The title of the family of Arguello confirmed to the following
described tract of land in California, namely, bounded on the south
by the Arrogo, or Creek of San Francisquito, on the north by the
Creek San Mateo, on the east by the Esteras, or waters of the Bay
of San Francisco, and on the west by the eastern borders of the
valley known as the Canada do Raimundo.
On the 26th of November, 1835, the Governor of California gave
an order that the petitioner should have a tract of land without
specifying the boundaries, which was done by an order, having the
formalities of a definitive title on the 27th. This latter document
must govern the case. No good title is shown which can include the
valley on the west.
The testimony upon this point examined.
The decree of 1824 and regulations of 1825 forbid the
colonization of territory comprehended within twenty leagues of the
boundaries of any foreign state and within ten leagues of the
seacoast without the consent of the supreme executive power.
But this restriction only included grants to empresarios who
intended to introduce large colonies of foreigners. It did not
prohibit grants of land within those limits to natives of the
country.
The facts are stated in the opinion of the Court.
Page 59 U. S. 540
MR. JUSTICE delivered the opinion of the Court.
The claimants in this case presented their petition to the
commissioners for settling private land claims in California,
praying to have their title confirmed "to a certain tract of land
called the
Rancho de las Pulgas.'" They allege that this tract
contains twelve square leagues of land, having a front on the Bay
of San Francisco of four leagues, bounded southerly by a creek
called San Francisquito, and northerly by the San Mateo, and
extending back from the bay some three leagues to the sierra or
range of mountains, so as to include the valley, or Canada de
Raymundo.
The commissioners confirmed the claim to the extent of four
leagues in length between said creeks and one league in breadth,
excluding the Valley Raymundo, and bounded by it on the west. This
decision of the commissioners was confirmed by the district court,
and both parties have appealed to this Court.
We shall first consider the appeal of the claimants.
Have they shown a title to more than the four leagues confirmed
to them by the commissioners and the court below?
The appellants represent the heirs of Don Luis Arguello, who
died about the year 1830.
1. They allege that Don Jose Dario Arguello, father of Don Luis,
being one of the founders of the country and in its military
service as commandante of the Presidio at San Francisco, was the
owner of a tract called "Las Pulgas," by virtue of some title or
license derived from Don Diego Borica, then governor of the
province, who was in possession of it as early as 1795; that this
early title has been lost and remains only in tradition.
2. That in 1820 or 1821, Don Pablo Vincente de Sola made a new
title to Don Luis Arguello, who had succeeded his father, Don Jose,
in the possession.
3. That after the death of Don Luis in 1830, his family remained
in possession; that in August, 1835, one Alvisu petitioned the
governor for a grant of the "Canada de Raymundo," and, it being
found that the heirs of Arguello claimed that valley to be within
the bounds of their rancho Pulgas, notice was ordered to be given
to the widow and heirs, of Alvisu's petition. That they appeared by
their attorney, Estrada, before the governor and protested against
the grant to Alvisu, and that the governor, on inquiry,
acknowledged the justice of the claim of the Arguello and refused
to grant the valley to Alvisu.
Page 59 U. S. 541
4. That in October, 1835, Estrada, the executor of Luis
Arguello, and acting as agent for the family, made application to
the governor setting forth their long possession and praying a
corresponding title to be issued in their names, and that the
governor, after examining into the justice of their claim, issued a
decree of concession dated 26th of November, 1835, which was
approved by the territorial assembly on the 10th of December
following.
This last-mentioned decree or grant thus approved is the only
documentary evidence of title exhibited by the claimants. If it
includes within its boundaries the "Canada de Raymundo" as part of
"Las Pulgas," it will follow that the claimants have shown a
complete title thereto, and our inquiry would end here. Therefore,
though last in order in the claimants' deraignment of their title,
we shall consider it first.
On the 27th of October, 1835, Don Jose Estrada, executor of Don
Luis Arguello, presented his petition on behalf of the widow and
heirs to Don Jose Castro, the governor, praying for a grant of the
"rancho of Las Pulgas" and describing its boundaries as "from the
Creek of San Matteo to the Creek of San Francesquito, and from the
Estheros, the estuary or bay, to the Sierra, or mountains." The
petition alleged also that the Arguellos had "been in possession of
the same since 1800, as is publicly and notoriously known, but the
papers of possession had been mislaid."
