe will cost, at the city of Mexico, about fifty per cent more than the same style in the United States. This, however, is modified by the climate, which requires no change of fashions to suit the seasons, as the same outfit is equally appropriate for every month in the year."—Strother.

Imported articles of food are exceedingly high at retail in the city of Mexico. American hams, in canvas, forty to fifty cents per pound; American salmon, cans of one pound, one dollar; mackerel, eighteen to twenty-five cents each; codfish,

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Rh twenty-five cents per pound; cheese, fifty to seventy-five cents.

It is also an undoubted fact that, in the matter of supplies of Mexican domestic products, a larger price is sometimes demanded in a wholesale transaction than for the supply of a smaller quantity of the same article. This was the experience, in at least one instance, in railroad construction near Tampico, when it was desired to contract for railroad-ties, although there was no scarcity of timber; and the following story, illustrative of the same point, is told of one of the leading hotels in the city of Mexico, to the manager of which the agent of an American excursion party applied for accommodations. "How much are your rooms per day?" asked the agent. "Four dollars," was the answer. "But suppose I bring you eighty people?" "Four dollars and a half per head in that case," returned the party of the second part. "That makes more trouble."

In short, this condition of affairs in Mexico, in respect to wages and the cost of production, is in strict accord with what has been deduced within recent years from the experience of other countries; namely, that the only form of labor to which the term "pauper" has any significant or truthful application is labor engaged in handicrafts as contradistinguished from machinery production;

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148 and that, where such handicraft or ignorant labor is employed in manufacturing, the final cost of its product, as represented by the amount of time required, or the number of persons called for in any given department, must of necessity be high. Hence, wages under such circumstances (as exist in Mexico and elsewhere) will be very low, and the conditions of life very unsatisfactory and debasing.

On the other hand, when machinery is intelligently applied for the conversion or elaboration of comparatively cheap crude materials—coal, ores, metals, fibers, wood, and the like—a very little manual labor goes a great way, and production (as in the United States) is necessarily large. This being sold in the great commerce of the world, gives large returns, and the wages represented in such production will be high, because the cost of the product measured in terms of labor is low, and the employer is thereby enabled to pay liberally; and in fact is obliged to do so, in order to obtain under the new order of things what is really the cheapest (in the sense of the most efficient) labor. Or, to state this proposition more briefly, the invariable concomitant of high wages and the skillful use of machinery is a low cost of production and a large consumption.

The following circumstance curiously illustrates

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Rh the prevailing low money rate of wages in Mexico, and the obstacle which such cheap labor interposes to the attainment of large production: At one point on the "Mexican Central Railroad," while journeying south, a machine, the motive-power of which was steam, for pumping water into tanks for the supply of the locomotives, was noticed, and commented upon for its compactness and effectiveness. On the return journey, this machinery was no longer in use; but a man, working an ordinary pump, had been substituted. The explanation given was that, with hand-labor costing but little more than the (Colorado) coal consumed, the continued employment of an engine and an American engineer was not economical.

But at no point within the observation of the writer, either on the Continent of North America or in Europe, do wages, or rather remuneration for regular labor, reach so low a figure as at Santa Fé, within the Territories of the United States. At this place, one of the notable industrial occupations is the transport and sale of wood for use as fuel. The standard price for so much as can be properly loaded upon a donkey (or burro) is fifty cents. The money price of the wood is high: but, as it is brought from a distance of fifteen, twenty, thirty, or even more miles, each load may be fairly considered as representing the exclusive

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150 service of a donkey for two days—going, returning, and waiting for a purchaser—and the services or labor of an able-bodied man, as owner or attendant, apportioned to from three to five donkeys for a corresponding length of time. The gross earnings of man and donkey can not, therefore, well be in excess of twenty-five cents per day; from which, if anything is to be deducted for the original cost of the wood, its collection and preparation, and for the subsistence of the man and beast, the net profit will hardly be appreciable. Or, in other words, able-bodied men, with animals, are willing to work, and work laboriously, at Santa Fé, in the United States, for simple subsistence; and a subsistence, furthermore, inferior in quality and quantity to the rations generally given to acknowledged paupers in most American poor-houses; and yet no high-priced laborer in the United States has any more fear of the industrial competition of the pauper laborers of Santa Fé than he has of the competition of the paupers who are the objects of charitable support in his own immediate locality.

One of the largest, best-conducted, and (by repute) most profitable of the cotton-factories of Mexico, and one of the largest manufacturing establishments in the country, is the "Hercules" mill, located near Querétaro, 152 miles from the capital.

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Rh Taking a tramway, with comfortable cars of New York construction, for a distance of about three miles from the plaza, the visitor, on approaching, finds an establishment, embracing several acres, entirely surrounded by a massive, high, and thick wall, with gateways well adapted for defense and exclusion. On entering, the objects which first arrest attention are an attractive little park, with semi-tropical trees and shrubs; handsome residences for the owner and his family, and a stone armory or guard-house—with men in semi-military costume lounging about—containing a complete military equipment for thirty-seven men, horse and foot—Winchester rifles and two small pieces of artillery. Without being too inquisitive, the visitors are given to understand that all this military preparation was formerly more necessary than at present; but that even now it was prudent for the officers or agents of the mill to have an armed escort in making collections, contingent upon the sale of its products, from the country dealers and shopkeepers. Back of the guard-house were the mill-buildings proper, warehouses, stables, boiler-house, etc., all well arranged, of good stone construction, scrupulously clean, and in apparently excellent order.

The machinery equipment, as reported, was 21,000 spindles and 700 looms; its product being

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152 a coarse, unbleached cotton fabric, adapted for the staple clothing of the masses, and known as manta. Both water- and steam-power were used. In the case of the former, a small stream, with a high fall, being utilized through an iron overshot-wheel, forty-six and a half feet in diameter—one of the largest ever constructed; for the latter a fine "Corliss" engine from Providence, Rhode Island. The spinning-frames and a part of the looms were from Paterson, New Jersey. The remainder of the looms, the steam-boilers, and the immense water-wheel, were of English workmanship. Wood, costing sixteen dollars per cord, was used for fuel; and the motive-power was in charge of a Yankee engineer, who had been induced to leave the Brooklyn (New York) water-works, by a salary about double what he had received there; but who declared that nothing would induce him to remain beyond the term (two years) of his contract, which had nearly expired. The motives prompting to this conclusion were suggested by observing, on visiting his quarters outside of the gates, that a revolver hung conveniently near the head of his iron bedstead, while another was suspended from the wall, in close proximity to the little table on which his meals were served; and also by the following remark, called out by a suggestion from one of the visitors, that a rug on the

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Rh hard, unattractive red-tile floors would seem to be desirable: "If you had to examine your bed every night, to see that a scorpion or centiped was not concealed in its coverings, the less of such things you had to turn over the better."

