dissenting: I concur with Mr. Justice Catron and Mr. Justice Grier, for the reasons given by them, and for other reasons expressed in the printed opinions of Jirdge *213McAllister and Judge Hoffman, in dissenting from the judgment of this Court just announced in this case.
I think that the claim and title of the petitioner, Andres Castillero, to the mine known by the name of New Almadén, in Santa Clara County, Northern District of the State 'of California, is a good and valid claim and title, and that the said Andres Castillero and his assigns are the owners thereof, and of all the ores and minerals of whatsoever description therein in fee simple. In my judgment, also, I concur with the learned Judges of the District Court, &c., &c., that the said mine is a piece of land embracing a superficial area, to be measured on a horizontal plane, equivalent to seven pertenencias, each pertenencia being a solid, of a rectangular base, two hundred Castilian varas long, of the width established by the Ordinanza de Minería of 1783, and in depth extending from and including the surface dow’n to the centre of the earth; said pertenencias to be located in such manner as the said Andres Castillero or his assigns may select, subject to the following conditions: First, that the said pertenencias shall be contiguous, that is to say, in one body; and secondly, that within them shall be included the original mouth of the mine, known as New Almadén.
Having thus fully expressed my concurrence in the decree rendered by the District Court in favor of Andres Castillero and his assigns, and my dissent from its reversal by this Court, I frill add that, in my opinion, it is fully shown by the testimony and documents in the record that in no thing done by Castillero or his assigns, in connection with the mining claim, is- there any proof of fraud; and I believe, from the testimony and from those documents, that the petitioner and his assigns have rights under the 8th Article of the Treaty with Mexico, of which they cannot be deprived by any judgment rendered by this Court or its proceedings upon the record brought into this Court by appeal.
I adopt and herewith annex to this dissent the opinion of his Honor, Ogden Hoffman, District Judge, (as embodied in the "ecord,') as ttm best wav of showing my appreciation of the law *214and merits of this case, and of his judicial learning and i isearch in connection with it:
The claimant in this case asks, the confirmation of his title to—
First. A mine of quicksilver situated in Santa Clara County, and called the mine of “New Almadén,” including three thousand varas of ground measured in all directions from the mouth of the mine.
Second. Two square leagues of land situated upon the land of. the above mentioned mining possession.
It is objected that this Court has no jurisdiction to decree a confirmation of the former claim. The objections relied on by ■the United States are two:
1. That by the Act of 8d March, 1851, the jurisdiction of tins Court is confined to cases where the interest claimed is a fee simple interest, or such' as in equity should be converted ini o one, and that such interest was not held by the owner or grantee of a mine by Mexican law.
2. That the subject-matter of this claim is not “ land," within the meaning of the Act.
The first objection is not only wholly unsupported by the words of the Act, but it is inconsistent with the sense of justice and .the sacredness of treaty stipulations which we must presume to have actuated Congress.
•1. The Act declares that every person claiming lands by virtue of any right or title derived from the' Spanish or Mexican Governments shall present his claim, etc.
There is thus no specification as to the nature of thé claim, except that it must be to “ land" nor of the estate or interest claimed. It may be leasehold or freehold, conditional or indefeasible, for years or in fee.
2. That such estates constitute property, in its fullesl sense, will not be denied.
■ If, then, claims to such estates in lands cannot be presented for confirmation under the-Act of 1851,' or if presented are to be rejected, this, species of property in land is not merely unprotected, but by the terms of the Act it is confiscated; for the 13th *215Section provides that all lands, the claims' 'to which have been finally rejected, or which shall not have been‘presented within two years, shall be deemed, held and considered ás part of the public domain of the United States.
It cannot, therefore, be imputed to Congress that it meant to declare all lands public property the claims to which were not presented, and at the same ' time, restrict the right of presenting . claims tc a limited number of cases, thus ignoring and confiscating- all rights of property in land but those of a particular description, when all were equally sacred under the laws of nations and the stipulations of the Treaty.