The rough draft (diseno) accompanying this petition represents a
range of hills designated as "Lomeria baja," and parallel to these
a range of loftier character marked "Sierra;" between these ranges
is a canada, or valley; this is the Valley Raymundo. The claim of
the petition is evidently intended to include it.
On the 26th of October, 1835, the governor made the usual order
requiring the alcalde of San Francisco de Assiz to take information
as to the land, and make return of the expediente. The alcalde made
a report, accompanied by the testimony of three witnesses, who
proved an occupancy of the rancho of Las Pulgas by the Arguellos
for many years as a cattle range. One describes it as extending
from east to west (evidently a mistake for north to south) four
leagues, and from the estuary to the hills (lomas) situate at the
west of Monte Redondo and Canada "Raymundo." This would include the
valley now claimed. But the second witness describes it as "about
four leagues" from creek to creek, and "one league from the estuary
to the mountains covered with trees." The third as "four leagues
from creek to creek and one league from the estuary to the
mountains covered with trees, of the Canada Raymundo."
Page 59 U. S. 542
The petitioner did not exhibit any documentary evidence of a
prior grant of any given quantity of land or setting forth any
certain boundary, nor did the witnesses pretend to have ever seen
any.
When the report was returned to the governor, he made the
following order, dated 26th November, 1835:
"Monterey, November 26, 1835"
"In view of the petition with which this espediente begins, and
the information of three competent witnesses, and in conformity
with the laws and regulations of the subject, the minor orphans of
the deceased citizen, Don Louis Arguello, at the petition of Jose
Estrada, citizen, are declared the owners in property of the tract
known under the name of 'Las Pulgas,' reserving the approval of the
M. E. territorial deputation, to which this espediente shall be
sent, the corresponding patent to be signed and recorded in the
corresponding book, delivering it to the interested parties for its
suitable uses. Senor Don Jose Castro, senior member (vocal) of the
M.E. territorial deputation and political chief
ad interim
of Upper California, thus ordered, decreed, and signed, to which I
certify."
On the next day (27th of November, 1835), the governor executed
the following document to serve as a title or letters patent. It is
signed by the governor and secretary and recorded in the
archives.
"Whereas citizen Jose Estrada has petitioned in the name of his
wards, Jose Ramon and Luis Arguello, and the girls M'a Concepcion
and M'a Josefa, minors and legitimate children of the deceased
citizen Luis Arguello, having previously taken the deposition of
proper witnesses, and they having declared the land called 'Las
Pulgas' to have been their property of the deceased ever since the
year of 1800, whereof the limits are on the south, the Arrogo of
San Francisquito, on the north, that of San Matteo, on the east the
estuaries, and on the west the Canada de Raimundo; and using the
faculties which are conferred on me by decree of this day, and in
the name of the Mexican nation, I have come to declare him the
owner thereof by the present letters, this grant being understood
as made in entire conformity with the disposition of the laws with
the reservation of the approval of the most excellent territorial
deputation. The land herein mentioned is four leagues in latitude
and one in longitude. In consequence, I order that the present,
serving as a title to him, and to be held as firm and valid, be
recorded in the book thereto corresponding and be delivered to the
petitioner for his security and other purposes."
The claimants rely upon the first document, dated November
Page 59 U. S. 543
26, which gives no definite boundary or quantity, and argue that
the grant being thus approved by the assembly, the power of the
governor over it ceased, and consequently that the document, dated
on the 27th, which defines the boundaries and quantity of the
concession is not the definitive grant described in the rules and
regulations of 1828. But a glance at these rules and at the
contents of these documents will show the fallacy of this
assumption.
The first section of these regulations gives the authority to
governors (
gefe politico) to grant vacant lands. The
second directs the form and manner in which those who solicit such
grant shall address the governor. The third requires the governor
to obtain the necessary information required by the laws of 1824,
and consult the municipal authorities whether there are any
objections to making such concession. By the 4th section, the
governor, being thus informed, may "accede or not" to the prayer of
the petition. This was done in two ways -- sometimes he expressed
his consent by merely writing the word "concedo" at the bottom of
the expediente; at other times it was expressed with more
formality, as in the present case. But it seldom specified the
boundaries, extent, or conditions of the grant. It is intended
merely to show that the governor has "acceded" to the request of
the applicant and as an order for a patent or definitive title in
due form to be drawn out for execution. It is not itself such a
document as is required by the 8th section, which directs "that the
definitive grant asked for being made, a document signed by the
governor shall be given to serve as a title to the parties
interested."