According to information furnished on inquiry, the hours of labor in this typical Mexican cotton-mill were as follows: "help" work from daylight until 9.30 P. M., going out a half-hour for breakfast at 9.30 A. M., and an hour for dinner, at 2 P. M.; Saturday night the machinery runs later. The spinners earn from thirty-seven and a half to fifty cents per day; weavers from six to seven dollars per week. On hearing these statements, one of the visiting party, more interested in humanitarianism than in manufactures or economics, involuntarily remarked, "Well, I wonder if they have got a God down in Mexico!" There were present at this visit and inspection a representative of one of the large cotton-factories at Fall River, and one of the best recognized authorities on mechanics and machinery, from Lowell, Massachusetts; and the judgment of these experts, after taking all the facts into consideration, was, that if this Mexican cotton-factory, with all its advantages in the way of hours of labor and wages, were transferred to New England, it would, in place of realizing any profit, sink a hundred

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154 dollars per annum. And yet the proprietor of this mill (Don Rubio) and his family are reputed to be among the richest people in Mexico.

The adoption of the theory of "free trade," or "protection," as the basis of a national fiscal policy, does not appear to have as yet interested, to any great extent, either the Government or the people of Mexico; and it is doubtful whether public opinion has come to any decision as to which policy will best promote the progress of the country. Under the tariff act in force in 1882, there were one hundred and four specifications of articles which could be imported free of duty—including vessels of all kinds, machinery, and most railroad equipments and cars—and eleven hundred and twenty-nine specifications of articles subject to duties, nearly all of which (only thirty-two exceptions) are simple and specific. No other rule seems to have been recognized and followed in imposing duties on imports than that "the higher the duty (or tax) the greater will be the accruing revenue"; and the ad valorem equivalents of many of the apparently simple and moderate duties levied on imports into Mexico are consequently so excessive, that the average rate of the Mexican tariff is probably greater than that adopted at present by any other civilized country. All domestic manufacturing industries that could

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Rh be exposed to foreign competition—as, for example, the comparatively few cotton, woolen, and paper mills, and print-works—accordingly enjoy a degree of protection that nearly or quite amounts to prohibition of all competitive legitimate imports; though it may be doubted whether the fiscal officers who advised or determined such rates had any knowledge or care for any economic theory, but they may have been, and probably were, influenced in their conclusions by the representations of interested parties. But, be this as it may, the practical working of such a tariff, in such a poor, undeveloped country as Mexico, is well illustrated by a recurrence to Don Rubio and his cotton-mill. The average fabric produced at this establishment is protected by a duty on similar imports of nine and three quarters cents per square metre, or about eight cents per square yard; and sells in the city of Mexico for four dollars per piece of thirty-two varas (or thirty yards), or at the rate of about thirteen cents per square yard. In the more remote districts of the country, or at retail, these prices are considerably greater. Domestic industry is thereby promoted; and the cotton-manufacturers of Mexico amass great wealth.

But let us look at the other side of this picture. The number of operatives who obtain opportunities for employment by reason of the existence

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156 of cotton manufacturing, including print-works, in Mexico is probably not more at the present time than twelve thousand. The population of Mexico, to whom cotton-cloth is the chief and essential material for clothing, may be estimated at ten million. Free from all tariff restrictions, the factories of Fall River, Massachusetts, could sell in Mexico at a profit a cotton fabric as good as, or better than, that produced and sold by the factory at Querétaro, for five cents a yard, or even less. A population of ten million, poor almost beyond conception, have therefore to pay from two to three hundred per cent more for the staple material of their simple clothing than needs be, in order that some other ten or twelve thousand of their fellow-citizens—men and women—may have the privilege of working exhaustively from fourteen to fifteen hours a day in a factory, for the small pittance of from thirty-five to seventy cents, and defraying the cost of their own subsistence! Nor is this all. Under such excessive duties as now prevail, comparatively few cheap coarse cotton fabrics are legitimately imported into Mexico, and the Government fails to get the revenue it so much needs. The business of smuggling is, however, greatly encouraged, and all along the northern frontiers of Mexico has become so well organized and so profitable as to successfully defy the

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Rh efforts of the Government to prevent it. On the shelves of the stores of all the Mexican towns and cities, within two hundred and fifty to three hundred miles from the northern frontier, American cotton fabrics predominate. Five hundred miles farther "southing," however, seems to constitute an insuperable obstacle to the smuggler, and similar goods of English and French manufacture almost entirely replace at such points the American products. The present loss to the Mexican Government from smuggling along its northern frontier has been recently estimated by the "Mexican Financier" at not less than $1,500,000 per annum—a matter not a little serious in the present condition of Mexican finances; while all intelligent merchants along the frontier are of the opinion that neither the United States nor the Mexican Treasury officials can, by reason of this great illicit traffic, have any accurate knowledge of the amount of international trade between the two countries.

But if the present Mexican tariff on the import of foreign cotton fabrics were to be materially reduced, or abolished, would not, it may be asked, the cotton-factories of Mexico be obliged to suspend operations? Undoubtedly they would; but who, save the manufacturers, would thereby experience any detriment? The Mexican people would continue to have cotton-cloth the same as

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158 now, and probably in greater abundance; for there is no other so cheap and suitable material available to them for clothing. But as the American and European manufacturers would not make their cloth a gift, or part with it for nothing, the Mexican would be obliged to buy it; or, what is the same thing, give some product of his labor in exchange for it. Consequently, the opportunity for the profitable employment of the Mexican people as a whole could not be restricted, if, in consequence of the abolition of the existing tariff on the import of cotton fabrics, they were relieved from an exorbitant and unnecessary enhancement of the cost of their clothing.

The great attractions which Mexico, in common with other Central American and South American countries and the West India islands offer for immigration, are the geniality of climate and the small amount of physical exertion necessary to insure a comfortable subsistence. But once remove or neutralize these inducements by oppressive taxation and restrictions on trade and commerce, and immigration and the accession of capital from without will be reduced to a minimum, or altogether prevented.

Mines and Mining.—The mining for the precious metals, and more especially for silver, has been, since the conquest of the country, and is

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Rh now, one of the great industries of Mexico, although it is the opinion of persons, well qualified to judge, that the country to-day would have been richer and more prosperous in every way if no mines of the precious metals had ever been discovered within its territories. That the product and profit of silver-mining in the past have been very great is certain; that a considerable number of mines are yet worked to a profit, and that future mines of great value will be discovered in the future, is also altogether probable. The popular ideas concerning the amount of the precious metals that have been furnished by the Mexican mines since the discovery and conquest of the country by the Spaniards, and the present annual product of gold and silver by Mexico, are, doubtless, a good deal exaggerated. The coinage records since the establishment of mints in Mexico, in 1537, down to 1883-'84, which are accepted as substantially accurate, and which indicate approximately the value of precious metals produced by the country during this period, are as follows: From 1537 to 1821 (the last year of the Spanish colonial epoch), gold, $68,778,411; silver, $2,082,260,656; total, $2,151,039,067.

