F 912 
 .N7 M88 
 Copy 1 
 
 "THE SPOILERS'' 
 
 By WILLIAM W. MORROW 
 
 REPRINTED FROM THE CALIFORNIA LAW REVIEW 
 OF JANUARY, 1916 
 

 Glfi 
 Author 
 
 C" 
 
 
. California Law Review 
 
 ^ Volume IV. JANUARY. 1916 Number 2 
 
 "The Spoilers"* 
 
 There is never a law of God or man runs north of Fifty-three. 
 ■ — Kipling. 
 
 IN DECEMBER, 1905, Harper & Brothers of New York pub- 
 lished a book of fiction entitled "The Spoilers." The author was 
 Rex Beach. The scene of the story was in Alaska, mainly at 
 Nome; and it covers a period of about three months from July 15, 
 1900, to October 15, 1900. 
 
 The thread of the story carries a thrilling romance of personal 
 adventure on the part of the principal characters in connection with 
 certain legal proceedings in the District Court at Nome and in the 
 United States Circuit Court of Appeals in San Francisco. The ro- 
 mance is, of course, untrue ; and the legal proceedings referred to in 
 the story were made to conform to the general course of the ro- 
 mance. 
 
 Mr. Beach was in Nome during the period covered by his story 
 and was familiar with the actual occurrences which formed its 
 groundwork. This appears from his articles entitled "The Looting 
 of Alaska," in Appleton's Booklovers' Magazine for January, Feb- 
 ruary, March, April and May, 1906. The characters in the story 
 are not real characters and were not so intended. Some of them 
 may be identified, but only in a general way, while others have no 
 originals to which reference can be made. They are painted in 
 high colors, as are the scenes in which they move as actors. 
 
 Beach's literary art is something of the style of Kipling's as we 
 find it in some of his stories. Its purpose is not to furnish elaborate 
 situations with accuracy of details, but to produce striking figures 
 and pictures which are designed to give stirring impressions of 
 prevailing conditions. It corresponds to the school of the modern 
 
 * Address delivered before the Law Association of the School of 
 Jurisprudence, at the University of California, November 19, 1915. 
 
90 CALIFORNIA LAW REVIEW 
 
 impressionist in the art of painting; and the art in both is criti- 
 cised because it does not convey accurate information concerning 
 details. On the other hand, there are those who profess to see in 
 the high colors and the startling and vivid impressions an advanced 
 stage of the art. This may be so. If it is, the public is not far 
 wrong in its estimate of this book. For a year or more after its 
 publication, it was one of five books most called for at the libraries ; 
 and during the same time it was one of five of the best-sellers on the 
 book-seller's counter. And I am informed that Harper & Brothers 
 have published a number of editions of the book aggregating over 
 400,000 copies, and that A. L. Burt & Company published a cheaper 
 edition of about the same number of copies. The story has been 
 produced as a drama and has met with favor; and as a moving 
 picture show it is said to be one of the most popular on the reels. 
 
 The story is doubtless attractive to the public because it deals 
 with thrilling adventures accompanied by physical force in the 
 midst of elemental conditions, wherein superior force and skill win, 
 but only by a thrilling, narrow margin. As stated by one critic, 
 "It is a frank glorification of brawn and bone; it is dedicated to 
 file physical appetites and passions ; it sings the praises of the sav- 
 age life." 
 
 The theme of the story is : "There is never a law of God or man 
 runs north of Fifty-three." These two lines from the "Rhyme of 
 the Three Sealers," by Kipling, written in 1896, was his anathema 
 hurled at the lawless and ruthless slaughter of that magnificent seal 
 herd in the Bering Sea, which in 1867, when the United States ac- 
 quired Alaska and its islands, numbered between five and seven 
 millions, but which in 1896 had been reduced to about three hun- 
 dred thousand. This lawlessness — termed, in the elegant and eu- 
 phonious language of diplomacy, pelagic sealing — was, however, 
 the result of the miserable failure on the part of international law 
 to protect the seal herd in the open sea; while Beach's anathema 
 was directed against the disgraceful failure of a court of justice to 
 administer the principles and procedure of established municipal 
 law in the protection of private property. We know that interna- 
 tional law has not the commanding force we once supposed it had; 
 but we do not know why municipal law should not be enforced, 
 especially when it has been clearly and authoritatively stated as it 
 was in this case. 
 
 To fully understand the character of the court proceedings at 
 Nome referred to in "The Spoilers," it is necessary to state in 
 
"THE SPOILERS" 91 
 
 limine that one Alexander McKenzie, having acquired the so-called 
 "jumpers' " titles to certain placer gold mines of almost fabulous 
 wealth on Anvil Creek, near Nome, sought by the forms of legal 
 procedure, to eject the owners and obtain possession of the mines 
 and the gold therein contained because of the supposed alienage of 
 the original locators. Another objection to these locations was 
 that some of the original locators had located more than one claim 
 for a single individual on the same creek. As the alleged alienage 
 of these locators is a prominent feature of the controversy we are 
 about to deal with, it will be well to understand who these aliens 
 were, how they came to be in that locality, and whether they were 
 in fact excluded from locating mining claims. 
 
 The late Dr. Sheldon Jackson, the energetic and faithful general 
 agent of education in Alaska for twenty-five years under the federal 
 government, undertook in 1891 to introduce domestic reindeer into 
 Alaska for the preservation of the Eskimos, whose food supply was 
 rapidly disappearing by reason of the active and aggressive whaling 
 and fishing industries of the outsiders prosecuted in the Bering Sea 
 and on the shores of Alaska. These reindeer Dr. Jackson had 
 brought over from Siberia. 
 
 The project was fairly successful and several reindeer stations 
 were established on the western shore of Alaska; but the Eskimos 
 were not trained in the care and use of the reindeer and the enter- 
 prise lacked efficiency on that account. Dr. Jackson accordingly 
 sent to Lapland in 1894 for skilled reindeer herders to come to 
 Alaska and teach the Eskimos how to manage and care for the 
 reindeer herds. He secured seven Laplanders, who brought their 
 wives and children with them, and they took up their abode at the 
 reindeer stations. The principal station was that of Teller, at Port 
 Clarence, about fifty or sixty miles north of Nome. 
 
 In the fall of 1897 reports came from the Arctic that the whal- 
 ing fleet had met with disaster; that two vessels had been crushed 
 in the ice and eight vessels had been caught and were ice-bound in 
 the Arctic Ocean near Point Barrow; and that two hundred and 
 seventy-five men, composing the officers and crew of the fleet, were 
 in dire distress and would perish from hunger unless relief could 
 reach them early in the spring. It was impossible to reach them 
 by sea in that time. 
 
 Lieutenants Jarvis and Bertholf and Doctor Call, of the Reve- 
 nue-Cutter Service, volunteered to conduct an expedition overland 
 for the relief of the imperiled whalers. The oflfer was accepted by 
 
92 CALIFORNIA LAW REVIEW 
 
 the general government, and the members of the expedition were 
 landed at Cape Vancouver in Bering Sea, south of the mouth of 
 the Yukon River, on December 16, 1897. From this point they set 
 out on their lonesome and dreary journey over snow and ice 
 through an Arctic night for Point Barrow, distant more than two 
 thousand miles to the north. 
 