The document of the 26th has none of the characteristics of a
definitive grant. It shows only that the governor assents that the
petitioner shall have a grant of a tract of land called "Las
Pulgas." It describes no boundary, and ascertains no quantity. It
contemplates a "corresponding patent," and does not purport itself
to be such document.
On the contrary, the document of the 27th has all the
formalities of a definitive title, and purports on its face to be
made for that purpose. It gives the boundaries of the tract known
as "Las Pulgas," namely:
"On the south the creek San Francisquito, on the north the San
Matteo, on the east the estuary, on the west the Canada de
Raimundo, four leagues in length and one in breadth."
The Mexican authorities have themselves given a construction to
this grant in 1840, when they granted the Canada de Raimundo to
Coppinger, calling for "Las Pulgas" as its eastern boundary.
Moreover, juridical possession was given to the Arguellos,
establishing the western boundary of the
Page 59 U. S. 544
Las Pulgas, one league west of the estuary or Bay of San
Francisco.
The commissioners and the court below having confirmed the claim
of the appellants to the extent of this legal title, the question
on their appeal is whether they have shown any title to the Valley
of Raimundo, or for any land west of the boundary adjudged to Las
Pulgas by the Mexican authorities, so many years ago. In support of
their claim, the appellants rely upon a supposed grant from
Governor Borrica to Don Jose Arguello at an early day, and a
re-grant or new title to Don Luis Arguello in 1820 or 1821 by De
Sola.
Much parol testimony and some historical documents have been
introduced on this subject. The value and effect of this evidence
has been very fully discussed by the commissioners and the court
below. We fully concur in their conclusions on this subject, but do
not think it necessary to indicate our opinion by a special and
particular examination of it. It will be sufficient to state the
results at which we arrived after a careful consideration.
1. There is no sufficient evidence to satisfy our minds that any
grant was ever made by Governor Borrica or by De Sola. The archives
of government show no trace of evidence of such a grant from either
of them. They have not proved the existence of it by the testimony
of anyone who had seen it; they assume the existence and loss of
the documents from the fact that none can now be found.
Without stopping to inquire whether, by the Spanish law, a
subject could claim against the King by prescription, we will
assume for the purposes of this case that as a presumption of fact,
the court would be justified in presuming a grant on proof of fifty
years continuous, notorious, adverse possession of a tract of land
having certain admitted and well defined boundaries, and inquire
whether we have such evidence as regards this Valley of Raimundo
and the eight additional leagues of land now claimed to belong to
the ranches of Las Pulgas.
Don Jose Arguello was, for many years, commandant of the
Presidio of San Francisco; after his death he was succeeded in the
command by his son Don Luis. As early as 1797, the King's horses
were pastured and herded on this rancho. As early as 1804, soldiers
under the command of Don Jose resided in huts on the land included
in the grant made to appellants in 1835, and had charge of cattle
said to belong to the commandant Don Jose. The sheep of the
neighboring mission of Santa Clara were sometimes pastured on it.
The King's cattle, as well as those of the commandant, were
pastured on it as late as 1821. After the death of Don Jose, his
son and successor in office,
Page 59 U. S. 545
Don Luis, continued the occupation of it by his herds and
herdsmen. The cattle on this rancho at some seasons wandered over
the Valley of Raimundo and to the foot of the western sierra. Don
Luis also cut timber at one time on the hills west of said
valley.
About 1821, governor Sola had the King's cattle removed, and
permitted Don Luis to remain in possession of the rancho, which he
continued to claim as his own up to the time of his death, though
he took no steps towards obtaining a definitive title. As to the
extent of his claim, his eastern, northern, and southern boundaries
by the creek and the estuary were well known and ascertained. The
western, though said to be the hills or mountains and, in one
sense, a fixed boundary, was very uncertain. It might be at one
league from the bay to the first range of woody hills, or four
leagues to the highest summit of the main ridge of the sierra. Not
one of the witnesses who attempt to establish this title by
tradition can state what number of square leagues it contained.
No inference of an adverse claim or grant can be drawn from the
fact that the commandant of a post pastured his own cattle with
those of the King, or that the son and successor in office should
continue in possession of the rancho by permission of the governor
after the King's cattle were removed. The fact that the cattle of
Arguello wandered to the mountains and over this valley afford no
necessary presumption that he claimed it or owned it. And in a
frontier country, the cutting of timber is very equivocal evidence
of even a claim of ownership of the land. The evidence shows also
an unequivocal denial of Don Luis that his claim extended beyond
the bounds of the grant since made to his heirs or included the
Canada Raymundo.