From 1822-'23 to June 30, 1884, gold, $45,605,793; silver, $1,023,718,366; total, $1,069,324,159. At the present time the annual product of gold

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160 and silver in the United States is far greater than that of Mexico. Thus, for the year 1883 the production of the United States was estimated to have been—gold, $30,000,000; silver, $46,200,000; total, $76,200,000. For Mexico, the estimates for the year 1883-'84 were, gold, $500,000; silver, $24,000,000; total, $24,500,000.

The greatest obstacle in the way of the successful prosecution and development of the mining industry of Mexico, as also in the case of manufactures, is the scarcity of fuel and water for the generation and application of mechanical power, and also the scarcity of labor—many of the mines being at great distances from centers of population—and the lack of convenient and cheap means of transportation. The impression which an American visitor to one of the great Mexican silver-mines, or reducing-works, at first receives is almost always that of surprise at the apparent rudeness and shiftlessness of the methods of working. But a further acquaintance soon satisfies him that what is done is the result of long experience, and is the best that probably could be under all the circumstances. Thus, for example, for the purpose of extracting the silver from the ore by amalgamation, the rock, ground to a fine powder and made into a paste with water, is spread out on the floor of a large court, and then

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Rh worked up, with certain proportions of common salt, sulphate of iron, and quicksilver, into a vast mud-pie, by means of troops of broken-down horses or donkeys, which for two or three weeks in succession tramp round and round in the mass—animals and Indian drivers alike sinking leg-deep in the paste at every movement. When the amalgamation is completed, it is brought in vessels or baskets rather than with wheelbarrows, to washing-tanks, where half-naked men and boys further "puddle" it until the metal falls to the bottom, and the refuse runs away. The process is hard, and even cruel, for both man and beast, and is not expeditious; but it is economical (considered in reference to the cost of other methods involving power), and is effective.

The number of mining properties at present worked in Mexico by American companies is understood to be about forty.

The popular idea that there are a considerable number of old Spanish mines in Mexico which were worked to great profit before the revolution, and then abandoned when their original proprietors were driven from the country, and are now ready to return great profits to whoever will rediscover and reopen them, has probably very little foundation in fact. Sixty-five years have now elapsed since Mexico achieved her independence,

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162 and during all this time the Mexicans, who are good miners, and to whom mining has to a certain extent the attractiveness of lottery ventures, have, we may be sure, shrewdly prospected the whole country and have not concealed any of its business opportunities. Capital, furthermore, has not been wanting to them. For, in the early days of the independence of the republic, the idea that the working of old Spanish mines in Mexico promised great profits amounted to almost a "craze" in England; and millions on millions of British capital were poured into the country for such objects; while the mining districts of Cornwall were said to have been half depopulated, through the drain on their skilled workmen to serve in the new enterprises. It is sufficient to say that the results were terribly disastrous.

Many mines in Mexico could be profitably worked, and probably would be, by American capital, if the American tariff on the import of ores did not prevent them from being sent to smelters in the United States. As it is, a considerable quantity of lead and copper ores, rich in gold and silver, are sent from mines in Northern Mexico to points as far distant as Germany for conversion—as freight to Laredo and Corpus Christi, in Texas, and thence as ballast to Europe, at a cost of from sixteen to twenty dollars per ton.

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164 so-called "octroi" taxes, when foreign articles or merchandise have once satisfied all customs requirements at a port, or place of entry, and have been permitted to pass the frontier, they are exempted from any further taxation as imports, or so long as they retain such a distinctive character. But, in Mexico, each State of the republic has practically its own custom-house system; and levies taxes on all goods—domestic and foreign—passing its borders; and then, in turn, the several towns of the States again assess all goods entering their respective precincts. The rate of State taxation, being determined by the several State Legislatures, varies and varies continually with each State. In the Federal district—i. e., the city of Mexico—the rate was recently two per cent of the national tariff; but, in the adjoining State of Hidalgo, it was ten per cent, and in others it is as high as sixteen per cent. The rate levied by

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Rh the towns is said to be about nine per cent of what the State has exacted; but in this there is no common rule. Thus, under date of April 9, 1886, an official of the "Mexican National Railroad" writes: "Goods destined for San Luis (i. e., via railway) pay a local tax in Laredo, Mexico, but on arrival at San Luis pay a municipal tax. These taxes are eternally changing, and are sometimes prohibitory. Take lumber, for example. Three months ago there was a municipal tax of thirty dollars per one thousand feet. This has now been reduced to one dollar per one thousand feet; but there is no certainty that the old tax will not be restored." Nor is this all. For the transit of every territorial boundary necessitates inspection, assessment, the preparation of bills of charges, and permits for entry; and all these transactions and papers involve the payment of fees, or the purchase and affixing of stamps. Thus, by section 377 of the tariff law of December, 1884, it is ordained "that the custom-house shall give to every individual who makes any importation, upon the payment of duties, a certificate of the sum paid, which certificate, on being presented to the administrator of the stamp-office in the place of

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166, shall be changed for an equal amount in custom-house stamps. For this operation the interested party shall pay, to the administrator of whom he receive the stamps, two per cent in money (coin) of the total value of the stamps." All imports into Mexico at the present time are liable, therefore, to these multiple assessments; and the extent to which they act as a prohibition on trade may be best illustrated by a few practical examples.

In 1885, an American gentleman, residing in the city of Mexico as the representative of certain New England business interests, with a view of increasing his personal comfort, induced the landlady of the hotel where he resided (who, although by birth a Mexican, was of Scotch parentage) to order from St. Louis an American cooking-stove, with its customary adjuncts of pipes, kettles, pans, etc. In due time the stove arrived; and the following is an exact transcript of the bills contingent, which were rendered and paid upon its delivery:

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Rh {| cellspacing="2"
 * $56 60
 * Import Duties:
 * $50 43
 * $107 03
 * }
 * $56 60
 * Import Duties:
 * $50 43
 * $107 03
 * }
 * $56 60
 * Import Duties:
 * $50 43
 * $107 03
 * }
 * $56 60
 * Import Duties:
 * $50 43
 * $107 03
 * }
 * $56 60
 * Import Duties:
 * $50 43
 * $107 03
 * }
 * $56 60
 * Import Duties:
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $50 43
 * $107 03
 * }
 * $107 03
 * }
 * $107 03
 * }
 * }
 * }
 * }
 * }
 * }
 * }
 * }

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178

In 1878 Hon. John W. Foster, then United States minister to Mexico, in a communication to the Manufacturers' Association of the Northwest (Chicago), thus analyzed the items of the cost, in the city of Mexico, of a tierce, weighing gross 328 pounds, containing 300 pounds (net) of sugar-cured hams:

