The evidence is satisfactory to this Court that Alvarado, the
Governor of California, granted a tract of land, to the extent of
eleven leagues, to John A. Sutter in 1841.
Although the original grant has not been produced, yet there is
sufficient proof that it once existed, and was destroyed by fire. A
draft of the grant, prepared by the governor, is found in the
archives, and the grant was recorded in the county registry of
deeds, and this, together with the other evidence in
Page 62 U. S. 171
the case, shows that it was genuine, and also the map which
accompanied it. Although the map was incorrect in its lines of
latitude, yet it can be located by its reference to natural
objects.
This grant was authorized by the colonization laws of 1824 and
1828.
But another grant, purporting to be issued by Micheltorena in
1845, for the surplus of the former grant, being an additional
quantity of twenty-two leagues, does not stand in the same
position.
Supposing it to be genuine, yet the situation in which
Micheltorena was placed at its date was such as to impair its
validity. He had been driven from his capital, was not in the
peaceful exercise of his official authority, and was shortly after
compelled to abdicate. The grant was not recognized by the persons
who succeeded him, nor was it produced by the claimant to be placed
in the archives. It was not a valid claim at the date of the Treaty
of Guadalupe Hidalgo.
Grantees under the claim may prosecute it for confirmation in
the name of the original claimant.
It was a claim made by Sutter for land in California, under two
different grants.
1. A claim for eleven leagues of land, alleged to be granted to
him by Alvarado, on the 18th of June, 1841.
2. A claim for an additional quantity of twenty-two leagues,
alleged to be granted to him and his son, John A. Sutter, by
Micheltorena, on the 5th of February, 1845.
The board of commissioners confirmed both claims, and this
decree was affirmed by the district court. The circumstances of the
case are so fully related in the opinion of this Court, that it is
unnecessary to repeat them.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
This cause comes to this Court by appeal from a decree of the
District Court of the United States for the Northern District
of
Page 62 U. S. 172
California, which affirms a sentence of the board of
commissioners to settle private land claims in that state, in favor
of the appellee, upon a claim to thirty-three square leagues of
land in the valley of the Sacramento River. The record shows that
the claimant, a native of Switzerland, immigrated to the department
of California about the year 1839, was naturalized as a citizen of
Mexico, and with the leave of the government formed a settlement
near the junction of the Sacramento and American rivers, which he
designated New Helvetia. The country at the time was uninhabited
except by bands of warlike Indians, who made frequent depredatory
incursions upon the undefended settlements to the south and east of
this place. In two or three years after his arrival, the claimant
was commissioned by the Governor of California to guard the
northern frontier and to represent the government in affording
security and protection to its inhabitants against the invasion of
the Indians and marauding bands of hunters and trappers, who
occasionally visited the valley for plunder. In the year 1841, he
commenced the erection of a fort at New Helvetia, at his own
expense. It was surrounded by a high wall, and was defended by
cannon. Within this fort there were dwelling houses for his
servants and workmen and workshops for the manufacture of various
articles of necessity. There was a grist mill, tannery, and
distillery attached to the establishment. A number of Indians were
domesticated by him and contributed to cultivate his fields of
grain and to defend the settlement from more savage tribes. He was
possessed of several thousands of horses and neat cattle, which
were under the care of his servants. There were collected at
different times from twenty to fifty families, and there were in
the course of years some hundreds of persons connected with this
settlement. He is described as having been hospitable and generous
to strangers, and the Governors of California bear testimony to the
vigor with which he performed the duties of his civil and military
commission.
In March, 1852, he placed before the board of commissioners a
claim for eleven leagues of land, to include his place at New
Helvetia, and extending thence north, which were granted
Page 62 U. S. 173
to him by Juan B. Alvarado, Governor of California, 18th of
June, 1841.