The fact that the governor in 1835 refused to grant this valley
to Alvisu because it belonged or was claimed by the heirs of
Arguello cannot operate to give a title to them by way of estoppel.
The only inferences that can be drawn from these proceedings are:
1. that Alvisu applied for the land; 2. that the Arguellos claimed
it; 3. that the governor refused for that reason to grant it to
Alvisu. It has always been the wise and just policy of the Mexican
government to avoid granting litigious titles. Hence the caution
shown in refusing to grant to Alvisu till the true extent of the
Arguello claim was established. Estrada, who acted on that occasion
for the widow and heirs, reserved to himself the right "to further
develop their claim." This was immediately done by his application
to the governor for a title and the proceedings thereon in 1835
which have been already noticed. This proceeding was instituted for
the purpose of having a direct adjudication
Page 59 U. S. 546
on the claim of the Arguellos and the extent and boundaries of
Las Pulgas, which they then occupied as a rancho. Here we have the
first proceeding which can operate as an estoppel on either party.
The King may be estopped by his deed, and the appellants by
accepting as a definitive title to the Las Pulgas a deed excluding
the Valley of Raymundo, are estopped from asserting that it is
included in their grant. Here, for the first time, we have a
juridical investigation to ascertain and fix the boundaries of Las
Pulgas. A name which represented heretofore an unknown quantity has
been reduced to certainty. This grant has been registered among the
public archives, accepted by the claimants, and possession
delivered accordingly. Having thus, by a regular juridical
proceeding, ascertained the boundaries and quantity of land
represented by the name of Las Pulgas, the Valley of Raymundo being
without the boundary so fixed, is, in 1840, granted as public land
to Coppinger.
There is no evidence to show either fraud or mistake in these
proceedings. The appellants have got Las Pulgas by a valid title,
according to the boundaries ascertained by the proper public
authorities, and cannot now be permitted to recur to vague
tradition of a vague and uncertain boundary, to unsettle the titles
to a large territory since granted to others.
The case of
United States v.
Roselius, 15 How. 31, bears a strong resemblance to
the present. There it was decided that
"When a part of the land claimed under a Spanish title was
granted to and accepted by the claimant without any saving of his
claim, this must be taken to have satisfied his whole claim upon
the equity of the government."
It is, said the Court, in the nature of a compromise, and
conclusive as to the rights of the claimant.
In the case before us, the equity of the claimant was
adjudicated after an investigation of the claim and an
ascertainment of its boundary and quantity. But whether it be
treated as
res judicata or as a compromise, it is equally
conclusive as to the claims of the appellant on the equity of the
government.
2. We come now to the consideration of the appeal entered on
behalf of the United States.
The authenticity of the patent or concession to the claimants
for Las Pulgas in 1835 is not disputed, but it is contended that it
is void
"because, under the regulations of 1824, lands lying within the
littoral leagues could not be granted by territorial governors, but
only by the supreme government."
On the contrary, it is contended by the counsel for the
claimants
"that this clause in the colonization laws is not intended as a
general prohibition of grants of land within those boundaries, but
refers only to foreign colonization, and is applicable to states
only, and not to the territories of the republic. "
Page 59 U. S. 547
It is evident from an inspection of this act of 1824 and
consequent regulations of 1828 that they contemplate two distinct
species of grants. 1. Grants to impresarios, or contractors,
sometimes called
pobladores, who engaged to introduce a
body of foreign settlers. 2. The distribution of lands to Mexican
citizens, "families or single persons."
While these countries were under the dominion of Spain, the
governors had authority to make grants of the latter description,
while those of the former required the sanction of the King. As
examples of such colonization contracts in Louisiana, those of the
Marquis of Maison Rouge and the Baron de Bastrop may be referred
to. They came under the consideration of this Court in the cases of
United States v. King and
Coxe, 7 How. 833, and
United
States v. Philadelphia, 11 How. 609. These
contracts were executory. They designated a certain tract of
country, which was "appropriated" to be gratuitously distributed
among the colonists but did not confer an absolute or immediate
title to the whole tract to be colonized by the contractor.