 They commenced the transportation overland at Cape Vancou- 
 ver with dog teams; but as they proceeded up the coast, they 
 added reindeer and Laplander drivers to their equipment from their 
 various stations along the coast until they had four hundred and 
 forty-eight reindeer with the necessary number of herders and 
 drivers. They then pushed on through the storms and bitter cold 
 of an Arctic winter until they reached Point Barrow on March 29, 
 1898, just in time to save the lives of the ice-imperiled sailors 
 whose food supply was about exhausted and who were on the verge 
 of sickness, starvation and death. Fresh meat from the reindeer 
 herd was supplied at once and continued during the time they re- 
 rhained at that point, and they were otherwise cared for until the 
 arrival of the revenue cutter Bear on July 28, 1898 — a period of 
 four months. A large number of the reindeer herd had by that 
 time been killed for food. 
 
 The purpose of the expedition having been fulfilled, the reindeer 
 herders and drivers were returned to their stations along the coast 
 of Alaska during the month of August, 1898; and many of the 
 whalers were, by their own request, left in that region, only ninety- 
 one of the original two hundred and seventy-five returning to the 
 Pacific Coast. Many of these whalers were Scandinavians, and, 
 with some of the Laplanders, they drifted into the mining region 
 and, after the discovery of gold on Anvil Creek in September, 1898, 
 they proceeded to locate mining claims in that locality. 
 
 There was also another expedition that contributed adventurers 
 to the new mining section. About the same time the news was re- 
 ceived of the disaster to the whaling fleet at Point Barrow, came a 
 report that American miners in the Klondyke country were in dan- 
 ger of starvation and unless relief was sent to them at once they 
 would certainly perish. This called for another expedition through 
 ice and snow, over the mountain passes into the Yukon Valley ; and 
 Congress promptly appropriated the necessary funds to send Dr. 
 Jackson to Lapland to secure a large number of reindeer with their 
 drivers to conduct the relief expedition. 
 
 Dr. Jackson reached Lapland in January, 1898, purchased five 
 
"THE SPOILERS" 93 
 
 hundred and twenty-six trained reindeer, and gathered together 
 sixty-eight drivers (Norwegians and Laplanders) with their fami- 
 lies, and sailed for New York in February. At New York special 
 trains met the expedition and carried it across the continent to 
 Seattle. It was shipped by vessel to the headwaters of the Lynn 
 Canal, where it was landed and, after some delay, the journey was 
 commenced over the mountain passes in the direction of the head- 
 waters of the Yukon River. There the expedition was to have pro- 
 ceeded down the Yukon to the relief of the supposed straving 
 miners, for whom abundant supplies were carried by the expedition. 
 
 This expedition was a failure. Nearly three hundred of the 
 reindeer died of starvation after reaching the Alaska coast because 
 of the failure of the government to provide suitable arrangements 
 for feeding the herd while it was being driven from the seacoast 
 to the moss fields at the head of Chilkat River, fifty miles distant. 
 The remaining two hundred, weakened by starvation, were driven 
 to the Yukon Valley by easy stages, and there the expedition was 
 abandoned, but not before it was learned that there were no starv- 
 ing miners in the Yukon Valley. 
 
 The Scandinavians and Laplanders who had been brought over 
 were distributed among the reindeer stations, to be there employed 
 to teach the natives how to care for the reindeer. A number of 
 these were permitted to retire from the government service, and 
 they naturally drifted into the mining se'ction. 
 
 The Klondyke placers on the upper Yukon within Cana- 
 dian territory were discovered in 1896. This remote region became 
 at once a territory of most intense interest throughout the civilized 
 world, and as adventurers congregated at this point, prospectors 
 naturally drifted down the Yukon River into the American territory 
 of Alaska hunting for new gold fields which were said to exist in 
 that region. 
 
 In March, 1898, some gold was found in the gravel on Melsing 
 Creek, and a little later placers were found on an adjacent stream 
 named Ophir Creek, both tributaries of the Niukluk River, and the 
 latter a tributary of Fish River, emptying into Golofnin Bay. On 
 the bank of the Niukluk River, at the point of its junction wnth 
 Melsing Creek, was located Council City. 
 
 Three individuals, who will figure somewhat conspicuously in 
 the proceedings with which we are to deal, met at this place by 
 chance in August, 1898. They were John Brynteson, Erick O. 
 Lindblom and Jafet Lindeberg. 
 
94 CALIFORNIA LAW REVIEW 
 
 Brynteson was a native of Sweden, but had been naturalized as 
 a citizen of the United States in the State of Michigan in 1896. He 
 had been a coal and iron miner in Michigan before going to Al- 
 aska, where he went in the spring of 1898 in search for coal. Ar- 
 riving at Saint Michaels, he heard of the gold discoveries on Ophir 
 Creek near Council City, and he immediately departed for that 
 place. 
 
 LindbJom was also a native of Sweden, and had also been nat- 
 uralized as a citizen of the United States in the State of Montana 
 in 1894. He had been a tailor and for years followed his trade in 
 San Francisco. In the spring of 1898 he shipped on board of the 
 bark Alaska as a sailor and was carried north to Bering Sea. At 
 Port Clarence he left the vessel and found his way down the coast 
 to Golofnin Bay, and thence up Fish River and its tributary Niuk- 
 luk to Council City. 
 
 Lindeberg was a native of Norway. He came to this country 
 with Dr. Jackson in the spring of 1898 as a reindeer herder. He 
 was directed to Saint Michaels where he was released from his em- 
 ployment, and he thereupon proceeded to Council City where he 
 met Br}^nteson and Lindblom. These three came together by 
 chance, as I said before, in August, 1898. 
 
 They prospected some in that district; but being dissatisfied 
 with the locality, they formed what they termed a prospecting com- 
 panionship, the purpose of which was to prospect over a wider 
 range of territory. They returned to Golofnin Bay and, taking a 
 boat, proceeded up the coast to the mouth of Snake River and up 
 this river to a tributary, afterwards named Anvil Creek from an 
 anvil shaped rock standing on the summit of a mountain near by. 
 Here, on the 22d of September, 1898, these three inexperienced 
 prospectors made the discovery of gold that was destined to make 
 that region famous throughout the world. Their discovery does 
 not appear to have been the first in that locality, but it was the 
 first that was followed up by a location and led to results ; and the 
 association of these three prospectors afterwards became known as 
 the Pioneer Mining Company. 
 
 On the day of their discovery, they located a placer mining 
 claim of about twenty acres including the point of discovery and 
 designated the claim as "Discovery Claim." In addition to this, 
 each of them staked a separate claim in his own name on the creek. 
 This locating of an additional claim by these discoverers was un- 
 derstood to be the local custom in Alaska as a reward for making 
 
"THE SPOILERS" 95 
 
 the discovery, and it was not prohibited by the laws of the United 
 States. 
 
 Lindeberg was not then a citizen of the United States ; but he 
 had, on July 22, 1898, declared his intention to become a citizen of 
 the United States before the Commissioner at Saint Michaels. This 
 declaration of Lindeberg was ineffective, as the laws of the United 
 States require that such a declaration shall be made before a court 
 of record and the Commissioner's court was not a court of record 
 for that purpose. 
 