In March, 1853, he amended his petition and claimed an
additional quantity of twenty-two leagues, which were granted to
him and his son, John A. Sutter, the 5th of February, 1845, by
Micheltorena, the Governor of California, this being the surplus
sobrante contained within the limits from which his first grant was
to be fulfilled. The espediente submitted to the board, with the
grant of Alvarado, and as a part of it, represents that he is in
possession of New Helvetia, and that his enterprise there had the
sanction of the government, and had been prosperous; that he had
associated with him industrious families; and that, besides the
advantage to himself, he had awakened industry in others, and had
also, by the strength of his company, formed a strong barrier
against the savage Indians. He asks to enlarge his establishment,
by introducing twelve families, and for this purpose solicits a
grant of eleven leagues at his establishment of New Helvetia, from
the governor, together with his powerful influence before the
supreme government of the nation, that its approbation might be
given. The governor recognizes the truth of the statements in the
espediente, and declares that he has been sufficiently informed
that the land is vacant and suitable for the purpose of the
grantee. He grants to the applicant, "for him and his settlers, the
said land, called New Helvetia, subject to the approbation of the
supreme government and of the department assembly," and subject to
four conditions. The third and fourth relate to the boundaries of
the land and the consummation of the title, and are as follows:
"3d. The land of which donation is made to him is of the extent
of eleven sitios de ganado mayor, as exhibited in the sketch
annexed to the proceedings, without including the lands overflown
by the swelling and current of the rivers. It is bounded on the
north by los Tres Picas three summits and the 39�41'45' north
latitude; on the east by the borders of the Rio de las Plumas; on
the south by the parallel 38�49'32' of north latitude; and on the
west by the River Sacramento."
"4th. When this property shall be confirmed unto him, he shall
petition the proper judge to give him possession
Page 62 U. S. 174
of the land, in order that it may be measured, agreeably to
ordinance, the surplus thereof remaining for the benefit of the
nation, for convenient purposes. Therefore I order that this title
being held as firm and valid, that the same be entered in the
proper book, and that these proceedings be transmitted to the
excellent departmental assembly."
The first inquiry in cases like this is, has the authenticity of
the grant been established? This was not questioned in the district
court, but in this Court the appellants have denounced, with much
force, the evidence as insufficient to support it. The original
issued to the donee was not produced either to the board of
commissioners or the district court. To account for its
nonproduction, two witnesses were examined, who say that a paper,
purporting to be an original, and which had the appearance of
authenticity, was in the possession of one of them, as the agent
and attorney in fact of the claimant; that this paper was destroyed
by fire with the office in which both lived in the fall of 1851. An
affidavit of the claimant in another case is in the record, in
which he says that the original is lost. Some months before this
fire, this paper was recorded in the county registry of deeds, and
the recording clerk affords some evidence to the genuineness of the
paper. It is shown that it had been exhibited in controversies
before courts of justice, and had been examined by adverse
claimants and their counsel, and at other times by interested and
inquiring parties.
A grant of the same date, for the same quantity of land, in the
same locality, and issued by the same officer, was reported to the
United States by William Carey Jones, Esq., their agent, as
existing in the archives of California in 1850. In his intercourse
with the officers of the California government, the claimant
asserted his title to New Helvetia, and his assertion was admitted,
and accurate accounts of his location and settlement, and the terms
on which they were made, are to be found in historical and
descriptive works published under the authority of foreign states,
upon the testimony of their agents, who visited California prior to
1845. Fremont 246; 1 Duflot de Moufras Explor. de l'Oregon and des
Cal'as 457. Besides
Page 62 U. S. 175
this consistent testimony, there is produced from the archives a
draft of a grant corresponding to that produced from the county
records, except in respect to the signatures.
The governor, Alvarado, testifies that this draft was prepared
by him, and from it the original that issued to Sutter was prepared
by the secretary, and that the draft was deposited by his
directions, and is now there. The fact that his name is not
attached to this draft does not impair its authority under the
circumstances of this case.
Spencer v.
Lapsley, 20 How. 264.