"As the object of these grants was to obtain a body of foreign
agriculturists who would settle together under one common leader in
whom the governments could confide, liberal terms were offered. A
body of such colonists, besides opening, cultivating, and improving
the wild lands, served as a protection against the Indians and
created inducements to others of their countrymen to join them, and
thus promote the early settlement of the province."
The same policy was pursued by the Mexican government. Besides
the desire of fortifying themselves against apprehended attempts at
subjugation by Spain, they had before their eyes the prosperous
growth of the United States consequent on the liberal encouragement
of European immigration. But while anxious to encourage immigration
of foreigners, they nevertheless entertained some jealousy, well
founded perhaps, that in case of conflict with a powerful neighbor,
their sympathies and allegiance might not be safely relied on.
Hence the caution exhibited in requiring the approval of the
supreme government "to grants made to impresarios for them to
colonize with many families.'" But while a judicious policy
might forbid the settlement of large bodies of foreigners on the
boundaries and seacoast, we cannot impute to them the weakness or
folly of confining their native citizens to the interior, and thus
leaving their seacoast a wilderness without population. On the
contrary, the same considerations of policy which excluded
foreigners would encourage the settlement of natives within those
bounds. The statute books of Mexico abound in acts offering every
inducement to Mexican families to settle on
Page 59 U. S.
548
frontiers -- proffering gratuitous grants of land and of
agricultural implements, expenses of their voyage, maintenance for
a year, and leave to import certain articles free of duty. The
military posts in the territory were on the seacoast, and it would
be strange policy indeed which would isolate the posts intended for
the protection of settlers and compel them to dwell among the
savages without protection. Numerous enactments also exhibit their
cautious jealousy with respect to foreigners, and especially their
coterminous neighbors on the north. An act of 1828 directs all
Spaniards living on the coast of the Mexican gulf to retire twenty
leagues from it. Another, of 1830, prohibits settlements of
foreigners from coterminous nations on any part of their border
states.
A careful examination of this decree of 1824 and regulations of
1828 will show that their letter conforms to this policy, pursued
with so much solicitude. The title to the decree shows its subject
to be "colonization." The term "colonization" implies immigration
in numbers. The first section speaks of the subjects of such
colonization as "foreigners." It guarantees to them security of
person and property. The second and third describe the lands open
to such colonists, and requires the states to make rules and
regulations for colonization within their limits. The fourth (whose
construction is now under consideration) forbids the colonization
of the territory comprehended within twenty leagues of the
boundaries of any foreign state, and within ten leagues of the
seacoast, without the consent of the supreme executive power. The
sixth section provides that no duties shall be imposed on the
entrance of "foreigners." The seventh forbids the immigration of
"foreigners" to be prohibited prior to 1840, except of some
particular nation and under peculiar circumstances. The seventh
indicates the possibility that the government may find it necessary
to take measures of precaution for the security of the federation
with respect to foreigners who come to colonize.
These are all the sections of the act which refer directly to
colonization. The subjects of it are called "foreigners"
throughout. They are the only persons to whom the fourth section
has any reference or application.
The 9th section first speaks of the "distribution of lands" to
individuals and families, as distinguished from colonists, and
provides that Mexican citizens should be preferred, without
distinction of classes except as to those who have rendered special
service to their country.
Thus we have seen that the first eight sections apply wholly to
colonists and foreigners. It would be contrary to every canon of
construction to apply the provisions made for them to the
Page 59 U. S. 549
subject introduced for the first time in the 9th section, or to
select the 4th section as applicable to native citizens while the
other seven are confined by their terms to "foreigners."
The regulations of 1828, made for the purpose of carrying into
execution the law of 1824, evidently give this construction to that
act. It makes a clear distinction between empresario contracts for
colonization and grants to Mexican citizens. In conformity with the
4th section of that act, it requires grants to empresarios to have
the sanction of the supreme government, while those made to
individuals or families need only the approval of the territorial
deputation. This may be said to be a legislative construction of
the act of 1824, and demonstrates that this restraint of grants
within the lateral leagues had no application except to colonies of
foreigners.
If anything further were wanted to fortify this construction,
the uniform practice of the territorial governors to make grants to
individuals and families within those bonds would be
conclusive.
The petition of Jimeno in 1840, praying the governor to apply to
the supreme government for a confirmation of these grants, confirms
the views we have taken. It shows what had been the antecedent
practice on the subject, and that, although Jimeno had doubts about
its legality, others had not.