 On the 5th of June, 1899, Robert Chipps, a citizen of the 
 United States, claimed to have located the same ground; in other 
 words, he "jumped" the claim. This was nine months after the 
 "Discovery" location. It subsequently appeared that Chipps made 
 the location over the prior location, because he understood that 
 Brynteson, Lindeblom and Lindeberg were aliens and that their 
 location was void by reason of that fact and that the ground was 
 therefore open to location, occupation and purchase by a citizen of 
 the United States. The fact was that only Lindeberg was an alien 
 at that time but he subsequently declared his intention to become a 
 citizen before a court of competent jurisdiction. 
 
 Section 2319 of the Revised Statutes provides that all valuable 
 mineral deposits in land belonging to the United States are free and 
 open to exploration and purchase, and the lands in which they are 
 found, to occupation and purchase by citizens of the United States 
 and those who have declared their intention to become such. This 
 limitation as to citizenship of the locator does not, however, come 
 into play until an application is made to the government for a pat- 
 ent. Prior to that time the alienage of an original locator cannot be 
 brought into question by a subsequent and contesting private lo- 
 cator — only the government can raise that question.^ Besides, prior 
 to the application for a patent the applicant may become a citizen 
 of the United States or declare his intention to become such, and he 
 thereby becomes entitled to his patent with precisely the same right 
 as though he were a citizen of the United States. 
 
 Had this location by Brynteson, Lindblom and Lindeberg been 
 the only location in which the alienage of the locator was involved, 
 
 1 Billings V. Aspen Mining & Smelting Co. (1892), 51 Fed. 338, 52 
 Fed. 250; Lone Jack Mining Co. v. Megginson (1897). 82 Fed. 89; 
 Manuel v. Wulfif (1894), 152^1. S. 505, 511, 38 L. Ed. 532. 14 Sup. Ct. 
 Rep. 651; McKinley Creek Mining Co. v. Alaska United Mining Co. 
 (1902), 183 U. S. 563, 571, 46 L. Ed. 331, 22 Sup. Ct. Rep. 84. 
 
96 CALIFORNIA LAW REVIEW 
 
 it is not likely that there would have been any public commotion 
 upon the subject, and the right of Chipps to have made the subse- 
 quent location would have been determined adversely to him and 
 no public interest taken in the result. But the situation respecting 
 aliens in the vicinity of Nome at that time and their right to locate 
 mining claims, although not an open question under the law, was 
 agitated as a serious question by those who came on the ground 
 after 1898. 
 
 On October 18, 1898, at a miners' meeting, the Cape Nome 
 Mining District was formed and Dr. A. N. Kittleson, who had been 
 in charge of the government reindeer station at Port Clarence, was 
 elected recorder. The mining claims that had been located were 
 thereupon filed for record and duly recorded. 
 
 When the discovery of gold on Anvil Creek was made on Sep- 
 tember 22, 1898, the information was passed through channels that 
 brought to that locality, from near-by points, some of the people I 
 have just mentioned; that is to say, the first prospectors on the 
 ground were the Swedes, Norwegians and Laplanders in the imme- 
 diate vicinity ; and they proceeded to cover that creek and its 
 benches and other creeks and benches in that neighborhood with 
 their locations. It is said they staked the whole country. This, if 
 so, was the abuse of a privilege which it was supposed was suffi- 
 ciently limited and restrained by the requirement that the location 
 of a mining claim is based upon the discovery of mineral in a pay- 
 ing quantity within the location, and the further requirement that 
 the location is maintained by the actual possession of the locator 
 and the expenditure by him of one hundred dollars' worth of work 
 upon the claim each year. These wholesale locations, made in 
 every direction without discovery and without maintaining a bona 
 fide possession, and without the expenditure of labor in the de- 
 velopment of the claims, did not, of course, comply with these re- 
 quirements ; but the original locations on Anvil Creek, made after 
 discovery and held by actual possession and required expenditures, 
 did comply with the law. 
 
 Anvil Creek is a short creek of about six miles in length; but 
 only about three and one-half miles of the creek appeared from 
 prospecting to have "pay gravel." The claims as located were 
 usually about 660 feet in width by 1320 feet in length, containing 
 approximately twenty acres — the limit provided by law. Four of 
 such claims would extend a mile along the length of the creek, and 
 twelve claims would about cover all that part of the creek of any 
 
'•THE SPOILERS" 97 
 
 apparent value as mining ground. A few locators could, therefore,' 
 legally appropriate what appeared to be the entire valuable gravel 
 deposits ; but these deposits were enormously rich. 
 
 It therefore happened that, when news of the great discovery 
 had reached the outside world, prospectors and others, in the spring 
 of 1899, made a rush for the new gold field from Dawson and the 
 upper Yukon and from the Pacific Coast ; but when they arrived at 
 Nome, they found they had been forestalled by locations in the 
 manner stated. The newcomers became exasperated, or thought 
 they were, over the situation, contending that aliens had no right 
 to locate a mining claim on the public domain, and, further, that 
 in no event could even a citizen of the United States locate more 
 than one claim on the same creek. 
 
 These objections to the original, prior locations on Anvil Creek 
 had no foundation in law or fact. In the act of Congress pro- 
 viding a civil government for Alaska, approved May 17, 1884,- it 
 was provided that the general laws of the State of Oregon then in 
 force were declared to be the laws of said district (Alaska), so 
 far as the same might be applicable and not in conflict with the pro- 
 visions of the act or the laws of the United States. 
 
 The general laws of Oregon provided that : 
 
 "Any alien may acquire and hold lands, or any right there- 
 to, or interest therein, by purchase, devise, or descent, and he 
 may convey, mortgage, and devise* the same, and if he shall die 
 intestate, the same shall descend to his heirs; and in all cases 
 such lands shall be held, conveyed, mortgaged, or devised, or 
 shall descend in like manner and with like effect, as if such 
 alien were a native citizen of this state or of the United States ; 
 and any corporation incorporated under the laws of any other 
 state in the United States, or of any foreign country, not pro- 
 hibited by the constitution or laws of this state from carrying 
 on business in this state, may acquire, hold, use, and dispose of, 
 in the corporate name, all real estate necessary or convenient 
 to carry into efifect the object of the incorporation and the 
 transaction of its business, and also any interest in real estate 
 by mortgage or otherwise, as security for moneys due to or 
 loans made by such corporation." ^ 
 
 It was provided further, that: 
 
 "The title to any lands heretofore conveyed shall not be 
 questioned, nor in any manner affected, by reason of the alien- 
 
 2 23 Stat, at L. 24. 
 
 3 Lord's Oregon Laws, § 7172. 
 
98 CALIFORNIA LAW REVIEW 
 
 age of any person from or through whom such title may have 
 been derived." * 
 
 These sections of the Oregon laws were not in conflict with any 
 act of Congress ; on the contrary, they were in conformity with such 
 laws. 
 
