admit attorneys to practice. But the power can only be exercised where there has been such conduct on the part of the parties complained of as shows them to be unfit to be members of the profession. Parties are admitted to the profession only upon satisfactory evidence that they possess fair private character and sufficient legal learning to conduct causes in court for suitors. The order of admission is the judg ment of the court that they possess the requisite qualifications both in character and learning. They become, by such admission, officers of the court and, as said in Ex parte Garland, 4 Wall., 378 [71 U. S., XVIII., 370], "They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded." Before a judgment disbarring an attorney is rendered, he should have notice of the grounds of complaint against him and ample opportunity of explanation and defense. This is a rule of natural justice and should be equally followed when proceedings are taken to deprive him of his right to practice his profession, as when they are taken to reach his real or personal prop power. But the power has been limited and defined by the Act of Congress of March 2, 1831. 4 Stat. at L., 487. The Act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution may, perhaps, be a matter of doubt, but that it applies to the circuit and district courts there can be no question. These courts were created by Act of Congress. Their powers and duties depend upon the Act calling them into existence, or subsequent Acts extending or limiting their jurisdiction. The Act of 1831 is, therefore, to them, the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases: 1, where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2, where there has been misbehavior of any officer of the courts in his official transactions; and, 3, where there has been disobedience or resistance by any officer, party, juror, witness or other person, to any lawful writ, process, order, rule, decree or command of the courts. As thus seen, the power of these courts in the punish-erty. And such has been the general, if not ments of contempts can only be exercised to in sure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments and proc esses. the uniform, practice of the courts of this country and of England. There may be cases, undoubtedly, of such gross and outrageous conduct in open court on the part of the attorney, as to justify very summary proceedings for his suspension or removal from office; but even If we now test the report of the grand jury then he should be heard before he is conby this statute, we find nothing in it which demned. Ex parte Heyfron, 7 How. (Miss.) justified any proceeding whatever as for a con- 127; People v. Turner, 1 Cal., 148; Fletcher v. tempt on the part of the court below against Daingerfield, 20 Cal., 430; Beene v. State, 22 Robinson. No act of his is mentioned which Ark., 157; Ex parte Bradley, 7 Wall., 364 [74 could constitute within the statute a contempt | U. S., XIX., 214]; Bradley v. Fisher, 13 Wall., either of the court or of its judge. The allegation that the witness, Stevenson, after seeing Robinson, had suddenly absented himself, amounted to nothing more than an insinuation that possibly he may have been advised to that course by Robinson. There was no averment of any fact which the court could notice or the attor ney was bound to explain. Whatever contempt was committed by the petitioner consisted in the tone and manner in which his language to the court was uttered. On this hearing we are bound to take the statements in that respect of the judge embodied in his order as true, for the question before us is not whether the court erred, but whether it had any jurisdiction to disbar the petitioner for the alleged contempt. The law happily prescribes the punishment which the court can impose for contempts. The 17th section of the Judiciary Act of 1789, 1 Stat. at L., 73, declares that the court shall have power to punish contempts of their authority in any cause or hearing before them, by fine or imprisonment, at their discretion. The enactment is a limitation upon the manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment. The judgment of the court disbarring the petitioner, treated as a punishment for a contempt, was, therefore, unauthorized and void. The power to disbar an attorney proceeds upon very different grounds. This power is 354 [80 U. S., XX., 651]. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judg ment, is essential to the security of all private rights. Without its observance no one would be safe from oppression wherever power may be lodged. That mandamus is the appropriate remedy in a case like this to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter, was decided in Ex parte Bradley [supra]. It would serve no useful purpose to repeat the reasons by which this conclusion was reached, as they are fully and clearly stated in that case, and are entirely satisfactory. A peremptory mandamus must issue, requiring the judge of the court below to vacate the order disbarring the petitioner, and to restore him to his office; and it is so ordered. Dissenting, Mr. Justice Miller. Cited 100 U. S., 330; 107 U. S.. 303; 19 Blatchf., 2; 2 Flipp., 568; 82 N. Y., 166; 93 Pa. St., 121 (39 Am. Rep., 731). possessed by all courts which have authority to Distiller's bond-sureties, when not discharged. sureties. 