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Opinion of the Court.

legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence; and that as the legislature of the State of New York had determined that it did not inflict cruel and unusual punishment, and its courts had sustained that determination, we were unable to perceive that the State had thereby abridged the privileges or immunities of petitioner or deprived him of due process of law.

That case is decisive of this, although the character of the confinement of the condemned pending his execution was not alluded to.

All that was held in Medley, Petitioner, 134 U. S. 160, was that a statute passed after the commission of the crime of murder, which added to the punishment of death, (that being the punishment when the crime was committed,) the further punishment of imprisonment in solitary confinement until the execution, was, when attempted to be enforced against a convict so situated, an ex post facto law, and that the sentence inflicting both punishments was void. The language of the opinion upon the subject of solitary confinement tended to illustrate the conclusion arrived at, but did not enlarge it.

And in Hollen v. Minnesota, 137 U. S. 483, it was assumed that a similar statutory provision was not open to constitutional objection.

It is further urged that the warrant did not direct the infliction of solitary confinement; that it indicated no specific mode of death; and that the mode and manner of the infliction of the death penalty were not specified. But as the warrant commanded the warden to cause the judgment and sentence to be executed and enforced, and the condemned to be put to death “in the mode, manner and way and at the place by law prescribed and provided,” this would seem to be ample authority to him for the confinement, as well as the infliction of the penalty of death, as prescribed by the statute; and, so far as the confinement had taken place under the first sentence and warrant, that resulted from the voluntary act of the petitioner in prosecuting an appeal.

In People v. Brush, reported in advance of the official series in the Northeastern Reporter, vol. 28, p. 533, it was

Opinion of the Court.

held by the Court of Appeals of New York, that an appeal from a judgment sentencing a defendant for murder in the first degree, operates only as a stay of execution of the death penalty, and not of the confinement of the defendant in the penitentiary pending the appeal, under the Code of Crim. Proc. of N. Y. sec. 528, which provides that “when the judgment is of death, an appeal to the Court of Appeals stays the execution, of course, until the determination of the appeal; and it was also held that under the statute providing for execution by electricity, a warrant which directed that execution be done by putting defendant to death in the mode, manner and way and at the place by law prescribed and provided, was sufficient.

The general rule of decision is that this court will follow the adjudication of the highest court of a State in the construction of its own statutes; and there is nothing in this case to take it out of that rule. We are of opinion that the record does not disclose that the petitioner is restrained of his liberty in violation of the Constitution and laws of the United States; and, as observed by Mr. Justice Harlan in In re Wood, 140 U. S. 278, 289, it was not intended by Congress that the courts of the United States should, by writs of habeas corpus, obstruct the ordinary administration of the criminal laws of the States through their own tribunals. The judgment must be affirmed, and the mandate issue at

once, and it is 80 ordered.

Trezza v. BRUSH. Appeal from the Circuit Court of the United States for the Southern District of New York. No. 1123. Decided December 21, 1891.

MR. CHIEF JUSTICE FULLER: Trezza was convicted of murder in the first degree in the Court of Sessions of Kings County, New York, June 6, 1890, and sentenced to death. The warrant for the execution of the judgment and sentence was duly issued to the agent and warden of the state prison at Sing Sing, and under it Trezza was committed to his custody.


An appeal was taken to the Court of Appeals and the judgment affirmed, (125 N. Y. 740,) whereupon, March 6, 1891, the Court of Sessions ordered the judgment of conviction and sentence of death to be executed and enforced in the manner provided by law, and issued a second warrant to the warden. Trezza then presented his petition for a writ of habeas corpus to the judge of the Circuit Court of the United States for the Southern District of New York, and brings the order of that court denying its prayer to this court on appeal.

Petitioner claimed that by his imprisonment under the first warrant he had been once punished for the offence for which he had been convicted, and that solitary confinement amounted to cruel and unusual punishment, and hence that he was restrained in violation of the Fifth and Eighth Amendments to the Constitution of the United States; and he objected also that the warrant was not sufficiently definite and specific.

The record has not been printed nor have briefs been filed on either side, and appellant was not represented by counsel when the cause came on for hearing. We have, however, carefully examined the transcript, and find no ground upon which to arrive at a different conclusion from that just announced in the case of McElvaine.

The judgment is affirmed, and the mandate ordered to issue at once.