 By the Act of Congress approved March 2, 1897/ it was pro- 
 vided that no alien or person who is not a citizen of the United 
 States, or who has not declared his intention to become such, should 
 acquire title to or own any land in any of the territories of the 
 United States, except as in the act provided. The act then pro- 
 vided that it was not to apply to any alien who should become a 
 bona fide resident of the United States, and any alien who should 
 become a bona fide resident of the United States, or who should 
 have declared his intention to become a citizen of the United States, 
 should have the right to acquire and hold lands in either of the ter- 
 ritories of the United States upon the same terms as citizens of the 
 United States. It was further provided that the act should not be 
 construed to prevent any persons, not citizens of the United States, 
 from acquiring lots or parcels of lands in any incorporated or 
 platted city or town or village, or in any mine or mining claim, in 
 any of the territories of the United States. Furthermore, there was 
 no law of the United States prohibiting any locator of a mining 
 claim from locating more than one claim. The limitations I have 
 mentioned were supposed to place a sufficient restraint on the exer- 
 cise of this privilege. 
 
 But, notwithstanding this state of the law in Alaska, it was con- 
 tended, as before stated, by the late-comers into the Nome region, 
 that all prior locations were invalid ; and for the purpose of having 
 this declared to be the local law at Nome, a miners' meeting was 
 called at Nome for July 10, 1899. For this meeting there had been 
 prepared in advance a resolution declaring all existing locations 
 void. 
 
 Meanwhile, men had been stationed upon Anvil Mountain, 
 about three and a half miles from Nome, with instructions that 
 upon the passing of the resolution a bonfire should be started in 
 Nome, at which signal the men were to hurr}' down from the 
 mountain and obtain possession of the claims on Anvil Creek; 
 thus forestalling the rush that would probably follow from Nome. 
 
 ■♦ Lord's Oregon Laws, § 7173. 
 
 6 29 Stat, at L. 618, U. S. Comp. Stat. § 3490 ft. 
 
"THE SPOILERS" 99 
 
 A rumor of this intended action on the part of the miners' 
 meeting had come to Dr. Kittleson, the recorder of the district, who 
 communicated with the mihtary authorities at Saint Michaels whose 
 duty it was to preserve the status quo until a court was estab- 
 lished ; and Lieutenant Spaulding and two or three men were 
 directed to attend the meeting, which they did, and took places on 
 the platform. When the resolution was introduced declaring all 
 the locations in the district void and the land open for relocation, 
 Lieutenant Spaulding ordered that the resolution be withdrawn 
 within two minutes, stating that he considered it not for the good 
 of the community and if it were not withdrawn he would clear the 
 hall. There was some hesitation on the part of the meeting to 
 comply with this order; but at the end of the tw'o minutes the 
 Lieutenant ordered his men to clear the hall, and it was done. 
 
 It is evident that, whatever may have been the military qualifi- 
 cations of this officer for "preparedness," he was an accomplished 
 parliamentarian. Translated into parliamentary language, he knew 
 that a motion to adjourn was always in order. He made the mo- 
 tion himself, put it, and declared it carried and the meeting ad- 
 journed; or, in the crisp but expressive language of the Congres- 
 sional Record, "the committee arose and the house adjourned." 
 
 I mention this incident because it has been denounced in some 
 quarters as a military usurpation and tyranny. It was the exercise 
 of a little common sense by the officep in an emergency and clearly 
 for the purpose of preventing rioting and bloodshed, and it did so. 
 
 But the "jumping" of claims continued preparatory to other 
 proceedings against these original locators. The immediate strain 
 was, however, somewhat relieved in a very unexpected manner: it 
 was accidentally discovered that the beach sands on the shore of 
 the sea adjacent to Nome were rich with gold and it was found 
 that good wages could be made by the use of the primitive rocker 
 in washing the gold out of the sand. Many of the late-comers ac- 
 cordingly turned their attention to this new and extraordinary gold 
 field. But the Anvil Creek locations were not forgotten ; they were 
 too rich to be abandoned to aliens without a struggle. 
 
 About this time, Mr. Charles D. Lane, of California, arrived at 
 Nome. He was a well known citizen. He had been in Alaska 
 before and was acquainted with the country. He was then a man 
 of wealth and business standing, having been a part owner with 
 Mr. Hayward and Mr. Hobart in the famous Utica mine at Angels, 
 in Calaveras County in this state. He was a man of great energy 
 
lOO CALIFORNIA LAW REVIEW 
 
 and practical ability and had been interested in many mining and 
 industrial enterprises in this state and elsewhere. He was noted for 
 his fair dealings in all his business enterprises, and in Nome he 
 continued to maintain that reputation. 
 
 As an experienced and practical miner, Mr. Lane found that 
 Anvil Creek gave promise of yielding great wealth with the proper 
 equipment for carrying on placer mining on a large scale. He ac- 
 cordingly negotiated with some of the original locators, three of 
 whom were Laplanders, for their possessory rights, and succeeded 
 in securing four claims for which he is reported to have paid about 
 $300,000. He also located and secured possessory rights in other 
 localities, and proceeded to work these claims with modern appli- 
 ances. He established a line of steamers from San Francisco to 
 Nome by the way of Seattle; he erected warehouses and other 
 buildings in Nome, and built and equipped a railroad from Nome to 
 the mines. All these enterprises he conveyed to a corporation, of 
 which he was the president and principal stockholder, and named 
 his corporation the Wild Goose Mining and Trading Company. 
 Rather a curious but not an inappropriate name for an Alaska cor- 
 poration engaged in mining. Fortunately, the chase of the wild 
 goose in this case turned out to be a financial success. 
 
 But this corporation and its mining property on Anvil Creek, 
 together with the mining property of the Pioneer Company, on the 
 same creek, became the storm center of the bitter controversy then 
 being waged against the original locators on Anvil Creek and which 
 is described by Beach in "The Spoilers" and in "The Looting of 
 Alaska." The controversy was transferred to Washington in an 
 effort to invalidate these original locations by congressional legis- 
 lation. 
 
 Mr. Hubbard, of the law firm of Hubbard, Beeman & Hume, 
 located at Nome, had charge of the so-called "jumpers' " locations 
 adverse to the claims of the Pioneer and Wild Goose Companies. 
 In the winter of 1899 and 1900 he was in Washington with Chipps. 
 They were brought into relation with Alexander McKenzie, an 
 active and influential politician of Minnesota and the Dakotas. The 
 latter organized a corporation called the Alaska Gold Mining Com- 
 pany, with a capital of $15,000,000, and had it incorporated under 
 the laws of Arizona. He retained a majority of the stock for him- 
 self and with shares of the remaining stock he procured "jumpers' " 
 titles to certain mining claims at Nome, among others the Chipps 
 location on Discovery Claim. 
 
"THE SPOILERS" loi 
 
 A bill was then pending in Congress providing for a civil gov- 
 ernment for Alaska. It was reported out of the Committee on Ter- 
 ritories by Senator Carter of Montana on March 5, 1900. The bill 
 as reported was substantially the laws of the State of Oregon as 
 they had been found applicable under the Act of Congress of May 
 17, 1884.'^ The bill contained, among other provisions, the law of 
 Oregon, providing that aliens should have the right to acquire and 
 hold lands in Alaska as if such aliens were citizens of the United 
 States, and providing further that the title to lands theretofore con- 
 veyed should not be questioned nor in any manner affected by rea- 
 son of the alienage of any person from or through whom such titles 
 may have been derived. 
 