We agree that the rule of law which requires the best evidence
within the power or control of the party to be produced should not
be relaxed, and that the court should be satisfied that the better
evidence has not been willfully destroyed nor voluntarily withheld.
But the rule on the subject does not exact that the loss or
destruction of the document of evidence should be proved beyond all
possibility of a mistake. It only demands that a moral certainty
should exist that the court has had every opportunity for examining
and deciding the cause upon the best evidence within the power or
ability of the litigant. In every well regulated government, the
deeds of its officers, conveying parts of the public domain, are
registered or enrolled, to furnish permanent evidence to its
grantees of the origin of their title. An exemplification of such a
record is admissible, as evidence of the same dignity as of the
grant itself.
Patterson v.
Wynn, 5 Pet. 233;
United
States v. Davenport, 15 How. 1. This rule exists in
states which have adopted the civil law. In those states, the deed
is preserved in the archives, and copies are given as authentic
acts -- that is, acts which have a certain and accredited author,
and merit confidence. The acts thus preserved are public
instruments, and all doubts that arise upon the copies that may be
delivered are resolved by a reference to the protocol from which
the copies are taken, and without which they have no authority. 1
White Recop. 297;
Owings v.
Hull, 9 Pet. 607
When, therefore, a protocol is found in the archives, the
nonproduction of the original given to the party cannot furnish
much cause for suspicion or alarm. The map to which
Page 62 U. S. 176
the grant refers, and which properly forms a part of it, is not
produced from the archives. The testimony of the witnesses is that
there was a map accompanying the original, and was burned with it.
An engineer or surveyor, Vioget, who prepared maps for the
claimant, testifies that, in January, 1841, he made duplicate maps
for the claimant of the establishment at New Helvetia, and surveyed
eleven leagues at that place, and that, in 1843, he traced a copy
from one of these, and that copy is produced and filed with the
petition. It is a fair conclusion from all the evidence, that these
maps of Vioget were presented to the governor and form the basis of
the grant and make a part of it.
The secretary, Jimeno, who was examined in reference to an
application of the appellee for an enlargement of his establishment
by the donation of the sobrante, says that a map accompanied the
petition, and exhibited the land desired; that he made a favorable
report upon the petition. The petition for the surplus, or
sobrante, implies there was an existing and operative grant, which
the authorities recognized and respected. With this map, we have no
difficulty in locating the grant so as to include New Helvetia.
Without it, the question would be whether the general description
of New Helvetia should overrule the particular description by metes
and bounds, contained in the third condition, for it is ascertained
that the exact position of the line of latitude which determines
the southern boundary lies twenty miles north of the principal
establishment. But the map shows that the line of the southern
boundary is south of New Helvetia, and is so related to natural
objects represented on it as to be easily determined. Vioget
accounts for the error in the designation of the line by the
imperfection of the instruments, and proves that a starting corner
was fixed, and the line traced on the ground. This is better
evidence of the true location of the southern line, and conforms to
the probabilities of the case. Upon the whole evidence, we find
that the grant and map filed with the petition in 1852, before the
board of commissioners, have been proved. The authenticity of the
grant being ascertained, the question of its validity, as a
colonization grant, under the
Page 62 U. S. 177
laws of 1824 and of 1828, remains to be considered. To these
laws, the authorities of California habitually refer as the source
of their authority.
The law of 1828 authorizes the political chief to grant lands to
an
empresario who may wish to colonize, but that the grant
shall not be definitely valid without the previous approbation of
the supreme government, to which the espediente, with such report
as the departmental assembly may think fit to make, shall be
communicated. Before conceding lands, the chief was directed to
make inquires that the candidate was embraced by the laws, and that
the land was suitable for colonization, and was not subject to any
existing right.
The grant to the claimant recites that the governor had obtained
the information necessary, and that the requirements of the law had
been fulfilled.
