concurring. As the principal questions involved in these cases are the same, they have been argued and submitted together. For convenience of treatment, I have confined my attention, in this opinion, to the case of U. S. v. Carpentier; but the views expressed will apply to all.
The bill in this case in substance alleges that on the ninth of May, 1852, Victor Castro and Juan Jose Castro presented to the board of commissioners for ascertaining and settling private land claims in California, a petition praying a confirmation of their title to a certain sobrante or surplus of lands lying between the ranchos of San Antonio, San Pablo, Pinole, Moraga and Valencia. That in support of this claim, the defendant Carpentier, as attorney for the other defendants, presented to the board certain documentary proofs in the bill particularly mentioned.
That the board of commissioners considered the claim, and on the third day of July, 1855, rendered an opinion thereon, and, on the same day, rendered a final decree therein, adjudging “the claim of the said petitioners, Juan Jose and Victor Castro, to be valid, and decreeing that the same be and is hereby confirmed.”
That afterwards, on or about the sixth day of February, 1856, a certified copy of said proceedings and decree was duly filed with the clerk of the United States district court for the Northern district of California.
That on the fourth of April, 1856, a notice was filed from the attorney-general of the United States, to the effect that the appeal from the decision of the board of commissioners would be prosecuted by the United States.
That on the sixth of April. 1857, a further notice from the attorney-general was filed, to the effect that the appeal would not be prosecuted by the United States, and on the same day a stipulation was signed by Wm. Bland-ing, Esq., district attorney, and by the attorney for the claimants, consenting that the appeal be withdrawn and dismissed. Upon which notice and stipulation an order was made by the district court, dismissing the appeal and giving leave to the claimants to proceed under the decree of the board of commissioners as under final decree.
That since said date no other proceedings have been had in said case or claim.
The bill further charges that the documentary evidence so presented to the board by the claimants was forged, fraudulent, antedated, and fabricated—in pursuance of a conspiracy entered into by Juan Jose and Victor Castro, Jiian B. Alvarado and Francisco Arce, whose names appear on the said documents. That the said simulated petition and grant were so forged, fabricated, and antedated with the full knowledge and consent of the defendants, Carpentier and Adams, and that they have, from the date of said forgery, claimed and asserted title to the said sobrante lands, or a portion thereof;
The bill further charges, that in the proceedings before the board, the defendants, Caipentier, Adams and Castro, and their assistants, intentionally and fraudulently suppressed and failed to present to the said board the grants which had been made by the government of Mexico of the said ranchos of San Antonio San Pablo, Pinole, Moraga, and Valencia, with intent to conceal from the law agent and from the said commissioners the fact that the said pretended sobrante had been antedated as aforesaid, and that if said grants had been presented, it would have appeared that two of the said ranchos were not granted until several months subsequently to the date of the said pretended sobrante grant.
That by the said fraudulent misrepresentations, concealment, and suppression, the law agent was deceived and misled, and the United States deprived of all opportunity to contest the confirmation of said grant, on the grounds aforesaid, and the said commissioners were likewise deceived and misled, and induced to confirm the grant to the manifest detriment of the United States.
The bill further avers that the facts aforesaid were not discovered by the United States until long after the said grant had been confirmed, and not until within one year next preceding the filing of this bill, and “that said facts have been derived from the in*1116formation of living witnesses, from an examination of the archives, from court records, and from other sources.”
The prayer of the bill is that by the decree of this court the said grant be declared fraudulent and invalid, and that the confirmation thereof was obtained by fraud; that the dismissal of the appeal in the district court was obtained by fraud; that said grant and confirmation be annulled and set aside; and that said defendants, and each of them, be forever estopped from asserting any title to said lands under said pretended grant or decree of confirmation, purchase, or possession; and that the same are public lands of the United States.
The defendants have demurred to the bill on the ground that this court has no jurisdiction- of the subject-matter of the suit.
By the ninth article of the treaty of Guadalupe Hidalgo, it was stipulated “that Mexican citizens shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion, without molestation.”
To enable the United States to fulfill this obligation, it was necessary to provide means for ascertaining what lands in the ceded territory were held in private ownership, and of what lands the title passed to the United States.
The means adopted were the instrumental-ities and proceedings provided in the act of March 3, 1851.
Its title expresses its object. It is entitled "An act to ascertain and settle private land claims in California.”
The first section provides that, for the purpose of ascertaining and settling private land claims in California, a commission shall be constituted, consisting of three commissioners, etc. By subsequent sections, it is made the duty of the commissioners to examine the claims submitted to them, and to decide upon their validity, and rules are prescribed by which their decisions shall be governed.