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Rh {|width="365px" align="center" cellpadding="2" style="font-size:85%; line-height:95%;" a ton $33 in custom-house, etc
 * Brought forward
 * align="right"|$83 79
 * Exchange on Vera Cruz, 1 per cent on $39.06
 * align="right"|39
 * Railroad freight from Vera Cruz to Mexico, 140 kilos, at $54.32
 * align="right"|39
 * Railroad freight from Vera Cruz to Mexico, 140 kilos, at $54.32
 * Railroad freight from Vera Cruz to Mexico, 140 kilos, at $54.32
 * align="right"|7 60
 * Local duties in city of Mexico, 2 per cent on Federal duty,
 * Local duties in city of Mexico, 2 per cent on Federal duty,
 * align="right"|12 66
 * Local expenses in city of Mexico, cartage from depot, expenses
 * Local expenses in city of Mexico, cartage from depot, expenses
 * align="right"|75
 * align="right"|———
 * Total
 * align="right"|$93 19
 * }
 * Total
 * align="right"|$93 19
 * }
 * }

The net cost of one pound of imported American ham in the city of Mexico in 1878 was therefore 31 cents, or $1 in hams in New York was equal to $2.82 in Mexico! A similar analysis showed an invoice of ten kegs of cut nails, costing two and a half cents per pound in New York, or $22.50, to have cost 14$16/100$ cents per pound, or $141.64, when imported, in the city of Mexico; or $1 value in nails in New York was equal to $6.29 in Mexico. In the case of salt, costing $2 per barrel in New York, the cost of importation was $20.40; or $1 of salt in New York was equal to $10.20 in Mexico! And in the case of (Milwaukee) beer, a barrel costing, on board steamer in New Orleans, $13, cost $35.61 in the city of Mexico. It is clear, therefore, as Mr. Foster points out in connection with the above exhibits, that "articles of the most common use in the United States must be luxuries in Mexico, on account of their high price"; and that while "this would be the case, with such charges, in almost

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170 any country, however rich it might be, it is especially so in Mexico, where there is so much poverty."

Again, the Mexican tariff provides that the effects of immigrants shall be admitted free. "But this," writes an officer of the "Mexican National Railroad Company," "is practically a dead letter, from the fact that interior duties are levied on everything the immigrant has, before he gets settled; and these are so great that no one goes. I've never known but one case go through Laredo.… A carpenter, or other mechanic, who desires to get employment in Mexico, has such heavy duties levied on his tools on passing the national

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Rh or State frontiers, that few are willing or able to pay them. Hence few American mechanics find their way into the country, unless in accordance with special contract."

This practice of locally taxing interstate commerce is in direct contravention of an article in the Mexican Constitution of 1857, and it is said also of express decisions of the national Supreme Court. Several of the leading States of Mexico have at different times tried the experiment of prohibiting it by legislative enactments; but the States and municipalities of the country are always hard pressed to raise money for their current expenditures, and find the taxing of merchandise in transit so easy a method of partially solving their difficulties that the Federal authorities have not yet been able, or, speaking more correctly, willing to prevent it.

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172 The reciprocity treaty, which was recently proposed between the United States and Mexico, provided that certain articles exported from the United States into Mexico should be admitted free of all import duties, whether Federal or local; but it did not prohibit, as has been generally supposed, the several Mexican States from taxing such imports, in common with other articles, when the same are found within their jurisdiction! And it is claimed that such taxes are not in the nature of import duties. But, be this as it may, the effect on the internal commerce of Mexico is substantially one and the same.

The Mexican tariff system also provides for the taxation of exports, notably on the following products: gold bullion, one fourth of one per cent; silver bullion, one half of one per cent; coined gold and silver, having already paid at the mint, exempt; orchil (a lichen from which a fine purple dye is obtained), $10 per ton; wood for

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Rh work and construction, $2.50 per 31.3 American cubic feet. Small export duties are also imposed on coffee and heniquen. A revision of the Mexican tariff, with a view of modifying certain of its exorbitant duties, more especially those levied on the importation of wines and liquors and certain articles of food, has been recently recommended (1885) to the Government by a committee of delegates of prominent men of business from different parts of the republic.

The existence in a state of the New World of a system of taxation so antagonistic to all modern ideas, and so destructive of all commercial freedom, is certainly very curious, and prompts to the following reflections: First, how great were the wisdom and foresight of the framers of the Constitution of the United States in providing, at the very commencement of the Federal Union, that no power to tax in this manner, and for their own use or benefit, should ever be permitted to the States that might compose it (Article I, section 10). Second, how did such a system come to be ingrafted on Mexico, for it is not a modern contrivance? All are agreed that it is an old-time practice and a legacy of Spanish domination.

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174 But, further than this, may it not be another of those numerous relics of European mediævalism which, having utterly disappeared in the countries of their origin, seem to have become embalmed, as it were, in what were the old Spanish provinces of America—a system filtered down through Spanish traditions from the times when the imposition of taxes and the regulation of local trade were regarded by cities and communities in the light of an affirmation of their right to self-government, and as a barrier against feudal interference and tyranny; and when the idea of protecting industry through like devices was also not limited as now to international commerce, but was made applicable to the commercial intercourse of cities and communities of the same country, and even to separate trades or "guilds" of the same city? Whether such speculations have any warrant in fact or not, it is at least certain that we have in the Mexico of to-day a perfect example of what was common in Europe in the middle ages; namely, of protection to separate interests (through taxation) carried out to its fullest and logical extent, and also of its commercial and industrial consequences.

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Rh So much for the tariff system of Mexico. The "excise" or "internal revenue" system of the country is no less extraordinary. It is essentially a tax on sales, collected in great part through the agency of stamps—a repetition of the old "alcavala" tax of Spain, which Adam Smith, in his "Wealth of Nations," describes as one of the worst forms of taxation that could be inflicted upon a country, and as largely responsible for the decay of Spanish manufactures and agriculture. Thus the Mexican law, re-enacted January, 1885, imposes a tax of "one half of one per cent upon the value in excess of $20 of transactions of buying or selling of every kind of merchandise, whether at wholesale or retail, in whatever place throughout the whole republic." Also, one half of one per cent "on all sales and resales of country or city property; upon all exchanges of movable or immovable property; on mortgages, transfers, or gifts, collateral or bequeathed inheritances; on

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176 bonds, rents of farms, when the rent exceeds $2,000 annually; and on all contracts with the Federal, State, or municipal governments. Every inhabitant of the republic who sells goods to the value of over $20 must give to the buyer "an invoice, note, or other document accrediting the purchase," and affix to the same, and cancel, a stamp corresponding to the value of the sale. Sales at retail are exempt from this tax; and retail sales are defined to be "sales made with a single buyer, whose value does not exceed $20. The reunion, in a single invoice, of various parcels, every one of which does not amount to $20, but which in the aggregate exceed that quantity," remains subject to the tax. Retail sales in the public markets, or by ambulatory sellers, or licensed establishments whose capital does not exceed $300, are also exempt. Tickets of all descriptions—railroad, theatre, etc.—must have a stamp, as must each page of the reports of meetings; each leaf of a merchant's ledger, day or cash book, and every cigar sold singly, which must be delivered to the buyer in a stamped wrapper. Sales of spirits at wholesale pay three per cent; gross receipts of city railroads, four per cent; public amusements, two per cent upon the amount paid for entrance; playing-cards, fifty per cent—paid in stamps—on the retail price; and manufactured tobacco a variety

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Rh of taxes, proportioned to quality and value. Mercantile drafts are taxed at $10 per $1,000, which means a dollar on every hundred.