No condition was imposed upon the claimant in respect to the
distribution of the lands among the families to be introduced. The
object of the grant, on the part of the authorities, seems to have
been to secure the services of an efficient and competent officer,
in a distant and exposed portion of the province, who would
undertake to give repose and security to the settlements in that
region; and this distribution of lands was confided to him as a
trust, and a compensation for the performance of that duty.
The quantity of land was not greater than the colonization laws
authorized an individual to hold, and the only care of the
authorities was that the consideration of the grant should be
secured from the donee. The evidence is satisfactory that the
expectations of the donors were entirely fulfilled. During the
early administration of Alvarado and Micheltorena, the grantee
seems to have had the favor of the political authorities, and in
1844 there was no objection opposed by them to the enlargement of
his enterprise. He was referred to for information in business of
the department, and, in the civil commotions that preceded the
overturn of the power of Micheltorena, he was the principal stay of
his administration; and when called in question, subsequently, by
the enemies of his chief, he said:
"My establishment is situated between the San Joaquin and
Page 62 U. S. 178
Sacramento Rivers. It is the point which forms the frontier of
the Mosebulos Indians, who are those who attack the ranchos and
seize the horses. It is the road of transit from the interior.
These reasons, not less than the great distance from my place to
the other settlements, suggested to me the propriety of building my
fort, and in order to do so I obtained a license from the
government of the country."
Subsequently to February, 1845, he seems not to have been
molested by the government of Mexico, but remained the only
representative of its power and authority in the valley of the
Sacramento. There was no inconvenience felt by the failure to
complete the grant, and there was no denunciation, by anyone, of
the land, for a breach of any condition. When the treaty of
Guadalupe Hidalgo was ratified, he was a citizen of Mexico, in
possession of the property comprehended in the grant, and is
entitled to all the guarantees provided by that treaty for the
Mexican population of California. He has submitted his claims to
the tribunals appointed by the United States within the term
prescribed, and is ready to abide their action in reference to
them. We know of no law of the United States which authorizes us to
pronounce a sentence of forfeiture for any act or omission since
the date of the treaty. Our opinion is that this grant is a valid
claim under that treaty.
The grant purporting to be issued by Micheltorena at Santa
Barbara, the 5th February, 1845, and submitted to the board of
commissioners in March, 1853, remains to be considered.
The original of this grant was not produced. It is not in the
list of grants reported to the government by Mr. Jones, nor is it
found in the archives of California. It has not been placed upon
the county records of Sacramento County, nor is there any evidence
that it was ever produced in any of the controversies for the land
included in it. There is no petition, or reference to the
secretary, or compliance with any other formality prescribed by the
law of 1828, preliminary to the issue of grants for lands. The
record shows that in 1843, or 1844, the claimant applied for the
sobrante or surplus, and that his petition was referred to
the secretary for further information,
Page 62 U. S. 179
and that he reported there was no objection; that the governor
reserved the subject for consideration until he could visit the
Sacramento valley, and that the papers were returned to the
claimant.
In February, 1845, there existed a revolt against the government
of Micheltorena in which the principal inhabitants of California
participated. Micheltorena abandoned his capital, and, on his way
to Los Angeles, reached Santa Barbara, where the claimant joined
him with a body of "foreign volunteers." The deposition of
Castanada, the aid-de-camp of Micheltorena, has been taken. He says
that the claimant presented a petition for a grant to himself and
his son; that he Castanada drew the deed, and that it was executed
by the governor, in his presence, at Santa Barbara, and that he
believes that the paper presented is a true copy. One of the
volunteers testifies that the governor made a speech to the
volunteers, in which he said he had granted to Sutter all the lands
he had claimed, or asked for, and that he had issued grants to all
the applicants for lands who had been licensed to settle in the
valley of the Sacramento. He says, about two months after he saw a
grant in the hands of Sutter, which Sutter informed him had been
delivered at that time, and that he thinks the present copy
corresponds with the one he then saw.
The two witnesses who proved the loss of the other grant testify
that the original of this was destroyed at the same time with the
other, and that the paper produced is a copy of the one
destroyed.