The fourth section provides for the appointment of a law agent, whose special duty it shall be “to superintend the interests of the United States" in the premises, to attend the meetings of the board, to collect testimony in behalf of the United States, and to attend at the taking of depositions by the claimants; and no deposition is allowed to be read in evidence unless taken on notice in writing to file agent or to the district attorney, if the case is appealed to the district court. Other sections confer upon the district court jurisdiction to hear the cause de novo on appeal, and particularly prescribe' the manner in which appeals shall be taken and the proceedings conducted; and finally the right of appeal to the supreme court is given to either party.
The final decrees rendered by the commissioners, or by the district or supreme courts, or any patent issued under the act. are. by section 15, declared to be conclusive between the United States and the said claimants, but shall not affect the interests of third persons.
The submission of their claims to the tribunal thus constituted was not left to the choice of the claimants.
By section 8, each and every person claiming lands by virtue of any right or title derived from the former governments of California, was required to present the same, together with the documentary evidence and testimony of witnesses relied on. to the board; and the thirteenth section declares that all lands, the claims to which shall not have been presented to the commissioners within two years after the date of the act, shall be deemed, held and considered as part of the public domain of the United States.
This act, although benevolently designed, has in its practical operation imposed a grievous, though perhaps unavoidable, burden upon the holders of Mexican titles in this state. They have been subjected, to the expense and delay of a litigation which, after the lapse of more than twenty-five years, can scarcely be said to have terminated. To whatever criticisms the act of 1851 may be obnoxious, it certainly cannot be reproached for having failed to guard the interests of the United States in the amplest manner.
The appeals to the district court from the ‘decisions of the board gave to both parties, in every case, the benefit of a trial de novo on the merits, with the unrestricted right to take further proofs. Six months were allowed to the party against whom the board had decided to determine whether or not the appeal should be prosecuted. From- the decree of the district court an appeal was allowed to the supreme court, to be taken at any time within five years; and even- when the cause had reached the supreme court, it might still be remanded for further proof, in case the evidence with regard to the validity of the claim was deemed to be unsatisfactory. U. S. v. Teschmaker, 22 How. [63 U. S.] 392; U. S. v. Pico, Id. 404; U. S. v. Vallejo. Id. 416; U. S. v. Cambuston, 20 How. [61 U. S.] 59.
Such were the means adopted by the political department of the government to enable it to discharge its treaty obligations with intelligence and justice. It, in effect, called to its assistance the courts, and for that purpose invested them with a jurisdiction in all respects special and extraordinary, and which, except for the act, they would not have possessed. Foster v. Neilson, 2 Pet. [27 U. S.] 314; U. S. v. Arredondo, 6 Pet. [31 U. S.] 742; Beard v. Federy, 3 Wall. [70 U. S.] 492.
The treaty is a contract made by the nation acting through the political branch of its government. Its execution is confided to that branch of the government alone. And until it has provided the means and ordained the mode of its execution, no court has authority to decide what eases fall *1117within its provisions,' or what titles the United States is bound to respect. A for-tiori must the ordinary courts be without jurisdiction, when the political power has confided the whole subject to special tribunals, whose final decrees it has declared shall be conclusive.
In the case of U S. v. Arreddndo, 6 Pet. [31 U. S.] 742, Mr. Chief Justice Marshall says: “Should we he called on to decide on the validity of a title acquired by any Spanish grant not embraced by these laws (i. e., the laws of 1824 [4 Stat. 52] and 1828 [Id. 284], which conferred the special jurisdiction), we should feel bound to follow the course pursued in Poster v. Neilson, in relation to the stipulation in the eighth article of the Florida treaty, that the legislature must execute the contract before it can become a rule for this court.”
It is urged that a court of general equity jurisdiction may take cognizance of this bill, because of the fraud it alleges.
The fraud principally relied on is the presentation to the board of certain documentary evidences of title, which the parties presenting them knew to be forged and antedated.
But these documents were presented to a tribunal created for the sole purpose of investigating and deciding upon their validity; and of this, genuineness was the first and indispensable element. The question, therefore, presented to this court on the allegation of fraud, is precisely the question presented to the board and to the district and supreme courts, and of which the act gave to those tribunals exclusive cognizance; and the maintenance by this court of its jurisdiction in this case involves the assumption of jurisdiction to review and reverse the final decisions of the board, the district and the supreme courts, on the very issues presented for their determination.
Nor is this all. The jurisdiction of this court is not claimed to exist by reason of its relation to the district court as a superior tribunal, nor because the law has committed to it any authority to pass upon titles of this description.