On the whole, we are of opinion that the judgment of the
district court is correct, and it is adjudged that the said claim
of the petitioners is valid as to that portion of the land
described in the petition, which is bounded as follows, to-wit: on
the south by the Arroyo or Creek of San Francisquito, on the north
by the Creek San Matteo, on the east by the Esteras, or waters of
the Bay of San Francisco, and on the west by the eastern borders of
the valley known as the "Canada de Raimundo," said land being of
the extent of four leagues in length and one in breadth, be the
same more or less, and it is therefore hereby decreed that the said
land be, and the same is hereby confirmed to them, and it is
further adjudged and decreed that the said petitioners have and
hold the same under this confirmation in the following shares or
proportions, to-wit: Maria de la Solidad Ortega Arguello, one equal
undivided half thereof; Jose Ramon Arguello, one equal undivided
fourth part thereof; Luis Antonio Arguello, one equal undivided
tenth part thereof; and S. M. Mezes three equal undivided twentieth
parts of said premises.
And as to the portion of the premises described in said
petition, which is not included within the boundaries above
mentioned, the claim of the petitioners is adjudged not to be
valid.
Page 59 U. S. 550
No. 77. ARGUELLO v. THE UNITED STATES
No. 78. THE UNITED STATES v. ARGUELLO
et al.
No. 92. THE UNITED STATES v. CERVANTES
No. 94. THE UNITED STATES v. VACA AND PENA
No. 99. THE UNITED STATES v. LARKIN AND MISSROON
MR. JUSTICE DANIEL, dissenting.
From the decision of the Court in each of these causes, as I
have done in that of the
United States v. Reading, during
the present term, and as I should have done in those of
United States v.
Ritchie, 17 How. 525, and of
United
States, v. Fremont, 17 How. 542, had I set in the
causes last mentioned, I am constrained to declare my dissent.
The decisions in all the causes above enumerated have, according
to my apprehension, been made in violation of the acknowledged laws
and authority of that government which should have controlled those
decisions and the subjects to which they relate, are subversive
alike of justice and of the rights and the policy of the United
States in the distribution and seating of the public lands -- of
the welfare of the people of, California, by inciting and pampering
a corrupt and grasping spirit of speculation and monopoly --
subversive likewise of rules and principles of adjudication
heretofore asserted by this Court in relation to claims to lands
within the acquired domain of the United States.
It has by this Court been repeatedly and expressly ruled, with
respect to the territories acquired by the United States either by
purchase or conquest, that the laws and institutions in force
within those territories at the time of the acquisition were not
from thence to be regarded as foreign laws and in that aspect to be
proved as matters of fact, but that the courts of the United States
were authorized and bound to take the same judicial cognizance and
notice of these laws which they were authorized and bound to extend
to the laws of the several states. This doctrine has been ruled
after much consideration and reconsideration, as will be seen in
the cases of
United States v. King and
Coxe, 7 How. 833;
United
States v. Philadelphia and New Orleans, 11 How.
609; and
United States v.
Turner, 11 How. 663.
It is conceded that at the times at which the claims now
sanctioned by this Court came into being and from a period anterior
to the origin of those claims down to the transfer of the country
to the United States, there existed laws and regulations enacted by
the Mexican government with respect to the granting of lands within
the republic, prescribing the modes in which and the agents by whom
all grants should be made, and
Page 59 U. S. 551
prescribing also the limitations and exceptions to which the
power of making grants was subjected.
Amongst the laws and ordinances here referred to are those by
which the authority of the provincial commanders of governors to
originate the titles to lands was conferred and limited. The
prerequisites indispensable for the consummation of titles -- the
immunity from the power of the provincial governors, or from grants
or alienations by them, of lands belonging to the Missions; the
prohibition of colonization and settlement within twenty leagues of
a foreign territory, and within what have been denominated the
littoral leagues, or ten leagues from the seacoast; and the
necessity for a sanction by the departmental assemblies to give
validity to private or individual titles, were all, by the same
system or body of laws, established and proclaimed.
With the wisdom or justice of those laws and ordinances it is
conceived that this Court can have no legitimate concernment; much
less can it exercise the power to dispense with them or to modify
them in any degree whatsoever. Its province and its duty are
confined to inquiries as to the existence of such laws and to their
just effect upon the pretensions of claimants necessarily dependent
upon and subordinate to those laws, and to the protection of the
United States, the successors and possessors of that authority by
which those laws were ordained.