 When the consideration of this provision of the bill was reached, 
 Senator Hansbrough of North Dakota moved to strike out the 
 provision and insert an amendment providing that aliens should not 
 be permitted to locate, hold or convey mining claims in said district 
 of Alaska, nor should any title to a mining claim acquired by loca- 
 tion or purchase through an alien be legal, and in any civil action, 
 suit or proceeding to recover the possession of a mining claim, or 
 for the appointment of a receiver, or for an injunction to restrain 
 the working or operation of a mining claim, it should be the duty 
 of the court to inquire into and determine the question of citizen- 
 ship of the locator. 
 
 This amendment was skilfully drawn by someone familiar with 
 the law respecting the rights of aliens to hold land in the terri- 
 tories of the United States. Its purpose was to set aside the de- 
 cision of the Supreme Court in Manuel v. Wulfif,^ and the decisions 
 of the courts in other cases already cited; to repeal the Act of Con- 
 gress of March 2, 1897,* relating to aliens holding real estate in the 
 territories ; to repeal the Oregon law made applicable to Alaska by 
 the Act of Congress of May 17, 1884; ^ and in very important par- 
 ticulars to modify and enlarge the law relating to the appointment 
 of receivers for placer mining claims and the granting of injunc- 
 tions to restrain the working and operation of the same. 
 
 It was frankly stated by Senator Hansbrough that the amend- 
 ment was aimed at the Laplanders who had gone to Alaska in the 
 manner and under the circumstances I have stated and had made 
 
 ^ 23 Stat, at L. 24 
 
 7(1894),'l52 U". S.'SOS, 38 L. Ed. 532, 14 Sup. Ct. Rep. 651. 
 
 8 29 Stat, at L. 618, U. S. Comp. Stat. § 3490 ff. 
 
 9 23 Stat, at L. 24. 
 
102 CALIFORNIA LAW REVIEW 
 
 mining locations in the mining region ; and it was admitted that its 
 purpose was to invahdate such possessory rights as may have been 
 acquired under the existing law. 
 
 The amendment was supported by Senators Carter of Montana 
 and Rawlins of Utah, but it aroused the vigorous opposition of such 
 able Senators as Stewart of Nevada, Teller of Colorado, Spooner 
 of Wisconsin, Bate of Tennessee and Nelson of Minnesota. The 
 latter is a native of Norway and is an able and forceful member of 
 the Senate. I served with him six years in the House and know 
 his intellectual caliber. He is a statesman of a high order. He 
 vigorously opposed the amendment because it was clearly retro- 
 active in terms and because it reflected upon the Laplanders and 
 Scandinavians whom he defended. 
 
 Then it was discovered by someone in the Congressional Library 
 that the Laplander was ethnologically suspected of being a member 
 of the dreaded Mongolian race; but this suspicion did not seem to 
 terrify the opposition, and it was finally determined by the friends 
 of the amendment that its real purpose was to exclude the Chinese 
 and Japanese as such. This appeared to be safer ground for popu- 
 lar legislation. 
 
 Then the language of the amendment was modified in some 
 minor phrase but not in purpose. The opposition continued; and 
 on the I St day of May, after having been before the Senate and 
 debated for nearly two months, it was finally withdrawn. The bill 
 went to the House, where the Hansbrough amendment was of- 
 fered, debated and defeated. 
 
 The provision of the Oregon law relating to aliens, incorporated 
 into the bill as reported, went out in the Senate, with the Hans- 
 brough amendment, but the act as it became a law provided that 
 "no person shall be deprived of any existing legal right or remedy 
 by reason of the passage of this act." The result was that Con- 
 gress, by its refusal to pass the Hansbrough amendment and re- 
 fusing to deprive anyone of his existing legal rights, preserved the 
 rights of aliens under the statutes and decisions of the courts as 
 fully as legislation could accomplish that purpose by express af- 
 firmative action, and that is the law on this subject today. 
 
 The bill provided a civil government for Alaska, and was ap- 
 proved June 6, 1900.^*' It established a District Court for the Dis- 
 trict of Alaska, and provided for the appointment of three judges 
 
 i"31 Stat, at L. 321. 
 
"THE SPOILERS" 103 
 
 for the district, to reside in the divisions to which they should be 
 assigned by the President. The President appointed Arthur H. 
 Noyes, of Minnesota, one of these judges and designated him to 
 preside over division number two and to reside at Saint Michaels. 
 This division included Nome. 
 
 The act directed that the judge should hold at least one term 
 of court each year at Saint Michaels, beginning the third Monday 
 in June. Each of the judges was authorized and directed to hold 
 such special terms of court as might be necessary for the public 
 welfare and for the dispatch of business of the court; but at least 
 thirty days' notice was required to be given of the time and place 
 of holding such special terms. 
 
 Judge Noyes was an old friend and acquaintance of McKenzie. 
 They had known each other in Minnesota ; they had been in Wash- 
 ington together during the Senate debate on the Alaska bill; and 
 they journeyed together to Nome, where they arrived on the 
 steamer Senator on the 19th of July, 1900. This was after the 
 time fixed by the statute for holding a term of court at Saint Mi- 
 chaels. On the sanje steamer returned Robert Chipps. McKenzie 
 and Chipps landed soon after the arrival of the vessel; but Judge 
 Noyes remained on board until the 21st. 
 
 We now come to the story told in "The Spoilers." After Mc- 
 Kenzie had made satisfactory arrangements with the legal firm of 
 Hubbard, Beeman & Hume, they proc^ded in great haste to pre- 
 pare complaints on behalf of Chipps and the other "jumpers" 
 against the original locators of the Discovery Claim owned by the 
 Pioneer Mining Company and against the locators whose possessory 
 rights had been purchased by the Wild Goose Company. On Mon- 
 day, July 23d, these complaints were presented to Judge Noyes. 
 There were five in number, entitled : Chipps v. Lindeberg, et al. ; 
 Melsing, et al., v. Tornanses; Comptois v. Anderson; Rogers v. 
 Kjellman; and Webster v. Nackkela, et al. 
 
 The judge immediately appointed McKenzie receiver in all the 
 cases embracing all the original claims of the two companies on 
 Anvil Creek. The order was made without notice and directed 
 McKenzie to take immediate possession of the property, which he 
 did. It was further ordered that the persons then in possession of 
 the claims should deliver to the receiver their immediate possession, 
 control and management, and the order expressly enjoined the de- 
 fendants from in any manner interfering with the mining or work- 
 ing of the claims by the receiver or wuth his control and manage- 
 
104 CALIFORNIA LAW REVIEW 
 
 ment. The amount of the bond required by the judge of the re- 
 ceiver was five thousand dollars in each case. 
 
 When McKenzie was appointed receiver of the mines described 
 in the several complaints, the court had not been organized as pre- 
 scribed by law, the judge had not been at Saint Michaels, and no 
 notice had been given of a special term of court at Nome where 
 judicial business would be transacted; no process had been issued 
 upon the complaints and no notice had been given the defendants 
 of the application for the appointment of a receiver; and the com- 
 plaints had not been filed with the clerk of the court so as to give 
 the judge jurisdiction over the cases. 
 