• Its inherent jurisdiction as a court of general equity powers is alone appealed to. But if it derives its jurisdiction from that source alone, no reason is perceived why the attorney-general might not, had he seen fit, have invoked the same jurisdiction in any state court to which similar powers have been confided. And the anomaly might thus have been presented of a state court determining the rights and duties of the United States under a treaty, and reviewing and reversing the decision of the supreme court of the United States on a subject-matter of exclusively national concernment, and of which the political department of the national government or the tribunals of its selection have exclusive cognizance.
The provision in the act of 1851, which de-dares the final decrees of the board and of' the district and supreme courts to be conclusive as between the United States and the claimants, has already been cited.
It will not be disputed that, if the allegations in this bill are sufficient to show jurisdiction, every case heretofore decided under the provisions of the act may be re-opened for examination in this court on its merits, whenever the attorney-general or those to whom he may delegate his authority consider themselves justified in alleging that false- and fabricated documentary evidence of title has knowingly been presented.
Before this can be allowed, we must first deprive the clause in the act, which declares-that final decrees made under its provisions-shall be conclusive, of all significance and effect..
It is urged, however, that all final judgments of courts of competent jurisdiction are conclusive, and that the eonclusiveness attributed by the act to final decrees • in this class of eases is no greater than that possessed by other final decrees. All may be impeached for fraud; for “fraud vitiates, the most solemn judgments.”
The general proposition may be conceded, but the question recurs: Is the fraud charged in this bill such as a court of general equity jurisdiction can take cognizance of under the circumstances of this case, and such as will destroy the conclusiveness of the final decree in the former proceedings?
The validity of an alleged Mexican or Spanish claim depends upon the genuineness of the title-papers, and upon their legal effect as translative of title.
The first is the more difficult, and frequently the only point in controversy.
To deny the conclusiveness of the decree on the question of genuineness is to deny it on the principle point submitted for adjudication.
If Mexico, solicitous to secure the rights of its citizens in the ceded territory, had demanded of the United States what means the latter would adopt for their maintenance and protection; and the United States had stipulated in the treaty that the means should be those provided in the act of 1851. and had further declared that the investigation should be conducted as between equal litigants before a court of justice, and that the result of the inquiry should be conclusive of the rights of both parties—would it be compatible with good faith for the United States to contend that under these stipulations there was tacitly reserved to itself a right, not conceded to its antagonist, to reopen and re-examine before a tribunal not mentioned in the treaty the identical questions which it had agreed should be finally determined in another mode; and that it could do this at any time, however remote from the date of the final determination, and no matter how ample had been its opportunities for investigation, on the plea *1118that the statute of limitations does not run against the government, and that no laches can he imputed to a sovereign?
Could it maintain the true construction of the treaty to he that the final decrees of its tribunals adjudging grants to be genuine should be conclusive, provided the grants were genuine, and that that question it could always re-open before the ordinary tribunals ?
It is believed that no representative of the political, department of this government would contend for such a construction of the treaty stipulation supposed; and a similar construction of identical provisions in an act of congress must be equally rejected by the court.
To accept it would be to make the title of the act, “An act to ascertain and settle private land claims in California,” a misnomer, and the pledge that the result of the proceedings it directs shall be conclusive a delusion.
■ By the treaty with Spain of February 22, 1819 [8 Stat. 252], the United States exonerated Spain from all demands in the future on account of certain specified claims of its citizens, and agreed to make satisfaction of the same to an amount not exceeding four millions of dollars. To ascertain the amount and validity of these claims, it was stipulated that a commission, to consist of three commissioners, etc., should be appointed “to receive and examine and decide upon the amount and validity of all claims included with the description mentioned.”
With respect to the decisions of these commissioners, the supreme court says;
•‘The object of the treaty was to invest the commissioners with full power and authority to receive, examine and decide upon the amount and validity of the asserted claims upon Spain for damages and injuries. Their decision, within the scope of their authority, is conclusive and final If they pronounce the claim valid or invalid, if they ascertain the amount, their award in the premises is not re-examinable. The parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim cannot again be brought under review in any judicial tribunal. An amount once-fixed is a final ascertainment of the damages or injury. This is the obvious purport of the language of the treaty.” Comegys v. Vasse, 1 Pet. [26 U. S.] 212.
If we substitute for the word “treaty” in this extract the words “act of 1851,” the language will admit of almost literal application to the case at bar.
The claims to be presented to the commission under the treaty with Spain were claims to indemnity for injuries. The claims to be presented to the board under the act of 1851 were claims to lands. In the former case, the treaty itself provided for the constitution of the commission. In the latter, the treaty stipulated in general terms for the protection of the inhabitants of the ceded territory in their rights of property, and an act of congress confided the duty of ascertaining those rights to a commission established by its own authority, with appeals to. the national courts. But these differences make no distinction in principle between the two cases.