No. 824. Argued October 23, 26, 1891, .- Decided December 21, 1891.

This court takes judicial notice of facts concerning the pueblo of San Fran

cisco, (not contradictory of the findings of the referee in this case,) which are recited in former decisions of this court, in statutes of the United States and of the State of California, and in the records of the

Department of the Interior. It is settled law that a patent for public land is void at law if the grantor

State had no title to the premises embraced in it, or if the officer who issued it had no authority to do 80; and that the want of such title or

authority can be shown in an action at law. The power to make and correct surveys of the public lands belongs exclu


Statement of the Case.

sively to the political department of the government, and the action of that department is unassailable in the courts, except by a direct pro

ceeding. In matters relating to the sale and disposition of the public domain, the

surveying of private land claims and the issuing of patents thereon, and the administration of the trusts devolving on the government, by reason of the laws of Congress, or under treaty stipulations respecting the public domain, the Secretary of the Interior is the supervising agent of the government, to do justice to all claimants, and preserve the rights of the

people of the United States. The Secretary of the Interior had ample power to set aside the Stratton sur

vey of the San Francisco pueblo lands, (although approved by the surveyor general of California, and confirmed by the Commissioner of the General Land Office, with no appeal taken,) and to order a new survey;

and his action in that respect is unassailable in a collateral proceeding. The method of running the shore line of the bay of San Francisco in the

Von Leicht survey was correct. The well-settled doctrine that, on the acquisition of the territory from

Mexico, the United States acquired the title to lands under tide water in trust for the future States that might be erected out of the territory, does not apply to lands that had been previously granted to other parties by the former government, or had been subjected to trusts that would

require their disposition in some other way. The patent of the United States is evidence of the title of the city of San

Francisco under Mexican laws to the pueblo lands, and is conclusive, not only as against the United States and all parties claiming under it by titles subsequently acquired, but also as against all parties except those who have a full and complete title acquired from Mexico, anterior in date to that confirmed by the decree of confirmation.

The court stated the case as follows:

This was an action of ejectment brought in the superior court in and for the city and county of San Francisco, California, by the United Land Association, a corporation of that State, and one Clinton C. Tripp, against Thomas Knight, to recover a block of land in that city bounded by Barry, Channel, Seventh and Eighth Streets, and known as block number forty. The controversy involves an interesting question of title to the property described, the plaintiffs asserting that the premises were below the line of ordinary high-water mark at the date of the conquest of California from Mexico, and, therefore, upon the admission of the State into the Union in 1850, enured to it in virtue of its sovereignty over tide lands; and

Statement of the Case.

the defendant insisting that the lands are a portion of the pueblo of San Francisco, as confirmed and patented by the United States.

The complaint, filed on the 23d of November, 1880, alleged that the plaintiffs were the owners in fee of the premises described, and were entitled to the possession thereof, and that they had been wrongfully dispossessed thereof by the defend. ant, who continued to hold such unlawful possession, to their damage in the sum of $100, and to their loss of the rents and profits thereof in the sum of $500. Wherefore they prayed a judgment of restitution and damages aforesaid.

The answer consisted of a general denial of all the allegations of the complaint; and the cause, being at issue, was, by stipulation of counsel, referred to a referee, to take testimony, “try all the issues and report his findings and judgment thereon."

In obedience to the order of the court the referee tried the case, making an elaborate finding of facts and concluding, as matter of law, that judgment should go for the plaintiffs. Accordingly, on the 2d of June, 1888, a judgment was entered in the superior court in favor of the plaintiffs. That judgment was afterwards affirmed by the Supreme Court of the State on appeal; and, after two separate rehearings, the judgment of affirmance was adhered to by a bare majority of the court, three of the judges dissenting. 85 California, 448, 474. This writ of error was then sued out.

It appears from the bill of exceptions that, on the trial of the case before the referee, the plaintiffs, to sustain the issues on their behalf, introduced evidence tending to show the location of the premises to be as alleged in the complaint, and also a complete and good title in themselves under a grant from the State and certain mesne conveyances, provided the title to the premises was originally in the State, and provided certain deeds (which were also introduced) from the state tideland commissioners, dated, respectively, November 24 and 27, 1875, were effectual to convey said title. For the purpose of proving title in the State they offered parol testimony to show that in 1854 the premises were below the line of ordinary

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