Whenever these inquiries shall lead to the conclusion that such
pretensions are unfounded in law, the right to the subjects to
which they relate devolves necessarily upon the United States as
succeeding to the sovereignty of the Mexican government; succeeding
also to the high obligation of so disposing of these subjects as
shall render them conducive to the national revenue, shall baffle
and defeat the schemes of corrupt and corrupting avarice and
monopoly, and shall maintain and secure an equality of privilege
and benefit to all the citizens of the nation.
That the laws and ordinances above referred to were solemnly,
formally, and legitimately established and proclaimed by the
government of Mexico is not denied, nor is it pretended that they
have ever been expressly or openly repealed by the government of
the republic. An attempt is made, however, to escape from the
authority and effect of those public laws by setting up a practice
in violation of them, and from the proof of this practice to
establish a different code or system by which the former, regularly
adopted and promulgate, and never directly repealed, has been
abrogated and disannulled. The results of this attempt, if
successful, and by this Court it has been thus far rendered
successful, are these -- that the laws and institutions of the
Page 59 U. S. 552
Republic of Mexico, inscribed in her archives, are not to be
received and judicially noticed by this Court, but they are to be
sought for in the existence of machinations and abuses which have
at different times obtained, in defiance of the established or
regular government -- proofs to be collected from sources however
impure or liable to improper influences; in other words, the laws
of Mexico are to be extracted from statements varying or
contradictory as they may be, and resting on the mere assertion of
individuals, all of them perhaps interested.
How a proceeding like this is to be reconciled with the
decisions of this Court already cited, or how indeed it can be
reconciled with uniformity or with the safety either of property or
person, passes my comprehension to conceive. It can hardly admit of
a rational doubt in the mind of any man who considers the character
of much of the population of the late Spanish dominions in America
-- sunk in ignorance and marked by the traits which tyranny and
degradation, political and moral, naturally and usually engender --
that proofs, or rather statements, might be obtained as to any fact
or circumstance which it might be deemed desirable or profitable to
establish. And it will very probably be developed in the progress
of the struggle or scramble for monopoly of the public domain that
many of the witnesses upon whose testimony the novel and sturdy
Mexican code of practice or seizure is to be established, in
abrogation of the written law, are directly or intermediately
interested in the success of a monopoly by which, under the
countenance of this Court, PRINCIPALITIES are won by AN AFFIDAVIT,
and conferred upon the unscrupulous few to the exclusion and
detriment of the many, and by the sacrifice of the sovereign rights
of the United States.
A transient view of the circumstances under which these enormous
pretensions have been originated is sufficient if not for their
absolute condemnation, at least to subject them to a most vigilant
scrutiny.
If we look at the condition of the country at the time, we find
it in a state of almost incessant agitation, disorder, and
revolution -- controlled in rapid succession by men either
themselves directly and violently seizing upon power or becoming
the instruments of those who had practiced such irregularities --
men whose position was created or maintained by no regular or
constitutional authority, but simply by force, and continuing only
until overthrown by superior violence. Turning our attention next
to the grants themselves, they are without an exception deficient
in the requisites prescribed by the established written laws of the
country, as indispensable to impart to them validity -- but rest
solely upon the circumstances (and boldly
Page 59 U. S. 553
challenging countenance and support here upon those
circumstances) that they have originated in practical and temporary
usurpations of power, and that, amidst scenes of violence and
disorder, have been either maintained or acquiesced in in defiance
of the known public law.
Yet, these avowals with respect to the origin and growth of
these claims -- avowals which infect and taint their entire being
and character and which ought to consign them to the sternest
reprobation -- constitute the merits by which they commend
themselves to the countenance and support of a tribunal whose
highest function is the assertion of law, justice, integrity, order
-- the dispensation of right equally to all.
Upon such a foundation, such a pretense, or rather such a
defiance of authority, I will not, by an abuse of language, call it
even a pretense of right. I cannot consent to impair or destroy the
sovereign rights and the financial interests of the United States
in the public domain. I can perceive no merit, no claim whatsoever,
to favor on the part of the grasping and unscrupulous speculator
and monopolist; no propriety in retarding for his advantage or
profit the settlement and population of new states by excluding
therefrom the honest citizen of small means by whose presence and
industry the improvement and wealth, and social and moral health
and advancement of the country are always sure to be promoted.