1. Although an assessor was not permitted to ap- | tween the United States and the securities on the prove a distiller's bond unless the distillery prop- bond, that the bond would not be accepted until erty was unincumbered as against the United States, yet if he did, he violated no duty which he owed the all liens should be discharged. It is a provision with which the sureties had nothing to do, unless it be that it imposed, in connection with their bond, a duty upon them to see that the liens were discharged before the bond was tendered. 2. The sureties in such a bond will not be discharged because the assessor approved of the bond while the distillery property was incumbered. [No. 287.] Argued Apr. 14, 1874. IN Decided May 4, 1874. ERROR to the Circuit Court of the United vania. The case is stated by the court. ror: It is submitted that all statutory bonds are executed with relation to the statutes under which they are given. Their obligation is the same as it would be if the statute were inserted by way of recital in hæc verba. From the statement it is clear that no bond could be approved by the assessor until the lien of the United States for taxes should have priority, and it is equally clear that no distiller could lawfully commence to distill until the assessor approved the bond. 3. Although the United States officers ought to have refused to accept the bond, and to allow the principal to distill the spirits in accordance with it, until these liens had been discharged or postponed, it does not follow that, if they waived such defects and accepted the bonds, the obligors on the bond can take advantage of their action. It is not a matter of mutuality, and the right of objecting that the distiller has not complied with the law in regard to liens, belongs to the United States, and not to the obligors. See, Chit. Cont., 10th Am. ed., 15. If there was any agreement, between the defendant's intestate and his principal, that the bond should not be delivered until the liens were discharged, it does not appear that the United States had any notice thereof, and it does not affect the validity of the bond in respect to them. Dair v. U. S., 16 Wall., 1 (83 U. S., XXI., An execution and a delivery of a bond which the assessor could not lawfully approve until the distillery premises were subject to the lien of taxes before all other liens, was the execu-491). tion and delivery of an escrow. The loss occurs in this case by the neglect of Mr. Chief Justice Waite delivered the opinduty on the part of the assessor. He is a serv-ion of the court: ant of the United States for loss accruing to the United States; he has given bonds. The surety has no action against him on that bond, and he cannot compel the United States to subrogate. The cases on bonds given to the United States, the obligation of which has been denied by sureties, are not in conflict with the position taken by the surety in this case. Pawling v. U. 8, 4 Cranch, 219 (1808); U. S. v. Kirkpatrick, 9 Wheat., 720 (1824); Dair v. U. S., Int. Rev. Rec. July 12, 1873. Mr C. H. Hill, Asst. Atty-Gen., for defendant in error: The action in the court below was upon a distiller's bond executed by Samuel M'Millan, as principal, and Robert Fletcher and the defendant's intestate as his sureties, in accordance with the provisions of the 7th section of the "Act Imposing Taxes on Distilled Spirits and for Other Purposes." 15 Stat. at L., 127. This section required that a distiller should, on filing his notice of intention to continue or commence business, make or execute a bond in the form prescribed with at least two sureties, to be approved by the assessor of the district. By the 8th section it was further provided that no bond The plaintiff in error, in her brief, seems to of a distiller should be approved unless he was rely principally upon section 8 of the Act of the owner in fee unincumbered by any mort1868, ch. 186, 15 Stat. at L., 128, which engage, judgment or other lien of the lot or tract acts: "That no bond of the distiller shall be of land on which his distillery was situated, or approved unless he is owner in fee, unin- unless he filed with the assessor, in connection cumbered by any mortgage, judgment or other with his notice, the written consent of the ownlien of the lot or tract of land on which the dis- er of the fee and of any mortgagee, judgment tillery is situated, or unless he files with the creditor or other person having a lien thereon, assessor, in connection with his notice, the duly acknowledged, that the premises might be written consent of the *** judgment creditor used for the purposes of distilling spirits, subor other person having a lien thereon, ***ject to the provisions of law, and expressly expressly stipulating that the lien of the United States for taxes and penalties shall have priority of such *** judgment or other incum brance." But to the argument drawn from this statute, there are several answers: 1. This bond being voluntarily given by the principal and his surety, and the distiller having had the benefit thereof, the bond is valid, although not in strict conformity with the pro visions of law. U. S. v. Hodson, 10 Wall., 395 (77 U. S., XIX., 937). 2. The statute above quoted, although direct ory and perhaps mandatory upon the revenue officers, in no way created any agreement beSee 19 WALL. U. S., Book 22. stipulating that the lien of the United States, for taxes and penalties, should have priority of such mortgage judgment or other incumbrance, and that in case of the forfeiture of the distillery premises or any part thereof, the title of the same should vest in the United States, discharged from such mortgage, etc. When the bond upon which this action was brought was delivered to and approved by the assessor, the distillery premises were incumbered by certain judgment liens, and the bond was approved and M'Millan permitted to commence and continue his business without their release or a stipulation for their postponement. The plaintiff in error pleaded these facts in bar to a recovery against her. To this plea the United 14 209 not be. States demurred. The circuit court sustained | quently, the timber, until rightfully severed, canthe demurrer and gave judgment upon the bond. To reverse this judgment, this writ of error is prosecuted. 