The authority of the commission in the one case, and that of the board of commissioners and the courts in the other, are alike exclusive. And the awards of the one and the decrees of the other are alike conclusive of the rights of the parties. The assumption of a jurisdiction by a court of equity to reexamine final decrees made under the act of 1851 involves in principle the assumption of jurisdiction to re-examine all awards made by special commissions' constituted under treaties with foreign nations.
Among the great number of claims to lands in the territories ceded to the United States by France and Spain, it is not to be supposed that many fraudulent titles may not have escaped the scrutiny of the tribunals appointed to determine their validity. It is a significant circumstance, that in no case, so far as the judicial history of the country informs us. has the United States, on discovering the fraud, attempted to cause the re-examination before the ordinary tribunals of a finally confirmed claim.
In the Case of Sampeyreae, 7 Pet. [32 U. S.] 222, which is the only reported case where a re-examination was made, it was done by virtue of a special act of congress, which authorized the proceeding, not before the ordinary tribunals, but by bill of review in the special tribunal upon which the original' jurisdiction over the cause had been conferred. Whether or not by virtue of that jurisdiction it might have entertained a bill of review to set aside its own decree, the supreme court does not decide. An act of congress seems to have been deemed necessary to confer the authority. But it is nowhere intimated that any court of equity powers, but upon which no authority to pass upon the validity of claims of that description had been conferred, could have entertained such a bill, or in any other form have re-examined the questions finally decided by the special tribunal.
The case was one of admitted forgery. But it was nevertheless contended by counsel, that the decree of the court being conclusive between the parties, congress had no power to authorize the review, or to disturb vested rights. The supreme court, without passing upon the general proposition, overruled the objection, on the ground that Sampeyreae was admitted to be a fictitious person, and that, therefore, there had been no real parties before the court between whom the decrees could be conclusive.
The position taken by counsel in this cast may, perhaps, be extreme and untenable. la deciding the case at bar, it is not necessary to assert that, where a fraudulent title haa *1119been confirmed, the United States is entirely without remedy, nor that the political department of the government may not, if it sees fit, invest the courts with authority to re-examine the questions which, as the law now stands, remain finally decided in these cases. But, until congress has so expressed its will and conferred the requisite authority, it may confidently be affirmed that the ordinary tribunals are without jurisdiction.
The counsel for the United States has drawn a vivid picture of the avowed forger glorying in his crime, defying the justice he has duped, and demanding that the officers of the government shall, by issuing to him his patent, assist him in consummating his fraud.
In discussing a dry question of jurisdiction, such appeals are, perhaps, not quite appropriate. But, if the practical bearings of the questions to be decided are fit subjects for consideration, it may be observed that the question is not whether an admitted forger shall be allowed to enjoy the fruits of his crime (for the demurrer admits the truth of the allegations of the bill only hypothetically, and for the purposes of the argument), but whether every title in this state derived from the former governments shall be subjected to the ordeal of a new litigation whenever the attorney-general, or those who may obtain his ear by, it may be, false or interested representations, sees fit to allege in an unsworn bill that the documentary evidence on which the title rests is forged or antedated.
If, without the authority of congress, and on such representations, a cloud can be east upon titles in this state, the effect would be little short of a public calamity. The repose of ancient possessions would be disturbed, and the security of titles, long since and after protracted litigation. adjudged to be valid, would be menaced. A tremendous weapon of vexation, oppression, or extortion might be placed in the hands of unscrupulous persons, and the horde of professional witnesses which has so long infested the courts in this class of eases might resume their trade, and again find a market for their venal testimony.
Compared with evils such as these, the public benefits to be derived from the exposure of the few frauds which may have eluded the vigilance of the court or officers of the government would be insignificant.
It has not been thought necessary to enter into a detailed examination of the cases cited from the English and American reports which determine when and under what circumstances equity will relieve against a judgment obtained by fraud. The question before the court turns upon considerations so peculiar to itself that adjudged cases in England bear to it but a faint and remote analogy. None of them involve the question which is deemed the principal one in this case, and the correctness of the decisions in some may be open to doubt or discussion, “Nil agit exemplum litem quod lite resolvit.” Perhaps the nearest analogy is that afforded in the case of a forged will decided to be genuine by a probate court. Even in such a case the supreme court, following the English authorities, has held that equity has no jurisdiction to avoid the will or set aside the probate. Case of Broderick's Will, 21 Wall. [88 U. S.] 303.