 It is a fundamental principle of constitutional law that no one 
 shall be deprived of his property without due process of law. What 
 is due process of law, is a subject of wide import. But its purpose 
 is easily stated : it is to secure every person, whether citizen or 
 alien, against the arbitrary exercise of governmental or judicial 
 powers in violation and disregard of established principles of jus- 
 tice.^^ It is a principle of established justice that no one shall have 
 his property taken from him without notice of the procedure which 
 it is proposed to invoke to accomplish that purpose and an oppor- 
 tunity to be heard upon the legality and justice of such procedure. 
 
 As said by the Supreme Court of the United States in Pennoyer 
 V. Nefif,^- discussing the meaning of the words "due process of law" 
 as applied to judicial proceedings: 
 
 "They then mean a course of legal proceedings according 
 to those rules and principles which have been established in 
 our system of jurisprudence for the protection and enforce- 
 ment of private rights." 
 
 In the case of Roller v. Holly, ^^ the Supreme Court said : 
 
 "That a man is entitled to some notice before he can be 
 deprived of his liberty or property, is an axiom of the law to 
 which no citation of authority could give additional weight." 
 
 In these cases at Nome no notice was given the defendants of 
 the filing of the suits or of the applications made to the court for 
 the appointment of a receiver, and no process had been issued. 
 The first the defendants knew of the proceedings was the appear- 
 ance of the receiver at the mines on the night of July 23d, armed 
 
 ^^ Guthrie on the Fourteenth Amendment, p. 67. 
 
 "(1877), 95 U. S. 714, 72,2,, 24 L. Ed. 565. 
 
 " (1900), 176 U. S. 398, 409, 44 L. Ed. 520, 20 Sup. Ct. Rep. 410. 
 
"THE SPOILERS" 105 
 
 with only the process of the court, to take possession of the prop- 
 erty. This was manifestly a violation of the constitutional right 
 which a person has to retain possession of the property in his 
 possession until a hearing has been had upon the question of a right 
 of possession. 
 
 Furthermore, the authorities state with great clearness that the 
 power to appoint a receiver is a delicate one and should be exer- 
 cised sparingly and with extreme caution.^* It is a power which, 
 unless used carefully, has a tendency to run into uncontrolled and 
 arbitrary action on the part of a single judge. ^^ 
 
 It is a rule that the receiver shall be required to give a good 
 and sufficient bond to indemnify the parties to the action in the 
 event the receiver shall prove unfaithful to his trust. In the com- 
 plaint against the locators of the Discovery Claim, it was alleged 
 that the defendants were extracting each day the mine was being 
 operated gold dust of the value of fifteen thousand dollars. A 
 similar allegation was made with respect to one of the claims of 
 the Wild Goose Company, w^iile it was alleged that from five to ten 
 thousand dollars in gold dust was being extracted each day from 
 the other claims. The bond required of McKenzie as receiver for 
 each of these claims was five thousand dollars, or the equivalent of 
 what each of these claims could produce in a few hours. The bond 
 was manifestly insufficient. 
 
 The primary object of a receiver is t® preserve the property in 
 controversy so that it may be subjected to such order or decree as 
 the court may finally make in the particular case. The sole value 
 of the mining claims in these cases was the gold contained in them. 
 The extraction of this gold by the receiver was the taking of the 
 very substance of the property and it was so alleged in the com- 
 plaints. To preserve such property, no receiver was recjuired ; the 
 gold was safe where it was. 
 
 In a proper case, the court might, by injunction, order that the 
 working of the mine should cease and that the property should re- 
 main in statu quo until the termination of the suit ; but such an 
 order would not require a receiver to carry it into effect. The ap- 
 pointment of a receiver in these cases did not even come under that 
 jurisdiction of the court. 
 
 "Sage V. Memphis etc. R. R. Co. (1888), 125 U. S. 361, 31 L. Ed. 
 694, 8 Sup. Ct. Rep. 887. 
 
 15 Hutchinson v. American Palace-Car Co. (1900), 104 Fed. 182, 187. 
 
io6 CALIFORNIA LAW REVIEW 
 
 It sometimes occurs in the case of a controversy over the title 
 to a vein or lode mine that its continual supervision and operation 
 is required. With underground workings supported by timbers 
 which have to be looked after, repaired and replaced, and with 
 water percolating into the tunnels, drifts and shafts of the mine, 
 it might be necessary to keep the mine in operation and a receiver 
 appointed for that purpose. But that was not the situation in any 
 one of these cases, and a receiver was not required in that view of 
 the controversy. 
 
 A receiver is appointed on behalf of all parties to the action 
 and not on behalf of the complainant or defendant only.^*' It is, 
 therefore, a rule that in adversary proceedings a receiver must be 
 an impartial and disinterested person and without any interest in 
 the result of the suit.^^ 
 
 Was McKenzie a disinterested person in these cases? The 
 record contains some extraordinary evidence upon this question. 
 McKenzie had secured the title of the plaintiff, Chipps, in the Dis- 
 covery Claim for himself, or for the Alaska Gold Mining Company 
 of which he was the president and owned a majority of the stock. 
 But this was but a small part of his interest in the litigation. It 
 appears from the evidence of Hume, of the legal firm of Hubbard, 
 Beeman & Hume, that on Thursday, July 19th, the day of his ar- 
 rival at Nome, McKenzie went to the offices of the above-named 
 attorneys and had an interview with Mr. Hume in which he told 
 the latter that Hubbard had transferred to him, McKenzie, his in- 
 terest in the litigation, which involved the right of possession of 
 the Anvil Creek mining claims, and that Hubbard had represented 
 to him that the other members of the firm would do the same, that 
 is, would transfer to his corporation the contingent interest they 
 had in those claims. The contingent interest of Hubbard, Beeman 
 & Hume was a one-half interest in the claims in case the plaintiff 
 prevailed. Hume testified that McKenzie further represented to 
 him and to Beeman that he controlled the appointment of the judge 
 and the district attorney, and that if they desired to have those 
 cases heard it would be absolutely necessary to transfer their in- 
 terest to his corporation, and receive in lieu certificates of stock; 
 and he testified that, at the same time, McKenzie demanded that a 
 
 "5 Atlantic 'IVust Co. v. Chapman (1908), 208 U. S. 360. 371. 52 L. 
 Ed. 528, 28 Sup. Ct. Rep. 406. 
 '■ 34 Cyc. 140. 
 
"THE SPOILERS" 107 
 
 one-fourth interest of the business of Hubbard, Beeman & Hume 
 be transferred to Joseph K. Wood, the district attorney, and that 
 Wood become a silent partner in the firm, and stated that, if all 
 this were assented to, Hume should become deputy district at- 
 torney. The evidence shows that Hume and his partners agreed to 
 these suggestions, and Wood became a silent partner in the firm of 
 Hubbard, Beeman & Hume, and that Hume was appointed deputy 
 district attorney. All this was done on Thursday, July 19th. The 
 evidence shows that on the same day, and immediately after mak- 
 ing these arrangements, McKensie took Hume and Beeman aside 
 and demanded that an entire one-fourth interest of the firm be 
 placed in his, McKenzie's, name, and that he receive one-fourth of 
 the profits. Hume testified that this was assented to on the next 
 morning (Friday, July 20th), after much objection and hesitation, 
 and only after McKenzie had threatened him that, if he refused, his 
 business and the interests of his clients would be ruined. He testi- 
 fied further that partnership articles were drawn up and signed in 
 accordance with the agreement. ^^ 
 
 McKenzie was, therefore, not only not a disinterested person in 
 these cases, but his relation to the litigation was such that he w^as 
 absolutely unfitted for the office of receiver ; and this the court must 
 have known, if not directly, certainly from all the surrounding cir- 
 cumstances. 
 