This evidence is not entirely satisfactory to establish the
execution of the grant. The two witnesses first named speak of a
paper they had not seen since 1845, and one of them was not
familiar with the language in which it is written. One of the other
witnesses is largely interested as a grantee of the claimant in the
issue of this suit, and the fourth immigrated to California after
the treaty, was not conversant with the Spanish language, and
derived much of his impressions from the parties who claimed title
under Sutter, and of whom he was the attorney.
But we are not disposed to place the decision of the cause
Page 62 U. S. 180
upon the deficiency of the evidence of the execution of the
paper, and therefore do not pronounce absolutely upon it.
The decisions of the court show that they have been disposed to
interpret liberally the measures of the Mexican authorities in
California, and to view with indulgence the acts and modes of
dealing of the inhabitants, having reference to the laws of
distribution and settlement of the public domain. The circumstances
in which the governor was placed required that his power and
discretion should not be circumscribed by narrow limits. In a
remote province of the Mexican Republic, he was almost the only
representative of the general and common will of the nation, and he
was habitually in collision, sometimes in violent collision, with
provincial feelings, sentiments, and interests. At the time this
grant purports to have been made, he was engaged in a civil war,
which, after having been smothered for a time, had burst forth with
increased violence. Within two or three weeks from the date of the
grant, the war was terminated by the agreement of Micheltorena to
abandon the country. He never returned to the capital, except to
prepare for his departure. The laws of Mexico for the colonization
and settlement of the public domain embody a comprehensive and
liberal policy, and the arrangements for their execution denote
care and circumspection on the part of their authors in securing
their faithful administration. They authorize the governor
(politicos gefes) to grant lands to those who may ask for
them, for the purpose of cultivating and inhabiting them. They
require that every person soliciting for lands shall address the
governor a petition, expressing his name, country, and profession,
the number, description, religion, and other circumstances of his
condition, and describing as distinctly as possible, by means of a
map, the land asked for; that the governor shall obtain the
necessary information whether the petition embraces the requisite
conditions required by the law as to the person and land, and, if
necessary, that the municipal authorities might be consulted
whether there be an objection to making the grant or not; that the
grants made to private families or persons shall not be held to be
definitely valid without the previous consent of the departmental
assembly,
Page 62 U. S. 181
and, in case of their dissent, that it should be referred to the
supreme government. The definitive grant being made, a document
signed by the governor shall be given, wherein it must be stated
that said grant is made in conformity with the provisions of the
laws in virtue whereof possession shall be given, and that the
necessary record shall be kept, in a book destined for the purpose,
of all the petitions presented and grants made, with the maps of
the lands granted, and the circumstantial report shall be forwarded
quarterly to the supreme government.
The office of political chief of a state or province has long
existed in Spain, whence it was derived by Mexico, and his duties
are defined with precision in the works on the administrative law
of that monarchy. The authoritative acts of this officer assume the
form of ordinances and regulations, or of decrees and judgments.
The former relate to the concerns of the department, and may issue
spontaneously, while the latter always proceed upon a petition.
There are scarcely any formulas prescribed for these acts. But
there exist certain rules, consecrated by usage, sanctioned by
reason, and required by justice, some of which have received the
assent of the legislator, and others are official regulations.
The administration has need of information, and hence the
political chief may consult with subordinate authorities and
corporations in all business in which exact information is required
of local facts and circumstances, and he is bound to hear the
suggestions of the deputations and provincial assemblies when the
law requires it -- a rigorous condition, a compliance with which
should appear in the recitals of the disposing part, and the
inserting of the customary formulas, that the act may not be
contested for excess of power. Finally, all the acts of the
political chief shall be authenticated by his signature, and it
concerns the good order of the administration that they should be
inserted in a special record. Colmeiro derecho Admin., secs. 285,
286
Assuming the statements of the witnesses Castanada and Ford to
be accurate, it can hardly be contended that the issue of this
grant was an act of civil administration, or had
Page 62 U. S. 182
any reference to the law of colonization and settlement. At a
distance from the capital, in the prosecution of an intestine war
against a band of insurgents, surrounded by a body of foreign
volunteers on whose fidelity his safety depends, the governor
promises to dispose of the public domain as a compensation for
service or as an inducement to loyalty. In a few days this governor
is defeated, vacates his post, and his troops are disbanded.