Farms, haciendas and town estates are required to be taxed at the rate of $3 per each $1,000 of the valuation, but such is the influence of the land-owners that the valuation is almost nominal. In Vera Cruz the rate is reported at about 2 mills on the dollar for the most productive portions of country estates; while in the Pacific State of Colima the rate is said to be 1$1/undefined$ per cent. Land and buildings not actually producing income are exempt from taxation, notwithstanding they may be continually enhancing in value.

In the towns, this system of infinitesimal taxation is indefinitely repeated, the towns acting as collectors of revenue for the Federal and State governments, as well as for their own municipal requirements. All industries pay a monthly fee: as tanneries, 50 cents; soap-factories, $1. So also all shops for the sale of goods pay according to their class, from a few dollars down to a few cents per month. Each beef animal, on leaving a town, pays 50 cents; each fat pig, 25 cents; each sheep, 12 cents; each load of corn, fruit,

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178, or charcoal, 6 cents (as a supposed road-tax), and so on; and, on entering another town, all these exactions are repeated. A miller, in Mexico, it is said, is obliged to pay thirty-two separate taxes on his wheat, before he can get it from the field and offer it, in the form of flour, on the market, for consumption. As a matter of necessity, furthermore, every center of population—small and big, city, town, or hamlet—swarms with petty officials, who are paid to see that not an item of agricultural produce, of manufactured goods, or an operation of trade or commerce or even a social event, like a fandango, a christening, a marriage, or a funeral, escapes the payment of tribute.

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Rh Great complaint is made, in the Territory of Lower California and probably elsewhere, at the existence and rigid enforcement of a tax-law known

 25. All other establishments of whatever kind will pay, according to the pleasure of the town authorities, a monthly tax, according to the amount of their capital. All articles which are not contained in the present tariff remain subject to the pleasure of the authorities of the city of Guerrero to levy upon them a contribution which they think right and just. In addition to all this, every male in the State between the ages of eighteen and sixty-six pays twelve cents monthly as a personal tax. Common laborers pay in addition six cents monthly as a tax for

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180 as "portazgo" the operation of which is thus described by United States Consul Turner, in a recent report to the State Department: "Under the present general tariff, lumber, horses, cattle, hogs, and some other products, can be imported from foreign countries free of duty; but, if any of these same products are brought here (La Paz) from any part of Mexico, an excessive duty is imposed upon them. Cattle may be landed here from California free of duty; but, if a poor 'ranchero' brings a cow to La Paz to sell, he must pay a duty of $2 upon it—that is, if he brings it by water; for it is one of the curiosities of this regulation that all articles introduced by land enter free, and all brought by water pay duties. The enforcement of this law is universally complained of, all over the Territory, and induces all to become smugglers."

In fact, trade is so hampered by this system of taxation, that one can readily understand and

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Rh accept the assertion that has been made, that people with capital in Mexico really dread to enter into business, and prefer to hoard their wealth, or restrict their investments to land (which, as before pointed out, is practically exempt from taxation), rather than subject themselves to the never-ending inquisitions and annoyances which are attendant upon almost every active employment of persons and capital, even were all other conditions favorable. Mexico, from the influence of this system of taxation alone, must, therefore, remain poor and undeveloped; and no evidence or argument to the contrary can in any degree weaken this assertion. Doubtless there are many intelligent people in Mexico who recognize the gravity of the situation, and are most anxious that something should be done in the way of reform. But what can be done? If autocratic powers were to be given to a trained financier, thoroughly versed in all the principles of taxation and of economic sciences, and conversant with the results of actual experiences, the problem of making things speedily and radically better in this department of the Mexican state is so difficult that he might well shrink from grappling with it.

In the first place, the great mass of the Mexican people have little or no visible,

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182 property which is capable of direct assessment.

Again, in any permanent system of taxation, taxes in every country or community, in common with all the elements of the cost of production and subsistence—wages, profits, interest, depreciation, and materials—must be substantially drawn from each year's product. Now, the annual product of Mexico is comparatively very small. Thus, for example, Mr. Sutton, United States consul-general at Matamoros, as before noticed, has shown that the annual product of the single State of South Carolina is absolutely two and a half times—or, proportionally to area, twenty-five times—as valuable as the annual product of the entire northern half of Mexico; and the Argentine Republic of South America, with only one third of the population of Mexico, has a revenue twenty per cent greater, and double the amount of foreign commerce. Product being small, consumption must of necessity be also small. Ex-Consul Strother (report to State Department, United States, 1885) says: "The average cost of living (food and drink) to a laboring-man in the city of Mexico is about twenty-five cents per day; in the country from twelve and a half to eighteen cents. The average annual cost of a man's dress is probably not over five

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Rh dollars; that of a woman double that sum, with an undetermined margin for gewgaws and cheap jewelry." Mr. Lambert, United States consul at San Blas, reports under date of May, 1884: "The average laborer and mechanic of this country may be fortunate enough, if luck be not too uncharitable toward him, to get a suit of tanned goat-skin, costing about six dollars, which will last him as many years."

Consul Campbell, of Monterey, under date of October, 1885, reports: The Mexican laborer is at but small cost for his clothing. He wears instead of shoes, sandals, which are nothing more than pieces of sole-leather cut to the size of the foot and tied on by strings of dressed hide. His clothes are made of the coarse, heavy linen of the country, and a full suit costs him $2.50. He always carries a blanket, which in many cases is woven by the women of his family, but, in case he buys it, costing from $2.50 to $10; but, as one blanket will last him many years, it adds but little to his yearly expenses. The total cost of clothing for one year will not exceed $10 or $12. He is at an equally small expense for the necessary clothing for his family. Four or five dollars a year will provide one or two calico dresses for his wife; and his children, when clothed at all, are but scantily covered with the remnants laid aside by the

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184. Of household goods he is ignorant. A few untanned hides are used for beds, and dressed goat or sheep skins serve for mattress and covering.