 The complaints alone were sufficient .to put the court on notice 
 that there was something seriously wrong in the proceedings : 
 
 One of the cases was an ordinary action in ejectment, with- 
 out a single allegation of an equitable nature entitling the 
 plaintiff to the appointment of a receiver; 
 
 In another case, the order granting the injunction and ap- 
 pointing the receiver was based upon an unverified bill of com- 
 plaint. There was, however, a reference to a complaint at 
 law, verified by the plaintifif a year before, entitled in a court 
 that had been abolished by the act of Congress ; 
 
 The complaints were, therefore, upon their face, insufficient 
 in point of law and subject to demurrers ore tenus, rendering 
 the appointment of a receiver improper for that reason alone. 
 
 In all the cases, the complaints alleged that the plaintiflfs 
 were citizens of the United States and that the defendants were 
 aliens and had never declared their intention to become citizens 
 of the United States. These allegations were the statements 
 
 ^* In re Noyes; In re Geary; In re Wood; In re Frost (1902), 121 
 Fed. 209, 213. 
 
io8 CALIFORNIA LAW REVIEW 
 
 of the causes of action against the defendants, which, upon any 
 fair examination of the law, would have been found not to be 
 causes of action in any case. 
 
 The defendants at the earliest opportunity moved the court, 
 upon suitable affidavits and objections to the procedure, to vacate 
 the orders appointing McKenzie receiver in the various cases. The 
 motions were denied. The defendants thereupon moved the court 
 for leave to appeal to the Circuit Court of Appeals from the orders 
 granting the injunction and appointing the receiver in all the cases. 
 At the sam.e time, they presented to the court proper bonds on ap- 
 peal, together with assignments of errors and proposed bills of ex- 
 ceptions for settlement and allowance. The court disallowed the 
 bills of exceptions, denied the petitions for appeals, and declined to 
 accept or fix the amount of any bond for costs or allow supersedeas 
 bonds to be given in any case. 
 
 On the same day, the court enlarged the power and authority 
 of the receiver and directed him to take into his possession all the 
 personal property on the Discovery Claim. Three weeks later simi- 
 lar orders were made in the other four cases. These orders were 
 in direct violation of the law w'hich limited the power and authority 
 of a receiver to the taking possession of other than specific personal 
 property ; and the whole proceedings from the initial order to the 
 last, in the particulars mentioned were in violation of law or well 
 established rules of procedure. 
 
 The defendants thereupon forwarded petitions for appeals, with 
 the accompanying papers, to the Circuit Court of Appeals at San 
 Francisco. That court not being in session, the applications were 
 presented to me as a judge of that court, and after a hearing upon 
 the applications, from which it appeared that the judge of the lower 
 court had grossly abused the judgment and discretion vested in him 
 by law, I allowed the appeals in all the cases; directed that cita- 
 tions issue ; accepted and approved supersedeas bonds ; directed that 
 writs of supersedeas be issued, and approved the forms of such 
 writs. 
 
 In accordance with these orders, the proper citations and writs 
 were issued and filed in the District Court at Nome, and copies 
 thereof served upon McKenzie and demand made upon him for 
 the restitution of the property in accordance with the directions of 
 the writs. McKenzie refused to comply with these orders and writs 
 and the court refused to enforce them. This fact was then brought 
 to the attention of the Circuit Court of Appeals in session at San 
 
"THE SPOILERS" 109 
 
 Francisco, and upon a hearing the court found that McKenzie had 
 contumaciously refused to obey the processes of the court. We 
 thereupon directed two deputy United States marshals to proceed 
 to Nome, enforce the orders of the court, arrest the offending re- 
 ceiver and produce him at the bar of the court. 
 
 The deputy marshals proceeded to Nome, and found that more 
 than $200,000 in gold dust taken from the claims in controversy by 
 McKenzie was in the Alaska Banking and Safe-Deposit Company 
 at that place. This gold dust McKenzie refused to deliver to the 
 marshals and refused to produce the keys to the safe-deposit vaults 
 where the dust was deposited, claiming to have given the keys to 
 the district attorney. McKenzie and his followers threatened that 
 in the event the marshals should attempt to execute the orders of 
 the court, a number of persons would be killed. Serious trouble 
 seemed imminent. 
 
 The deputy marshals prepared accordingly, and the military was 
 summoned to their aid ; and, under that protection, the deputy mar- 
 shals arrested McKenzie, broke open the vaults of the safe-deposit 
 company, took the gold dust therefrom and delivered it to the de- 
 fendants as directed by the court, and they brought McKenzie to 
 San Francisco to answer the order to show cause why he should 
 not be punished for contempt of court. 
 
 McKenzie applied to the Supreme Court of the United States 
 for a writ of certiorari to have the questions at issue determined 
 by that court. The Supreme Court denied the petition,^^ and Mc- 
 Kenzie was thereupon tried by the Circuit Court of Appeals and 
 found guilty and sentenced to imprisonment in the county jail of 
 Alameda County for a term of one year.-° 
 
 It was urged on behalf of McKenzie that his refusal to obey the 
 writs of supersedeas was based on the advice of counsel that the 
 writs were void. To this defense. Judge Ross, speaking for the 
 court, said : 
 
 "The circumstances attending the appointment of the re- 
 ceiver in these cases, however, and his conduct after, as well 
 as before, the appointment, as shown by the record and evi- 
 dence, so far from impressing us with the sincerity of the pre- 
 tension that this refusal to obey the writs issued out of this 
 
 i^Chipps and McKenzie, Receiver v. Lindeberg (1900), 179 U. S. 
 686, 21 Sup. Ct. Rep. 919. 
 
 20Tornanses v. Melsing (1901), 106 Fed. 775. 
 
no CALIFORNIA LAW REVIEW 
 
 court was based upon the advice of his counsel that they were 
 void, satisfy us that it was intentional and deliberate, and in 
 furtherance of the high-handed and grossly illegal proceedings 
 initiated almost as soon as Judge Noyes and McKenzie had set 
 foot on Alaskan territor)' at Nome, and which may be safely 
 and fortunately said to have no parallel in the jurisprudence 
 of this country." 
 McKenzie thereupon presented a petition to the Supreme Court 
 of the United States for a writ of habeas corpus to have the cause 
 of his imprisonment inquired into by that court. This petition was 
 heard, and in an opinion where all the proceedings of the Circuit 
 Court of Appeals and of the District Court at Alaska were re- 
 viewed, the proceedings of the Circuit Court of Appeals were af- 
 firmed.-^ McKenzie thereupon applied to the President of the 
 United States for a pardon, supported by strong political influence. 
 The pardon was at first refused; but, upon representation and evi- 
 dence that ]\IcKenzie's health was such that he would probably not 
 live out his term of imprisonment, he was pardoned — but not until 
 he had turned over to the defendants an additional quantity of 
 gold dust he had shipped to Seattle while the proceedings were in 
 progress. 
 