In the ordinary course of proceedings in probate courts, the will is often submitted by the executor in the absence of the parties interested to contest its validity, and the time allowed the latter to intervene is necessarily short. But in cases submitted to the board, in the compulsory litigation which the act of 1851 required, the opposing party is in court demanding the investigation of the genuineness of the claim, and consenting in advance to be bound by the decisions of tribunals of its own appointment.
To relieve against a fraud effected by the forgery of a will, as of any other instrument, falls within the ordinary scope of the powers of a court of equity. Its jurisdiction is ousted because the law has given to another tribunal exclusive jurisdiction over the subject. But in the eases at bar the jurisdiction fails, not merely because congress has confided to other tribunals exclusive jurisdiction over the subject, but also because this court would have no power, even if such exclusive jurisdiction had not been vested elsewhere, to decide what are the rights and duties of the United States under the treaty, and to what cases its stipulations apply.
The cases of Johnson v. Towsley, 13 Wall. [80 U. S.] 91, and Niles v. Anderson, 5 How. (Miss.) 366, are much relied on by the counsel for the United States. On examination, they will be found to have no application to the case at bar.
In Johnson v. Towsley, and the succeeding case of Samson v. Smiley [13 Wall. (80 U. S.) 91, note], it was merely held that when a party is deprived of his right of pre-emption, otherwise perfect, by a mistake of law or fact on the part of the land department, equity will relieve, and, if a patent has been issued, control it in the hands of the patentee for the benefit of the party rightfully entitled.
In the case of Niles v. Anderson, it was held that where a person had fraudulently obtained from certain United States officers certificates to an Indian deed, which were necessary to give it validity, equity would restrain him from prosecuting an ejectment suit founded on the deed against a party in possession holding under a prior equitable deed from the same Indian. It is obvious that these authorities throw no light upon the question of the conclusiveness of a final decree of confirmation under the act of 1851, or on that of the jurisdiction of this court, as a court of equity to set aside those decrees, or enjoin against their use. Where in the course of a proceeding before a court having jurisdiction of the subject-matter of the controversy, a judgment is set up as an estoppel, and conclusive of the rights of the parties, its effect may be avoided by proving that it was pro*1120cured by fraud and collusion. Such was the celebrated Case of the Duchess of Kingston, in which it was decided that a judgement obtained by fraud would not stand in the way of prosecution for bigamy—that the suit in the ecclesiastical court was a contrivance merely —a link in the chain of fraud and in truth no judgment—according to the phrase used by Lord Loughborough: “Fabula non judicium hoc est. In scena non in foro res agitur.
But here the jurisdiction of the house of peers to try the defendant for the crime of which she was accused, was undoubted. The judgment of the ecclesiastical court was relied on as judicially establishing that the alleged first marriage had not been contracted. The judgment was disregarded because it had been collusively obtained in a sham suit.
But in suits at bar there is no subject-matter of which the court has jurisdiction, in the trial of which the validity of the decrees now assailed is questioned collaterally or incidentally. The very object and prayer of the bills is to obtain a decree declaring the original grants fraudulent and invalid, the lands covered by them to be public lands of the United States, and that the decree of confirmation be annulled and set aside. In the brief filed by the counsel for the United States, he has disclaimed all right to demand the greater part of the relief prayed for in the bills. But he insists upon the right to a decree enjoining those defendants from availing themselves of the decree of confirmation, and from suing out a patent. He admits that as to innocent parties who may have purchased since the final decrees of confirmations, the decrees will stand, and he suggests that they may even obtain patents for their lands, in their own names or in those of the guilty defendants.
But this change in the form of the relief demanded leaves the force of the objections to it unimpaired. Before the court can grant it it must first pass upon the genuineness and validity of the original grants—a subject over which, as has been shown, it has no jurisdiction. In truth, stripped of all disguises, these proceedings are in effect appeals to this court from the decisions of the special tribunals, or they are bills of review to set aside the decrees for newly discovered evidence, and the allegations of fraud, which are supposed to give jurisdiction to the court, only reveal more clearly the true nature of the suits.
It is believed that the foregoing conclusively shows that this court has no jurisdiction to inquire into the fraud principally relied on, because:—
1. The inquiry would involve a re-examination of the very question, exclusive jurisdiction to decide which, has been confided to other and special tribunals;
2. Because the decisions of those tribunals are declared by law to be conclusive of the rights of the parties;
3. Because even if no such jurisdiction had been confided to special tribunals, this court would be without authority under its general equity powers to deterinine what cases fall within the protecting clause of the treaty, or when and in what mode the political department of the government should fulfill its treaty stipulations.