8. But even if the jurisdiction of this Court were limited, as supposed, the estate of the owner of a mine under the Mexican and Spanish Ordinances was of at least as high a decree as a determinable fee at common law, and the concession of a mine conveyed to him full property in the very substance of the mine.
As, however, the nature of the mine-owner’s estate in a mine cannot be considered without examining and ascertaining what was the nature of a mine itself, and whether it constituted “ land,” as that term is used in the common law, and in the Act of Congress, the point will be treated of in considering the second objection to the jurisdiction of the Court.
2. Is a mine land within the meaning of the Act of Congress ?
“By the civil law,” says Gamboa, “all veins and mineral deposits of gold and silver ore, or of precious stones, belonged, if in public ground, to the Sovereign, and were part of his patri-. mony, but if on private ground, to the owner of the land, subject to the condition, that if worked by the owner he was bound to render a tenth part of the produce to the Prince as a right attaching to his Crown. It subsequently became an established custom in most kingdoms, that -all veins of the precious metals, and the produce of such veins, should vest in the Crown and be held to be a part of the patrimony of the King or Sovereign Prince. That this is the case with respect to the Empire of Germany, the Electorates, Prance, Portugal, Arragon, and Cata Ionia, appears from the laws of those countries, and from the authority of various authors.” 1 Heath. Gamboa, 15,
*216The reason^ fqr ¡attributing to the Sovereign this right of ptbr perty in a .part of the .soil of the land of his subjects, it is not necessary to recapitulate; but that the distinction, between the ownership of. the' .surface, and that -of the mines or minerals beneath it, was recognized at a very early period, appears from ■ the law of the Partida, which declares that the property of the mines shall npt pass in a grant of the land by the King, although no.t excepted out of the grant — and even if included in it, the grant shall be valid as to mines only during the life of the King who made it; and a similar rule prevailed in England with respect to mines of the royal metals, which alone were held to belong to the Sovereign by prerogative.
The distinction thus drawn between the right of property in the surface, and that in the minerals beneath, is founded on the essential difference in the qualities of the various substances of which the earth is composed. It has accordingly been recognized in the jurisprudence of all nations.
In Spain, as we have seen, mines do not pass in grants of land (fundos) by the Sovereign, unless particularly mentioned. (1 Heathf. Gamb. 132.) To the same effect is Solorzano, (Pol. Ind. lib. 6, ch. 1 No. 17,) who says: So that, although private persons may allege and prove that they possess such lands (tierras) and their appurtenances by special gift and concession of the Prince, no matter how general may be the words in which the grant is made, this will not of itself be of any avail or advantage to them for acquiring or gaining thereby the mines which may be discovered in the lands, unless it is so specially provided and expressed in said grant;” and Colmeira, (Der. Adm. Es'p.) observes: “Jurisconsults and Publicists agree in the opinion that it is proper to distinguish in the soil (en el suelo) the right, of property in the superficies (de la superficie) from that in the depth (del fondo.) ■ Truly, the man who acquires a piece of land, gives not the least labor nor advances 'the smallest capital in consideration of the riches (las riquezas) which it' may conceal. He examines its fertilty, its situation, its extent, and all the circumstances which determine its value as a building-lot or agricultural land, but he does not take into account the mines *217which, perchance, it may conceal in its bowels. There is not, then, the least relation betweeñ the proprietor (of the land) and the subterranean matter from which any right can be deduced.”
So, Lares, a Mexican author, in his Derecho Administrativo, p. 93, remarks: “ The law then, has not recognized property in the mine to be in the owner of the soil, but has made the pro perty in the mine to consist in the grant which the Nation’ makes to him who registers.or denounces it conformably to the ordinance.”