The food of the masses consists mainly of agricultural products—corn (tortillas), beans (frijoles), and fruits, which are for the most part the direct results of the labor of the consumer, and not obtained through any mechanism of purchase or exchange. Persons conversant with the foreign commerce of Mexico are also of the opinion that not more than five per cent of its population buy at the present time any imported article whatever; or that, for all purposes of trade in American or European manufactures, the population is much in excess of half a million. Revenue in Mexico from any tariff on imports must, therefore, be also limited; and this limitation is rendered much greater than it need be by absurdly high duties; which (as notably is the case of cheap cotton fabrics) enrich the smuggler and a few mill-proprietors, to the great detriment of the national exchequer.

It is clear, therefore, that the basis available to the Government for obtaining revenue through the taxation of articles of domestic consumption, either in the processes of production, or through the machinery of distribution, is of necessity very

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Rh narrow; and that if the state is to get anything, either directly or indirectly, from this source, there would really seem to be hardly any method open to it, other than that of an infinitesimal, inquisitorial system of assessment and obstruction, akin to what is already in existence.

Note.—This curious tax experience of Mexico, although especially striking and interesting, is not exceptional, but finds a parallel, in a greater or less degree, in all countries of low civilization, small accumulation of wealth, and sluggish society movement. Thus, in the British island and colony of Jamaica, populated mainly by emancipated blacks and their descendants (554,132 out of a total of 580,804 in 1881), who own little or no land, and through favorable climatic conditions require the minimum of clothing and shelter, and little of food other than what is produced spontaneously, or by very little labor, the problem of how to raise revenue by any form of taxation, for defraying the necessary expenses of government, has been not a little embarrassing. For the year 1884, the revenue raised from taxation on this island represented an average assessment of about $3.40 per head of the entire population; but of this amount an average of about fifty cents only per head could be obtained from any excise or internal taxation; and this mainly through the indirect agency of licenses and stamps, and not by any direct assessment. The balance of receipts was derived from import and export duties, and from special duties on rum, which last furnished nearly one fourth of the entire revenue. During the same year the average taxation of the people of the United States—Federal, State, and municipal—was in excess of fourteen dollars per capita. A condition of things in British India, analogous to that existing in Jamaica, has for many years necessitated the imposition of very high taxes upon salt, as almost the only method by which the mass of the native population could be compelled to contribute anything whatever toward the support of their

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186 government; the consumption of salt being necessary to all, and its production and distribution being capable of control, and so of comparatively easy assessment. In short, if a man can avoid paying rent, make no accumulations, and will live exclusively on what he can himself gather from the bounty of Nature, he can not be taxed, except by a capitation or poll tax; and it would be difficult to see how in such a case even such a tax could be collected. But, the moment he enters into society and recognizes the advantages of the division of labor and exchange, he begins to pay taxes, and the higher the civilization he enjoys the greater will be the taxes.

But the greatest obstacle in the way of tax reform in Mexico is to be found in the fact that a comparatively few people—not six thousand out of a possible ten million own all the land, and constitute, in the main, the governing class of the country; and the influence of this class has thus far been sufficiently potent to practically exempt land from taxation. So long as this condition of things prevails, it is difficult to see how there is ever going to be a middle class (as there is none now worthy of mention), occupying a position intermediate between the rich and a vast ignorant lower class, that take no interest in public affairs, and are only kept from turbulence through military restraint. Such a class, in every truly civilized and progressive country, is numerically the greatest, and comprises the great producers; and because the great producers, the great consumers and tax-payers—for all taxes ultimately fall upon consumption—and so are the ones most interested in the promotion and maintenance of good

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Rh. A tax-policy, however, which would compel the land-owners to cut up and sell their immense holdings, especially if they are unwilling to develop them, would be the first step toward the creation of such a middle class. But it is not unlikely that Mexico would have to go through one more revolution, and that the worst one she has yet experienced, before any such result could be accomplished. At present, furthermore, there is no evidence that the mass of the Mexican people, who would be most benefited by any wise scheme for the partition of the great estates and for tax reform, feel any interest whatever in the matter, or would vigorously support any leader of the upper class that might desire to take the initiative in promoting such changes. And herein is the greatest discouragement to every one who wishes well for the country.

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Bagnell v. Broderick/Dissent McLean

Mr. Justice M'LEAN dissented.

Being opposed to the decision of the Court in this case, I will state, as shortly as I can, the grounds of my dissent. I am induced to do this from the peculiar circumstances of the case.

To sustain his action of ejectment, the plaintiff, in the Circuit Court, gave in evidence a patent to John Robertson, Jr., which states 'that he had deposited in the general land office a certificate numbered one hundred and ninety-two, of the recorder of land titles at St. Louis, Missouri; whereby it appears that, in pursuance of an act of Congress, passed 17 February, 1815, entitled, an act for the relief of the inhabitants of the late county of New Madrid, in the Missouri territory, who suffered by earthquakes, the said John Robertson, Jr., is confirmed in his claim for six hundred and forty acres of land, being survey No. 2,810, and section thirty-two, of township fifty, north, in range fifteen, west of the fifth principal meridian line,' &c. The patent bears date 17th June, 1820. On the 16th November, 1830, the patentee conveyed the land to Augustus H. Evans. And on the 7th June, 1831, Evans conveyed to Broderck, the lessor of the plaintiff.

The defendants first gave in evidence a confirmation of a Spanish claim for settlement and cultivation to John Robertson, Jr., for six hundred and forty acres of land in the Big Prairie, near New Madrid. The entire interest in this right was conveyed by John Robertson, Jr., to Edward Robertson, Sr., the 29th May, 1829.

On the 30th October, 1813, Edward Robertson, Sr., conveyed three hundred arpens of this tract of land to Morgan Byrne. And the 11th of September, 1816, he conveyed to Byrne two hundred and fifty arpens more of the same tract. On the 29th October, 1816, Robertson conveyed to William Shelby two hundred and fifty arpens of the same tract. And on the 2d December, 1816, Shelby conveyed to Levi Grimes; and on the 26th February, 1817, Grimes conveyed to Morgan Byrne.

By these conveyances Byrne became vested with the entire original right of John Robertson, Jr., to the tract of land, as above stated.

Under the act of Congress of the 17th February, 1815, any person owning land within the county of New Madrid, in the Missouri territory, which had been injured by earthquakes, had the right to relinquish the same to the United States, and receive a certificate therefor, specifying the quantity of acres, not to exceed six hundred and forty, which he was authorized to locate on any land of the United States; and on such location being made, the land relinquished became absolutely vested in the United States.

Under this law Byrne relinquished to the United States the six hundred and forty acres in the Big Prairie, as the legal representative of John Robertson, Jr., who was the claimant of record originally. The following is a copy of the certificate of location issued on this relinquishment:--

No. 448. St. Louis, Office of the Recorder of land titles.

September, 1818.

I certify that a tract of six hundred and forty acres of land situate, Big Prairie, in the county of New Madrid, which appears from the books of this office to be owned by John Robertson, Jr., has been materially injured by earthquakes; and that in conformity with the provisions of the act of Congress of the 17th February, 1815, the said John Robertson, Jr., or his legal representatives, is entitled to locate six hundred and forty acres of land on any of the public lands of the territory of Missouri, the sale of which is authorised by law.