But waiving for the moment all considerations arising out of the special circumstances of this case, let us briefly examine the more general positions assumed by the counsel of the United States. It is in effect contended that where a party has been forced to commence a suit to establish the genuineness of a document, and the suit is tried on that issue, his advensary may omit to bring forward proofs of its fraudulent character which are in his own possession, and which by reasonable diligence *he might have produced; and afterwards, when judgment has gone against him, may ask a court of equity to set aside that judgment and retry the same issue, not on the ground of newly discovered evidence which could not by reasonable diligence have been procured, nor on the ground of fraud practiced in the course of the proceedings, but on the allegation that the document adjudged to be genuine was in fact fraudulent, and that he believed in and was misled by the assertion of its genuineness made by his antagonist. And further, that this belief in the assertions of his adversary should excuse him for his laches in not producing proofs of the fraud in his own possession on the trial of the suit which he has himself compelled his adversary to bring to determine that very issue.
A statement of this position is its own refutation. It is believed that a bill to set aside a final judgment, and to obtain a new trial on such grounds and with such an excuse for laches, would be dismissed by a court of equity without hesitation. On the point whether laches with which a private party would clearly be chargeable, can in this case be imputed to the United States, some suggestions will hereafter be offered.
Again: the allegation in the bill chiefly relied on is, that certain title-papers were forged. But the same bill avers that they have been adjudged to be genuine by a court of competent jurisdiction in a proceeding instituted to try that very question. While that judgment stands, they are in legal contemplation genuine. The proceeding on which they were so adjudged was in the nature of a proceeding in rem to determine the status of the property as public or private land; and the decree, until set aside, “renders the fact what the court adjudicates it to be.” 2 Smith, Lead. Cas. 498. It is true that a decree may be avoided by showing that it was obtained by fraud. But there must be fraud in its concoction, such as collusion between the parties, or other circumstances which would establish that what seemed a decree was, in fact, no decree—that it was fabula non judicium. It cannot be shown by re-examining on its merits the very question decided by the decree. *1121’L'o meet this exigency, tlie draughtsman of the hill has introduced some allegations, apparently intended to make out a case of fraud used in obtaining the decree, or in its concoction, that is, of collateral fraudulent acts extrinsic to the merits of the cause.
It is alleged that the defendants fraudulently .suppressed and concealed from the hoard the grants for the ranchos of San Antonio, Pinole, San Pablo, Moraga, and Valencia, with intent to conceal from the board and the law agent of the United States the fact, which their production would have disclosed, that two of them were not granted until subsequently to the pretended sobrante grant. On this allegation it is to be observed:
1. That the fact alleged to have been concealed would have been wholly inconclusive if not immaterial. It is weE known that in many cases ranchos were established and occupied under permissions to occupy or other provisional titles, and the rights of their owners recognized by the government in subsequent grants of adjoining lands, long in ad-vanee of the issuance of the final title. In some cases, the final title was never asked for nor obtained. A notable instance of this is found in the case of Alviso, whose claim was confirmed by the supreme court, on the strength of a permission to occupy, and a very ancient possession. [U. S. v. Alviso] 23 How. [64 U. S.] 318.
2. The documents alleged to have been suppressed were then and have ever since remained in the archives. They were, therefore, in the exclusive possession of the United States.
The allegation is thus, in effect, that the defendants concealed documents among the pub-lie records of the country, and suppressed them while in the exclusive possession of their adversary.
3. The very nature of the defendants’ claim being for a sobrante resulting from the grants of certain specified ranchos, by inevitable reference directed the attention of the board and of the law agent to those grants, and rendered necessary an inquiry into the fact of their existence and their extent before the merits of their own claim could be determined.
4. The records of the board and of the district court show that in fact every one of these grants had been presented to the board for confirmation more than two years before the date of the decree in this case, and that all had been confirmed some months previously to that date, except one, which was subsequently confirmed on appeal by the supreme court.
But, even if the alleged fraud were undeniably such as would ordinarily vitiate a judgment for fraud in obtaining it, as in cases where the judge is interested or there has been collusion between the parties in a pretended, and not a real suit, fraudulent suggestions that the parties to the suit were before the court contrary to the fact, and the like, the complainant could not in this proceeding obtain the relief prayed for.
It is not enough that fraud in obtaining the decree be proved. The propriety of the decree must still be investigated (Story, Eq. PI. § 426); in other words, the validity of the claim. The fact that a fraud in procuring the decree has been committed does not convert the land into public land of the United States, nor does the law punish such practices on the part of the claimant by a forfeiture'of his estate. If the land was in fact private land at the acquisition of the country, the United States has not been injured by the fraud, however gross. Before, therefore, the court can declare the land to be public land, the validity of the claim must be investigated. And that question congress has conferred upon this court no power to determine.