The hostile government that succeeded to that of Micheltorena
have not recognized the legality of the deeds of the deposed chief,
nor did the claimant, so far as we are informed, attempt to obtain
any sanction to his claim or to introduce the evidence in his
possession among the archives of the department, without which a
perfect title could never have been obtained. On the contrary, the
record shows that he was a captive in the hands of the enemies of
Micheltorena, and was released, after humble apologies for his
adherence to the unfortunate chief, and protestations that in
future he would be loyal to the existing authorities. He kept his
grant concealed, apparently as a dangerous secret, until an entire
change in the political Constitution of the country took place. In
our opinion, this was not a valid claim at the date of the Treaty
of Guadalupe Hidalgo, and is not entitled to recognition from the
United States.
It appears from the deeds in the record that the claimant has
conveyed nearly all of his estate in the land included in the two
grants, and objection is taken to the form of the suit. It is
contended that the claim should have been preferred by the grantees
of the claimant. We admit the force of the argument in favor of the
objection, and that the dormant interests of persons not parties on
the record may frequently disturb the course of justice.
But the contrary practice was sanctioned in
Percheman's
Case, 7 Pet., and has been followed since. It is competent to
persons interested in the claim to employ the name of the original
claimant.
United States v.
Percheman, 7 Pet. 51;
United
States v. Patterson, 15 How. 10
The decree of the district court is affirmed insofar as
it
Page 62 U. S.
183
relates to the grant bearing date the 18th of June, 1841,
and executed by Juan B. Alvarado, and is reversed insofar as it
relates to the grant purporting to have been executed by
Micheltorena, at Santa Barbara, the 5th of February, 1845, and the
cause is remitted to the district court for further proceedings in
respect to the location of the grant of Alvarado within the limits
set forth in the grant and the accompanying map on file in the
case.
MR. JUSTICE DANIEL and Mr. MR. JUSTICE CLIFFORD dissented.
MR. JUSTICE CLIFFORD:
I respectfully dissent from so much of the opinion of the Court
as affirms that a proper legal foundation was laid at the trial for
the introduction of parol evidence to establish the existence and
authenticity of the Alvarado grant. When a concession of land is
made by the government to an individual under Mexican laws, as in
this case, a duplicate copy of the title paper is required in all
cases to be filed in the proper tribunal for registry, and unless
that is done, it is difficult to see how a legal registry can be
made. That duplicate copy is in the nature of an original paper,
and, after registry, becomes the foundation of all the subsequent
proceedings of the government to perfect the grant in the donee. It
was the duty of the purchaser in this case, in the absence of any
original grant, to produce that duplicate copy, if in existence,
and if not then to account for its loss. According to the draft
presented as a copy, proved by parol evidence, the grant was made
subject to the approval of the supreme government and of the
departmental assembly. It has never been decided that a grant
issued by a subordinate officer, subject to the approval of the
supreme government, was valid without such approval, and, in my
judgment, the doctrine cannot be maintained without subverting the
essential principles on which every well regulated government
rests. That grant was never approved either by the supreme
government or the departmental assembly. Under the circumstances
disclosed in the record, I
Page 62 U. S. 184
cannot concur that it is the duty of the United States under the
treaty to disturb the possession of the settlers while it appears
that there is better evidence to establish the right of the donee,
if any he had, to the land described in his concession. On the
proofs exhibited, I am of the opinion that the decree of the
district court should be wholly reversed.
MR. JUSTICE DANIEL:
I fully concur in the above opinion.