By the French law'of 1810, the same distinction is recognized, and all mines of gold, silver, platinum, lead, mercury, etc., are declared not to belong to the owner of the soil, but to be governed by the Mining Laws (Teulet’s Sup. to Codes, Yerb. Mines.) “ From the moment,” (says the author last cited, “ when a mine shall be conceded even to the proprietor of the surface, this property shall be distinguished from that of the surface, and thenceforth considered a new property,” and, Le Guay, in his Thesis on Mining Legislation, says he. “ agrees with Mirabeau in the proposition that any legislation which does not recognize two species, of property, one in the surface of the earth, and the other in its depth, would be'absurd.” • P. 125.
In his work on the General Jurisprudence of Mines, M Blavier observes: “ It is a truth which has been admitted for a long time, that the preservation and prosperity of mines depend essentially on the adoption of a system of laws calculated to reconcile the interests of the public with that of those who work them. * * * It is these conditions which the governments of ancient and modern States have sought to fulfill in admitting, nearly all of them, that the Sovereign alone has the right to dispose of the public property in mines, or to confer on others the useful enjoyment thereof.”
This regalian right, or right reserved by the whole State to dispose of subterranean property as public property, independent of the private ownership of the land which conceals it, seems to have been recognized in Germany .from the earliest periods; (Caicrin. Dr. Pub. des Mines en Allemagne, p. 2;) and M Bh.vier remarks: "It is, therefore, not surprising that this *218regalian right should have been confirmed by nearly all the governments of the northern countries.”
But it is unnecessary to multiply authorities in support of a principle so universally recognized. .
From the foregoing citations it is clear—
1. That the grant or ownership of the superficies or land which contains the mine, confers no right of property to mines in the bowels of the earth, or even on its surface; and
2. That this property in the mines is, by common consent of .almost all modern States, deemed to be vested in the State represented by the Sovereign, and is a regalian right. Indeed, it would seem, that these two propositions are sufficiently demonstrated by the fact that mining ordinances exist in almost every State possessed of considerable mineral wealth; for those ordinances are but the dispositions made by law for the exercise of this regalian right, or right of property in all mines, whether in public or private land.
Having thus established that the right of property in mines is wholly distinct from the ownership of the soil, and that the former remains in the Sovereign, notwithstanding the possession of the latter by a private person, we proceed to inquire :
1. Did this right to the mine constitute a right to “land,” as that term is used in the Acts of Congress ?
2. If so, did the miner by registry and denouncement acquire an estate in “ land,” and what was its quantity and quality ?
These two inquiries, though in form separate, are nevertheless intimately connected; for the nature of the subject-mattér of the right of property reserved by the Sovereign, can best be ascertained by inquiring what was the subject-matter of the estate conveyed to the subject by registry and denouncement, as also the quality and quantity of such estate. “For how,” as remarked by Lares, “ can the nation grant that which it has not, or how can it give to one person what belongs to another ?”
. It will be shown that minerals owned by a title wholly independent of the property in the lands'in which they are situated, still form a part of the land itself, and constitute land in the etrictlylegal acceptation of that term at ?ommon law. Inde*219pendently of authority, it would seem clear that, it being admitted that “ various sections of the soil divided horizontally,” (1 Eng. Law and Eq. Rep. 249,) may belong as separate. properties to different persons, the sections which are beneath the surface must constitute “land,” as much as those which are upon it. The vein of ore or the bed of coal is “ land,” as fully and completely as the superficial earth, and he who owns the former owns land as much as he who owns the latter. On this point the English authorities are agreed.
Nor is the application of those authorities to the question under consideration at all affected by the circumstanQe that, iu England, the regalian right to mines is held to extend only to mines of the precious metals; for the owner of lands in which mines of the base metals aré situated, having alienated to one person the mine, but reserved to himself or alienated to another the lands in which the mine is found, the question whether the owner of the mine ■ is an owner of “ land,” would be presented precisely as if the severance of the two rights of property had originally existed, and the several properties derived by separate grants from the Crown.
“ When the mines form part of the general inheritance, they will, of course, be transferred along with the lands without being expressly mentioned in the conveyance; but when they form a distinct possession or inheritance, a title to them must be established, without reference to the general title, o'f the lands in which they are situated.” Bainbridge on Mines, p. 4; Rockwell, p. 536.