If it be said that this court may set aside the decree, and restore the parties to their former situation, as is the practice of courts of equity (Story, Eq. PI. ubi sup.), the answer is that that is impossible. For the board which made the decree has ceased to exist, and the act of congress confers no power on the district or supreme court to entertain bills of review to set aside their decrees in this class of cases; and, even if this fact were otherwise, it would be conclusive to show that the relief now prayed for must be sought in those courts, and not in this.
It is contended on behalf of the United States that the statute of limitations does not run against the government, and that laches cannot be imputed to it. The bid, however, alleges various facts in apparent excuse or explanation of any laches of which the government may have been guilty.
Whether these matters, if true, would constitute a valid excuse, and whether their truth is consistent with notorious facts disclosed by the records of the board, and of the district and supreme courts, and by the judicial history of the country, it is not necessary to inquire.
Nor is it necessary to determine whether the general principle that laches cannot be imputed to the government applies to eases of this nature. It may, however, be suggested as worthy of consideration, whether, if the act of 1851 be construed as tacitly reserving to the United States the right to reexamine and reverse in other tribunals the decrees which that act declared should be conclusive, the second proceeding should not be regarded as a part of, or a sequel to, the first, and that in it, as in the first, the United States has consented to be bound by all the rules which control the rights of equal litigants before a court of justice. It may also be suggested whether it is not a fundamental and inherent principle of the court of equity, at whose hands relief is *1122.now sought, to refuse to interpose in behalf of stale demands, not because they are barred by the statute of limitations, nor because laches can be imputed to the complainant, but because from the lapse of time and the nature of the case it is probable that justice cannot be done. If this be the true ground of the refusal of equity to interfere in such eases, no distinction can be drawn, between suits by the government and those brought by private persons. The ascertainment of the truth may be as impracticable in the one case as in the other. If this principle be applicable to any casé where the government is a party, it would seem to be so to the case at bar1—so far at least as the allegations of the bill are to be proved by oral testimony.
• The grant, if genuine, was made in 1841, more than thirty-five years ago, when the country was sparsely inhabited, and knowledge of the transactions was necessarily confined to a small number of persons. To establish the genuineness of the grants, the claimants would have to depend upon the survival of these witnesses after so long a period, the accuracy of their memories, and their willingness under great temptation to speak the truth. They would labor under disadvantages nearly as great when called on to meet testimony in support of the allegation that the grant was fabricated in 1851.
But it is unnecessary further to consider this point, for I am of opinion that the objections to the jurisdiction would be insuperable, even if these bills had been filed ou the very day on which the decrees of confirmation became final.
It is objected that the attorney-general has no authority, by virtue of his office, to commence this suit in the name of the United States. The court is not unmindful that the decision of the question whether the highest law officer of the government has exceeded the limits of his official authority involves grave and delicate considerations. In the view taken of the other questions discussed in this opinion, it is unnecessary to decide it.
But it may be remarked that the institution of these suits seems to commit the United States to a course of proceeding, and to the assertion of supposed rights in a case where it must be admitted that the political power has the exclusive right to determine what shall be the attitude of the government with regard to the claims, and whether this is an appropriate and expedient mode of asserting its rights and performing its obligations under the treaty. If all the titles of this state derived from the former governments were subjected to an indiscriminate attack, like that in the case at bar, diplomatic remonstrance or political complications might result, and the government might be compelled reluctantly to adopt or formally to disavow proceedings, on the propriety of taking which the political branch of it had never been consulted.
The relation of the attorney-general to the United States is not wholly dissimilar to the ordinary relation of attorney co client. That client is in these cases the legislative branch of the government, whose exclusive province it is to determine when and how the political obligations assumed by the nation shall be fulfilled. Until authority is given by that branch of' the government, it may be doubted whether the general authority of the attorney-general to represent the United States in ordinary litigations is sufficient to enable him to institute suits like those at bar.
It will not be disputed that congress had the exclusive right to adopt any means it thought fit to ascertain and discharge its treaty obligations, whether by committees of congress, special commissions, or by invoking the aid of the regular national tribunals. If, before congress had taken any action on the subject, the attorney-general being of opinion that certain alleged titles were fraudulent, or so inchoate and incomplete that the claimants had no right of property which the treaty protected, had instituted ejectment suits in the name of the United States against the parties in possession, might it not be urged that he had no more authority to commence the suits than the court would have jurisdiction to try them? And may not the same objection be urged when, after exhausting the ample powers with which he is invested by the act of 1851, he commences, without the direction of congress, an analogous proceeding to attain the same object?