 Thereupon, orders were issued by the Circuit Court of Appeals 
 directed to Judge Noyes and certain others charged with disobey- 
 ing the orders and writs of the court, to show cause why they 
 should not be punished for contempt of court. Upon a hearing, 
 Judge Noyes and certain of the others were found guilty.-- In the 
 opinion of the court, written by Judge Gilbert, the proceedings in 
 the lower court are characterized in the following luminous lan- 
 guage : 
 
 "The proceedings upon which the receiver was appointed 
 were extraordinary in the extreme. Immediately after his ar- 
 rival at Nome in company with the man who, it seems, had 
 gone to Nome for the express purpose of entering into the re- 
 ceivership business, and who boasted to others that he had 
 secured the appointment of the judge, and that he controlled 
 the court and its officers, upon papers which had not as yet 
 been filed, before the issuance of summons, and before the 
 execution of receiver's bonds, without notice to the defendants, 
 without affording them an opportunity to be heard, Judge 
 Noyes wrested from them their mining claims, of which they 
 
 21 In re McKenzie (1901), 180 U. S. 536. 45 L. Ed. 657, 21 Sup. Ct. 
 Rep. 468. 
 
 22 In re Noyes; In re Geary; In re Wood; In re Frost (1902), 121 
 Fed. 209, 221. 
 
"THE SPOILERS" iii 
 
 were in the full possession, the sole value of which consisted of 
 the gold dust which they contained, and which lay safely stored 
 in the ground, and placed the claims in the hands of a receiver 
 with instructions to mine and operate the same, and this with- 
 out any showing of an equitable nature to indicate the neces- 
 sity or propriety of the receivership, or the necessity for the 
 operation of the mines by a receiver in order to protect the 
 property or to prevent its injury or waste. When the defend- 
 ants undertook to appeal from these orders, their right of ap- 
 peal was denied them. The receiver so appointed was per- 
 mitted to go on and mine these claims on an extensive scale, 
 and extract from them their value. According to the testi- 
 mony, some of the mines were 'gutted.' The appointment of 
 the receiver was, in the case of Chipps vs. Lindeberg, almost 
 immediately followed by an order authorizing the receiver to 
 take into his possession all the personal property of the de- 
 fendants which was found upon the claim, including their 
 stores, provisions, tools, and tents. The order so made was 
 so arbitrary and so unwarranted in law as to bafifle the mind 
 in its efifort to comprehend how it could have issued from a 
 court of justice." 
 
 The defendants were sentenced to terms of imprisonment, ex- 
 cept Judge Noyes, who was fined one thousand dollars. His im- 
 prisonment by the court would have been in effect a removal 
 from office — a punishment which a majority of the court did not 
 deem it was authorized to impose. That feature of the case was 
 therefore left with the President ; and after an independent investi- 
 gation by the Department of Justice, under the direction of the 
 President, Judge Noyes was removed from office by the President. 
 
 In the meantime, the cases on their merits were brought to the 
 Circuit Court of Appeals. Three cases -^ were heard on their 
 merits, and the orders appointing the receiver were reversed and 
 the cases remanded with instructions to dismiss the bills. The 
 "jumpers' " claims were based exclusively on the alleged alienage 
 of the prior locators and were found wholly without foundation as 
 causes of action.-* 
 
 In Anderson v. Comptois,-^ and Lindeberg v. Chipps,-'" the judg- 
 ments of the lower court were reversed and decrees entered upon 
 their merits in favor of the defendants upon stipulations of the par- 
 
 23Tornanses v. Melsing (1901), 109 Fed. 710; Kjellman v. Rogers 
 2-iTornanses v. Melsing (1901), 109 Fed. 710. 
 (1901), 109 Fed. 1061; Nackkela v. Webster (1901), 109 Fed. 1061. 
 25(1901), 108 Fed. 985. 
 -6 (1901), 108 Fed. 988. 
 
112 CALIFORNIA LAW REVIEW 
 
 ties ; and a like order was rendered in another case entitled Linde- 
 berg V. Requa.-' In Anderson v. Comptois,-® the Circuit Court of 
 Appeals, speaking of the proceedings in that case, said : 
 
 "There is but one conclusion to be drawn from such pro- 
 ceedings, and that is that the appointment of a receiver to 
 work and mine the placer claims owned by the defendants was 
 the beginning and the end of the causes of action." 
 
 The situation at Nome during these proceedings in the year 
 1900 was represented as being deplorable in the extreme. No one 
 cared to develop a mining claim or to make any efifort in that di- 
 rection, for, if it proved valuable, it would probably be "jumped" 
 upon some pretense or other, suit brought, and the claim placed in 
 the hands of a receiver. There was no incentive to enterprise while 
 this judicial menace was suspended over the community. 
 
 In the fall of 1901 and after the removal of Judge Noyes, the 
 Attorney General designated Judge Wickersham, of the third di- 
 vision, to hold a term of court at Nome. Upon his arrival at that 
 place, he proceeded to dispatch the business of the court with such 
 ability, firmness and fairness that the administration of justice was 
 made to command the immediate respect and confidence of the com- 
 munity. The supremacy of law was established. The usual result 
 followed. Business and mining enterprises were restored to their 
 proper channels and the community proceeded to take such ad- 
 vantage of the wonderful resources of the locality as to make it 
 one of the greatest mining camps in the world. 
 
 Returning now to the Kipling declaration made in 1896, that 
 "There is never a law of God or man runs north of Fifty-three," 
 and its repetition by Beach in the story of "The Spoilers," we have 
 this now to say for Alaska and her territorial waters : Lawlessness 
 has practically disappeared and the restraints of civilized life have 
 taken its place. 
 
 After long negotiations conducted by our State Department, the 
 Taft administration in 191 2 secured treaty stipulations with Great 
 Britain, Russia and Japan prohibiting pelagic sealing in Bering Sea; 
 and the seal herd, decimated by ruthless slaughter almost to the 
 point of extinction, is now slowly recovering and in a few years, 
 under the wise and careful supervision of the government, will 
 probably be restored to its former vigor and importance. 
 
 27 (1901), 108 Fed. 988. 
 
 28 (1901), 109 Fed. 971, 975. 
 
"THE SPOILERS" 113 
 
 For the vast territory of Alaska as a whole, and for that part 
 of it involved in this discussion in particular, we say the law is su- 
 preme, and is being administered by its judiciary with as much 
 wisdom and efficiency as in any other part of the United States. 
 Congress has given its attention to the needs of the territory ; and 
 by providing laws for the development of its wonderful resources, 
 it is being made the home of an industrious, law-abiding and pros- 
 perous people. 
 
 William W. Morrow. 
 
 United States Circuit Court of Appeals, 
 San Francisco, California. 
 
 Lederer, Street & Zeus Co., Printers, Berkeley, Cal. 
 
LIBRPRY OF CONGRESS 
 
 mil HIP III I li mil i mil mil 
 
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