[Signed.] FREDERICK BATES.

And on the 8th of October, 1818, Byrne made the following location:--

'Morgan Byrne, as the legal representative of John Robertson, Jr., enters six hundred and forty acres of land, by virtue of a New Madrid certificate issued by the recorder of land titles for the territory of Missouri, and dated St. Louis, September, 1818, and numbered 448, in the following manner, to wit: to include section No. thirty-two, in township No. fifty, north of the base line, range No. fifteen west of the fifth rincipal meridian.' And here the evidence of the defendants closed.

On this state of facts, the defendant's counsel moved the Court to instruct the jury, that the entry or New Madrid location, made by Morgan Byrne in his own name, is proof of a legal title to the land; and is a sufficient defence against all persons who do not show a better legal title to the same land. That if the jury believe the patent, a copy of which has been given in evidence by plaintiff, issued on the location made by Morgan Byrne, the patent is not such title as will avail against the location.

The revised code of Missouri of 1825, which was in force when this action was commenced, provides that a New Madrid location shall be a title on which to sustain an action of ejectment against any person not having a better title.

The defendant's show, by deeds of conveyance from John Robertson, Jr., that Morgan Byrne had a full and clear title to the 640 acres of land near New Madrid; that he relinquished said land, under the act of Congress of 1815, to the United States, and located the section of land now in controversy. He being the owner of the land, as the legal representative of John Robertson, Jr., was the only person who could relinquish it to the United States. By virtue of this relinquishment, and in consideration of its having been made, he received the certificate which authorised him to locate the same number of acres of any part of the public land which had been offered for sale.

It appears that under the law of 1815, the New Madrid claimant had to show a confirmation of the land claimed by him on the public records in the name of the first claimant, and to show a derivative title to himself, before he was permitted to relinquish it to the government. And in the present instance, John Robertson, Jr., being the original confirmee of the title, the record was produced establishing the fact; and Byrne then proved, by an exhibition of his deeds, that Robertson had parted with all his right in the premises, and that he was his legal representative. It was in this capacity that the relinquishment was made, and the certificate of location was issued. And he made the location of the land in controversy in the same character.

In this view of the case there can be no doubt that Byrne or his assignee has the title to the land. And that there is possession under this title is shown by the fact that the action of ejectment was commenced by the lessor of the plaintiff, to obtain the possession.

It appears that the patent was issued to John Robertson, Jr., improperly; as in 1809 he conveyed all his interest in the land relinquished. Before the emanation of the patent, he had not a shadow of title, either equitable or legal, to the land in dispute. And the patent must have been fraudulently obtained by him, on the presentation of the certificate of location made by Byrne. The evidence on this point is too clear to be controverted. It is established by deeds executed in the most solemn form, and by records which contain the highest verity. The inference of the fraud is as irresistible as are the facts from which it is inferred.

The proof of Byrne's title is irrefragable; and it is equally clear that Robertson had no title to the land, until he fraudulently obtained the patent. Having no shadow of right, he could obtain the patent in his own name by no other than fraudulent means. And no Court which could feel itself authorised to look behind the patent, could hesitate to pronounce the title of Byrne valid against the patentee, who has sought to cover his fraud by this legal instrument.

And the question here arises, whether, under the Missouri statute, the Circuit Court ought not to have instructed the jury, that under the deeds and records given in evidence, Byrne's was the better title. I cannot doubt that this instruction should have been given.

The statute makes the location a legal title for the purposes of the action of ejectment. And if it be a good title, on which to bring an ejectment, it must be equally effectual in the defence of such an action. This title, the statute declares, shall prevail against any person who has not the better title.

And what kind of a title is this better title. Surely it is a title that under the facts and circumstances of the case ought to prevail against that to which it is opposed.

It is urged that this better title must mean a better title than others of the same class; but that it can never be considered a better title against a patent. And why may it not be considered a better title against the patent?

The title set up in the defence derives its validity from laws of the United States, as entirely as the patent. The question then is, which is the better title of the two, both originating from the same sovereignty? The statute of Missouri does nothing more than declare that a Court of law may do in an action of ejectment, what no one doubts would be competent for a Court of chancery to do.

And may not the legislature do this? It does not originate a title, under any pretence of state sovereignty, which is to operate against a patent from the United States; but it gives to a Court of law, powers in the action of ejectment, which in some other states are exercised only by a Court of chancery. This has always been the rule in Pennsylvania, and in other states which have no Court of chancery.

Technically, a location is an inchoate legal title. But, out of this class of titles a new rule of equity grew up, by the practice of the Courts of Kentucky. And this rule is not in conformity with the long established principles of a Court of equity.

As between conflicting entries, the doctrine of notice is utterly discarded. The entry must be a legal one, by embracing all the substantial requisites of the law, or a subsequent entry may be made on the same land, though the locator have full knowledge of the first entry.

This forms an anomaly in the history of equity jurisdiction. It authorizes a Court of equity to give effect to that which is, in itself, strictly a legal right.

Principles growing out of this peculiar system have been acted on from necessity, by the Courts of the United States; but they have not been regarded as appropriate to an equitable jurisdiction in other cases.

Had the Courts of Kentucky acted upon entries as legal titles, whether under their own rules, or by virtue of statutory provisions, the Courts of the United States would have adopted the same mode of proceeding. In the state of Tennessee, a junior patent under the first entry will overreach an elder patent, under a junior conflicting entry. This, in Kentucky, would be the exercise of an equitable jurisdiction. In Missouri, under the statute, it would be examinable at law.

It is said, the patent merges the location. This, under the Kentucky system is true; but, where the patent has been issued, through a mistake or fraud, to an individual who was not entitled to it; a Court of equity will control the right of the patentee, by compelling him to convey to the person who has the better right.

And why may not a Court of law protect this better right. The right may be investigated as fully, and considering the nature of the rights under the Missouri statute, as safely in a Court of law as in a Court of chancery. But this, with the Court, is not a question of policy. It is a rule of evidence and of property adopted by the state of Missouri, and our whole course of adjudications requires us to regard it. There is therefore no more violation of principle in examining the title of Byrne at law, then in equity. The result is substantially the same in both modes; as the title of Byrne must be protected from the fraud by which it has been attempted to be overreached and subverted.

Judging from the evidence of this case, I have never seen a grosser act of fraud than the obtainment of this patent by Robertson; eleven years after he had conveyed every vestige of right in the land which was relinquished as the consideration to the United States for the location in controversy.

It was stated in the argument that Byrne made the location, but took no step subsequently to perfect the title. That Robertson had the survey executed and returned. This is an argument against the record. By the certificate which authorized the location it was required to be located on land, 'the sale of which is authorized by law.' And no land is authorized by law to be sold, except such as has been surveyed by the officers of the United States. The location in question was made on a section designated by its number, township, and range, and which of course had been surveyed.