The force of these objections is not diminished by the consideration that, from the necessities of his position, the attorney-general is unable personally to examine into the merits of every suit that may be brought, and that he is forced to delegate the authority to use the name of the United States, in form, to the district attorney, but in fact to special counsel, who, in the cases at bar, has given bonds to pay the expenses of the litigation, and who may smite or spare or threaten any title in this state, at his discretion; or, assuming him to be actuated by the highest motives, according to the conclusion he may on investigation reach, as to the propriety of the final decree of the board, the district or the supreme courts, adjudging the title to be genuine. If this power should by chance fall into unworthy hands, it might afford the opportunity for enormous abuses.
It is objected that the bill is unsworn. If, however, the suit is properly brought in the name and by the authority of the United States, verification of the bill is unnecessary. But it may be observed that if the attorney-general has thought it his duty to authorize these proceedings, it would have been far more satisfactory to the court if the allega-: tions of these unsworn bills had been au*1123thenticated by Ms own signature, affixed to them under the sanction of his personal and official character, and not merely hy those of the district attorney, whom he has ordered to bring the suit, and of the special counsel, to whom he has delegated his authority. An assurance would thus have been afforded of .the attorney-general’s belief in the allegations in the bills, and in the existence of rights on the part of the United States which the bills seek to enforce; that the suits are really, and not merely nominally, brought by the United States to protect its rights, and not merely to promote the interests of private individuals or corporations; an assurance somewhat weakened by the circumstance that the attorney-general seems to have considered the rights of the United States so doubtful, or its interest so unimportant, that he has directed the district attorney to commence these suits “on the giving, by the said John B. Howard, security for, or depositing a sufficient sum to defray, all expenses which may be incurred in said legal proceedings.” Bonds have accordingly been given by John B. Howard, special counsel for the United States, which contain the recital just quoted.
The lands covered by the grants in these cases are many thousand acres in extent. The bills pray that they may be adjudged to be public lands of the United States. It is not to be supposed that, if the attorney-general were persuaded that so large and valuable a property belonged to the United States, he would have made the assertion of its rights to depend upon the willingness or ability of private individuals to defray the expense of the litigation. The bill filed in the case of U. S. v. Throckmorton contains the following extraordinary “notice”:
“And the said district attorney, in behalf of the United States, hereby gives notice that, in the event of a decree of this court that the said grant was false and invalid, and that the said confirmation thereof was obtained by fraud, and that the said grant and confirmation be annulled and set aside, * * * and the said lands are public lands of the United States, that the ‘United States will in such ease waive all her right and claim to that portion of said lands on which the town of New Saucelito is located, and also that portion of said lands on which the town of Old Sauce-lito is represented, as represented on said Exhibit A.’ ”
“The area and quantity” of these lands is stated not to exceed six hundred and forty acres. To whom this relinquishment of the title of the United States to a large and valuable tract of land is to be made, on what grounds, and by what authority, the bill does not state. It will surely not be claimed that the attorney-general, or his representative, has not only the right, by instituting these proceedings, to cloud every title in this state with the menace of a litigation, but also that he can waive, at his discretion, the rights of the United States to lands adjudged to be public lands. The power to donate the property of the nation is elsewhere vested.
The conclusions embodied in the foregoing may be summarized as follows:
The demurrer must be sustained because:
1. This court has no jurisdiction to deter; mine the genuineness and validity of a Mexican land claim, that jurisdiction having been exclusively vested in other and special tribunals.
2. The final decrees of those tribunals are declared by law to be conclusive, not merely as concluding the litigation, but conclusive of the rights of the parties.
3. Even if no such exclusive authority liad been conferred on the special tribunals, this court would have no jurisdiction to determine how the political department of the government shall fulfill its treaty stipulations, or to what cases those stipulations apply; and especially in cases where the grants are inchoate.
4. A court of equity cannot interfere to set aside a judgment for fraud in procuring it, when the fraud alleged is the presentation to the court in which judgment was obtained of false documents, and the sole or principal issue tried by that court was upon the genuineness of the documents so presented.
5. The allegations of fraudulent concealment and suppression, which might, if the allegations were true, be deemed to constitute “fraud in procuring the decree,” are shown by the bill itself, and the nature of the documents alleged to have been concealed, to be destitute of foundation in fact.
6. That even if the bill showed that the decree had been procured by fraud of the grossest character, tMs court would still be without jurisdiction; for it has do authority to pass upon the propriety of the decree, i. e., to decide upon the validity of the claim, nor to remand the parties to any other forum where that question may be determined.