3. It can be rightfully severed only for the purpose of improving the land or better adapting it for occupation. When rightfully severed it is no longer a part of the land, and there is no restriction upon its sale. tion. 4. The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presump5. To maintain his title under his purchase, it is incumbent on the purchaser to show that the timber was rightfully severed from the land. [No. 161.] Argued Mar. 19, 1874. Decided May 4, 1874. Na certificate of division of opinion between ed States for the Eastern District of Wisconsin. The case is stated by the court. The circuit court did not err in sustaining the demurrer to the plea of the plaintiff in error. The object of the 8th section of the Act of Congress (15 Stat. at L., 125) was to protect the Government, not the sureties upon the bond. By that section the assessor was not permitted to approve a distiller's bond unless the distillery property was unincumbered as against the United States. If he did he made himself liable to the Government for his default, but he violated no duty he owed the sureties. He was under no obligation to protect the signers of the bond. If the sureties insisted upon a release of the incumbrances as a condition to their becoming bound, they should have taken care to see that the bond was not approved until all the requirements of the statute in favor of the Government had been complied with. The assessor was in no respect called upon to act for them. If they failed to secure all the indemnity they might have had it was their fault, and notion of the court: that of the United States. As to them certainly this section of the Act is directory to the assessor and not mandatory. But it is directory also as to the United States. The assessor is a ministerial officer. He is directed not to approve a distiller's bond until the distillery property is made free from incum brances as against the claims of the Government. He ought to insist upon this. If he fails to perform this duty the Government will lose a part of the security it was entitled to have, but this will not prevent it from availing itself of so much as it has obtained. It is not averred in the plea that the bond was delivered to the assessor as an escrow, to be approved and made binding upon the obligors only when the incumbrances were released. It is not even averred that the assessor, when he approved the bond, had actual knowledge of the existence of the alleged incumbrances. But the theory of the plea is that the Act of Congress made the United States a guarantor to the surety that the distillery property was free from incumbrances at the time of the approval of the bond. In our opinion such is not the law. The judgment of the Circuit Court is affirmed. Mr. Justice Bradley did not sit in this case and took no part in its decision. Cited 95 U. S., 318; 1 Flipp., 578. UNITED STATES, Piff., v. GEORGE COOK, Deft. Action for timber cut on Indian reservation- 1. The United States may bring an action of replevin, to recover possession of logs sold by Indians from their reservation to a third person, where the logs were not cut for the improvement of the land. 2. The timber, while standing, is a part of the realty, and it can only be sold as the land could be. The land cannot be sold by the Indians and, conse Messrs. Geo. H. Williams, Atty-Gen., and S. F. Phillips, Solicitor-Gen., for the United States. Messrs. Winfield Smith & Stark, for defendant. Mr. Chief Justice Waite delivered the opin The Menomonee Indians, by agreement and Treaty negotiated on the 8th and 17th February, 1831, set apart and ceded to the United States, certain of their lands in Wisconsin, as a home for such of the New York Indians as might remove to and settle upon them. As the lands were intended for a home for the New York Indians, it was provided that the President should prescribe the time for the removal of the Indians to and settlement upon them and, at the expiration of the time, apportion the lands among the actual settlers in such manner as he should deem equitable and just. If, within the time prescribed, they refused to accept the provisions of the Treaty made for their benefit, or having accepted, refused to remove from New York and settle on the lands, then the lands were to be and remain the property of the United States. It was also distinctly understood that the lands ceded were to be held by the Tribes of New York Indians, under such tenure as the Menomonees held their lands, subject to such regulations and alterations of tenure as Congress and the President might direct. For this cession the United States paid the Menomonees $20,000. 