As Robertson's name was inserted in the location agreeably to the forms used, he being the original claimant on record, of the New Madrid tract relinquished, he was enabled to practise an imposition and fraud on the commissioner of the general land office, and obtain the patent.

It is a well settled principle, that fraud may be investigated as well at law as in chancery; and I am strongly inclined to think if this fraud had been brought before the Court and jury, independent of the statute of Missouri, they must have determined that it vitiated the patent.

Can any one look at these two titles, that of Byrne having been obtained by a fair purchase, relinquishment, and location; and that of Robertson by fraudulently obtaining the patent, and hesitate in deciding which is the better title. And it appears to me that the statute of Missouri in providing that such a location shall be a title, on which an action of ejectment may be sustained, covers the whole case; and enables the Court and jury to determine which is the better title.

In the case of Sims' lessee vs. Irvine, 3 Dallas 457, this Court say, 'in Pennsylvania, where the consideration has been paid, a survey, though unaccompanied by a patent gives a legal right of entry, which is sufficient in ejectment.' Why they have been adjudged to give such right; whether from a defect of chancery powers, or for other reasons of policy or justice is not now material. The right once having become an established legal right, and having incorporated itself, as such, with property and tenures; it remains a legal right notwithstanding any new distribution of judicial powers, and must be regarded by the common law Courts of the United States, in Pennsylvania, as a rule of decision.

And in the case of Ross vs. Doe on the demise of Barland et al. 1 Peters, 664, this Court say, 'for the plaintiff it is argued that the state Court erred in deciding that the elder grant should not prevail in the action of ejectment.'

The question in this case was between a claimant under a patent of the United States, and one who claimed the same land under a donation certificate, given by commissioners. The question was identically the same, in principle, as in the case under consideration.

And this Court decided, 'where by the established practice of Courts in particular states, the Courts in actions of ejectment look beyond the grant, and examine the progressive stages of the title from its incipient state until its consummation; such a practice will form the law of cases decided under the same, in these states: and the Supreme Court of the United States regard those rules of decision in cases brought up from such states, provided that in so doing, they do not suffer the provisions of any statute of the United States to be violated. Under the act of Congress, of March 3, 1803, such lands only were authorized to be offered for sale as had not been appropriated by the previous sections of the law, and certificates granted by the commissioners in pursuance thereof. A right, therefore, to a particular tract of land derived from a donation certificate, given under that law, is superior to the title of any one who purchased the same land at the public sales.' This was the rule in ejectment cases in the State of Mississippi, from whence this cause was brought. Dallas was made in 1799; and the rule laid down in these cases has not been questioned by any other adjudication of this Court. Other decisions might be referred to of the same import, but it is deemed to be unnecessary.

I will, however, notice a case decided at the present term, which, in my judgment, in principle, has a strong application to the question under consideration. By a statute of Kentucky it is provided that 'any person having both the legal title, and possession of land, may institute a suit against any other person setting up a claim thereto; and if the complainant shall be able to establish his title to such land, the defendant shall be decreed to release his claim thereto, and to pay the complainant his costs,' &c. Now here is a statute which creates an equity, or rule of proceeding in a Court of chancery; which, in the case of Clark vs. Smith has been very properly recognized as a rule of proceeding in this Court.

Now the statute of Missouri created a legal right, or rule of proceeding in the action of ejectment. And if the Kentucky statute can give the rule of proceeding to this Court, in chancery, why may not the Missouri statute do the same thing at law.

In the state of Illinois, by statute, a certificate of the register of the land office of the United States of an entry of land, is made a good title on which to sustain an action of ejectment: and the Supreme Court of that state has long since settled the rule, that such a title may be held good against a patent wrongfully or fraudulently obtained. In the state of Alabama there is a similar law, and it has received, by the Supreme Court of that state, the same construction.

The idea, that if a state can pass a law authorising an action of ejectment on a certificate of the register, and that if this certificate, under any circumstances should be held the better title, against a patent wrongfully issued would endanger the public lands; is so novel and so unfounded that I must notice it. Had not such an argument been advanced, I should have supposed that two things so wholly disconnected as this premiss and conclusion could never be associated in the mind of any one.

How is the public lands endangered by the establishment of this rule?

The certificate as well as the patent emanate from the federal government. Now if the patent through mistake or fraud has been issued wrongfully, no one doubts that a Court of chancery may protect the right, in such a case, of the certificate holder. The state of Illinois says, this may be done at law, and this is the whole matter. If there be danger to the public lands in this, it is not only modern discovery: but to guard effectually against the danger, the states must abolish their Courts of chancery, or restrict them under all circumstances from questioning the right of the patentee. If the state Courts cannot try these cases between their own citizens and under their own laws, where are they to be tried? All who claim under a patent are entitled to the same rights as the patentee.

Mr. Justice M'KINLEY concurred in opinion with Mr. Justice M'LEAN.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Missouri, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.

No. 192. Office of the recorder of land titles.

St. Louis, March 9, 1820.

I certify, that in pursuance of the act of Congress, passed the 17th day of February, 1815, a location certificate, No. 448, issued from this office in favour of John Roberson, Jr., or his legal representatives, for six hundred and forty acres of land; that a location has been made, as appears by the plat of survey herewith, and that the said John Robertson, Jr., or his legal representatives, is entitled to a patent for the said tract, containing, according to said location, six hundred and forty acres of land, being section No. 32, in township No. 50, north of base line-range No. 15 west of 5th principal meridian. No. of survey, 2,810.

FREDERICK BATES.

Township No. 50, North of the Base line, Range No. 15, West fifth principal meridian.

No. 448.

John Robertson, Jr.

Section 32.

Surveyors' Office, St. Louis.

January 15, 1820.

I certify that section No. 32, in township No. 50, north of the base line, range No. 15, west of the 5th principal meridian, was located on the 8th day of October, 1818, for John Roberson, Jr., or his legal representatives, by virtue of No. 448, dated September, 1818, issued by the recorder of land titles for the Missouri territory, to said John Robertson, Jr., or his legal representatives, for six hundred and forty acres of land, in conformity with the provisions of the act of Congress of the 17th February, 1815, for the relief of sufferers by earthquakes in the late county of New Madrid.

WM. RECTOR.

To Frederick Bates, Esq., Recorder of land titles for the Missouri Territory.

title: Bagnell v. Broderick/Dissent McLean


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 And do not call him names, As 'Slimy skin,' or 'Polly-wog,' Or likewise 'Ugly James,' Or 'Gap-a-grin,' or 'Toad-gone-wrong,' Or 'Bill Bandy-knees': The Bad Child's Book Of Beasts pg 52.png The Frog is justly sensitive To epithets like these.