7 Stat. at L., 343, 347. On the 3d of February, 1838, the first Christian and Orchard parties of the Oneida Indians, to whom a part of the Menomonee cession had been apportioned, ceded to the United States all the land set apart to them, except a tract containing one hundred acres for each individual, or in all about 65,000 acres, which they reserved to themselves to be held as other Indian lands were held. Of this tract, some three or four thousand acres have been occupied and cultivated as farming lands by individuals of the Tribe in severalty, with the consent of the Tribe. Many of the Indians, including most of the young men, do not culti vate any of the lands as their own. A small number of the Tribe cut timber from a part ofthe reservation not occupied in severalty, and sold to the defendant. The United States brought made it into saw-logs which they removed and this action of replevin against the purchaser, to recover possession of those logs, and upon trial in the circuit court, the facts here stated were established by the testimony, and in addition, evidence was offered, tending to prove that tim- | ber on the reservation had been cut and sold by the Indians of the Tribe continually since 1838, with the tacit consent of the officers of the Tribe. Upon this state of facts, the counsel of the United States asked the court to instruct the jury that the action could be brought and maintained. Upon the question of giving this instruction, the judges were divided in opinion, and it was certified to this court for decision. We think the action was properly brought, and that it may be maintained. der-man the Indians may do upon their reservations, but no more. In this case it is not pretended that the timber from which the saw-logs were made was cut for the purpose of improving the land. It was not taken from any portion of the land which was occupied, or, so far as appears, intended to be occupied for any purpose inconsistent with the continued presence of the timber. It was cut for sale and nothing else. Under such circumstances, when cut, it became the property of the United States absolutely, discharged of any rights of the Indians therein. The cutting was waste and, in accordance with well settled prin The right of the Indians in the land from which the logs were taken was that of occupan cy alone. They had no power of alienation ex-ciples, the owner of the fee may seize the timber cept to the United States. The fee was in the cut, arrest it by replevin, or proceed in trover United States, subject only to this right of oc- for its conversion. cupancy. This is the title by which other In- The Indians having only a right of occupandians hold their lands. It was so decided by cy in the lands, the presumption is against their this court as early as 1823, in Johnson v. Mcln-authority to cut and sell the timber. Every purtosh, 8 Wheat., 574. The authority of that case has never been doubted. 1 Kent, 257; Worcester v. Ga., 6 Pet., 580. The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. Cherokee Nat. v. Ga., 5 Pet., 48. The possession, when abandoned by the Indians, attaches itself to the fee without further grant. Cherokee Nation v. Ga., 5 Pet., 17. This right of use and occupancy by the In dians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may be reasonable under the circumstances. The timber taken off by the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized. The timber, while standing, is a part of the realty, and it can only be sold as the land could be. The land cannot be sold by the Indians, and consequently the timber, until rightfully sev ered, cannot be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully severed it is no longer a part of the land, and there is no restriction upon its sale. Its severance under such circumstances is, in effect, only a legitimate use of the land. In theory, at least, the land is better and more valuable with the timber off than with it on. It has been improved by the removal. If the timber should be severed for the purposes of sale alone-in other words, if the cutting of the timber was the principal thing and not the incident-then the cutting would be wrongful, and the timber, when cut, become the absolute property of the United States. chaser from them is charged with notice of this presumption. To maintain his title under his purchase it is incumbent on the purchaser to show that the timber was rightfully severed from the land. That the United States may maintain an action for cutting and carrying away timber from the public lands was decided in Cotton v. U. S., 11 How., 229. The principles recognized in that case are decisive of the right to maintain this action, The answer of the court, therefore, to the question propounded by the Circuit Court, is in the affirmative. Cited 92 U. S., 742; 95 U. S., 525; 4 Dill., 469; 1 Mc Crary, 244; 23 Kan., 24, 28; 64 N. Y., 271. GEORGE MACKAY, Plff. in Err., Ancient v. ALTON R. EASTON. (See S. C., 19 Wall., 619-634.) deed, presumption as to-identity of grantor-former decisions. 1. After the lapse of half a century, it is not to isbury (XVI., 181), Stoddard v. Chambers, 2 How., cases. ERROR to the Circuit Court of the United States for the Eastern District of Missouri. These are familiar principles in this country Plaintiff in error brought an action in ejectand well settled, as applicable to tenants for life ment in the Circuit Court of the United States and remainder-men. But a tenant for life has for the Eastern District of Missouri, to recover all the rights of occupancy in the lands of a re- a parcel of land in the City of St. Louis, from mainder-man. The Indians have the same rights the defendant in error, in which judgment was in the lands of their reservations. What a ten- rendered in favor of defendant. To reverse this ant for life may do upon the lands of a remain- | judgment, this writ of error is prosecuted. The case is stated in the opinion of the court. | patent to be void as against the United States. Messrs. Britton A. Hill and J. F. Darby, for plaintiff in error: The New Madrid location of 1823, and the patent thereon of 1827, are void, because both Acts were in violation of the Acts of Congress of 1815 and 1822. Congress alone has the power to dispose of the public lands. The sale of the public lands, Feb. 17, 1815, and April 26, 1822, when the New Madrid Acts were passed, was authorized by law to be made, only in accordance with the sectional and quarter sectional lines of the United States surveys. Vol. 1, Lands, Laws and Instructions, Senate ed. of 1838, May 10, 1800, p. 71, March 26, 1804, p. 109, and Mar. 3, 1811, p. 193. The J. Smith survey of March, 1818, was not made on any quarter sectional lines. It was made before the public surveys of township 45, range 7 east, were executed, and before that township was sectionized. The survey was, therefore, a nullity, a trespass, a violation of law, and no rights could be gained by the unlawful If the survey of March, 1818, operated to perfect the location of J. Smith's New Madrid claim and certificate, then the 1st section of the Act of 1822 cured the fatal defect, that it did not conform to sectional lines, and was not made "on lands, the sale of which was authorized by law." Sec. 1, New Madrid Act, 1815. The court below and the counsel for defendant in this court agree in holding that the New Madrid location was made in March, 1818, when the survey was made and, therefore, it was decided by the court below, that the filing of the survey of 1818 with the recorder of land titles, Feb. 26, 1823, made the location valid under the Act of April 26, 1822, being within one year after the passage of the Act. Vol. 1, Land Laws, etc., Sen. ed., 1838, p. 344. This is an error, and the uniform decisions of this court from the case of Barry v. Gamble, 3 How., 52, 3, 1843, down to Rector v. Ash ley, 6 Wall., 149 (73 U. S., XVIII., 734), 1867, having established the law to be that a New Madrid location is not made by the survey, but is made only by filing the survey in the office of the recorder of land titles. To settle all questions in dispute on this proposition, this court, in the case of Barry v. Gamble (supra), held the location in such cases to be void, if made in the violation of the sectional lines, after the passage of the Act of April 26, 1822. And this court, in 1858, in a case on this same title, under the patent to J. Smith of 1827 (Easton v. Salisbury, 21 How., 431 (62 U. S., XVI., 183), held the patent to be void, because the New Madrid location was on land reserved from sale; that is to say, that it was located on land, the sale of which was not authorized by law. The rule laid down in Stoddard v. Chambers, 2 How., 285; Mills v. Stoddard, 8 How., 345, and Bissell v. Penrose, 8 How., 345, declare the The true owner of the New Madrid title, finding that the patent to J. Smith was void under the decisions of Stoddard v. Chambers, and Barry v. Gamble, did not attempt to enter upon the land that belonged to the United States, nor was he bound to regard the trespass of Easton thereon as a matter of any moment. Messrs. E. Casselbury, W. B. Thompson and C. Gibson, for defendant in error: The New Madrid, like all other government bounties or benevolences, became in almost every instance, the food of speculators; parties appeared before the recorder, claiming to be the owners of land who were not really so, and obtained and located many of the certificates so issued, it being then a mooted question, whether the certificate did not create a new title. The courts, however, have settled the proposition that it is not a new title and that plaintiff, claiming such a title, must show a derivative title from the original owner. McCamant v. Patterson, 39 Mo., 100; Bryan v. Wear, 4 Mo., 106; Lessieur v. Price, 12 How., 59. The plaintiff in this case attempts to prove his title under J. Smith, by the deed to Gillespie, bearing date March 5, 1819, and claims that the deed conveyed to the grantee the two lots, Nos. 9 and 10, Little Prairie, that originally belonged to J. Smith; and the plaintiff further claims that said two lots were the same lands described as "two arpents of land," confirmed by the commissioners to J. Smith, by confirmation No. 1116, July 9, 1811, and in lieu of which New Madrid Location certificate No. 159 was issued. This deed bears date March 5, 1819, but was not recorded until August 23, 1871, a period of fifty-two years, during all which time, there is no pretense, in or out of the record, that plaintiff or his grantors exercised any acts of ownership over the premises in dispute, paid any taxes upon, or made any substantial claim to them. On the other hand, the deed of James Smith to Rufus Easton was duly recorded Nov. 20, 1816, three years before the deed to Gillespie. Easton and his heirs and vendees have obtained a patent granted to J. Smith or his legal representatives in 1827. The City of St. Louis has spread over the property, and great numbers of people have bought and built upon it, as appears by the fact that one hundred forty-five suits for the land are now pending in the court below, and awaiting the issue of this case. It is admitted that defendant has been in possession for more than ten years. Under these circumstances, I insist that no presumptions will be indulged in by the court in favor of this deed. The legal title emanated from the government by the patent issued to J. Smith or his representatives, in 1827, and, therefore, limitation is a bar to plaintiff's action. It is admitted that the survey was returned to the recorder Feb. 26, 1823, being within the time prescribed by the Act of April 22, 1822. This case, therefore, bears no analogy to Easton v. Salisbury, 21 How., 426 (62 U. S., XVI., 181). The location was not void on account of nonconformity to sectional and quarter sectional lines. Barry v. Gamble, 3 How., 32. |