In the latter situation, “ they still, of course, retain the qualities of real estate, and will be transferred by conveyances applicaple id the particular disposition of them intended to be made.” —Ibid. ■ ■
They are capable of livery and being' made the subject of ejectment. _ Cro. Jac., p. 150.
“ By the name of minera, or fodini plumbi, the land itself shall pass in a grant if livery be made, and also be recovered in an assize.” Co. Litt., 6 a.
It is held that mines do not lie in grant, but pass like other *220hereditaments by livery of seizin. Chetham vs. Williamson, (4 East, p. 476; 2 Barn. & Cress., p. 197.)
When a reservation in a deed of feoffment is made in favor of the grantor of mines, no livery is necessary, for. the grantor will never have been out of possession; but when the exception is in favor of a stranger to the legal estate, livery cannot be dispensed with. Co. Litt., 47 a; 1 Ad. & Ell., p. 748.
In numerous English cases, the distinction is clearly drawn between a mere license to dig and carry away ores, in land of which the possession is retained by the grantor, and a demise of the mine itself, by which an estate in the land is created; nor is it r.sosssary, to constitute such an estate, that the grantee acquire any right or' interest in the surface — for minerals are capable of forming a distinct inheritance in the lands of which they are a part, and consequently, an actual estate may be both created in; and restricted to, any specified kind of minerals. 19 Vesey, p. 158; 4 East, p. 469; 2 Barn. & Ald., p. 724; Bainbridge on Mines, pp. 3, 55, 124, 141, 170.
In Stoughton vs. Leigh, (1 Taunt., p 403,) it was held, that a grant of a stratum of coal in the land of another is a grant in fee simple of a real hereditament, and that the widow of the grantee was dowable of all the mines of her husband, as well those which were in his own landed estates, as the mines and strata of lead, or lead ore and coal, in the lands of other persons.
In Wilkinson vs. Proud et als., (11 Mees. & Wels., p. 33,) it was held, that a right to a given substratum of coal lying under a certain close is a right to land, and cannot be claimed by prescription. But a bare right to dig and carry away coal in another man’s land may.
An action of ejectment, an assize, a common recovery trespass, an action for use and occupation, and almost all the legal remedies applicable to “land,” can be maintained at common law with respect to a mine. But they do not lie for an incorporeal thing.. Ad. on Eject., p. 18-20; Co. Litt., 6 a; Bainbridge on Mines, p. 141; 2 Barn. & Ald., p. 737; 4 Barn. & Ald., p. 401; 2 Strange, p. 1142.
The case of The Queen vs. The Earl of Northumberland, (Plow *221den, p. 310,) is relied on by tbe counsel of tbe United States to show that in-England the right'of the King to royal metals in the lands of a subject is a merely incorporeal right or easement, like rights of common, way, estovers, and the like.
But it is not so said in the case. It is merely said, that as the subject may acquire by usage, title or interest in the freehold or inheritance of the King, as common, way, estovers, etc., so the King may possess by prerogative a title or interest m the freehold of the subject. It is not said that the title or interest of the King in royal mines is identical with the title or interest of the subject, who has a right of common, way, estovers, etc;, in tho King’s lands.
If the private owner of the inheritance can, by his grant, sever the right of property in the soil from that in the mine, and vest the ownership of the former in one person, and of the latter in another; and if the mine so owned is “ land,” it is not easy to perceive why, when ‘the severance is effected by law, and the King is the owner of the mine, he should-not also be deemed the owner of “ landand this, whether the royal right is confined, as in England, to a particular description of mines, or extends, as in Spain, to all mines. •
That this was not meant to be decided in the case.in Plowden, is clear; for no question was made as to whether the right of the King was a corporeal or incorporeal hereditament, and the judgment of the Court was, “ that all ores of gold and silver in the lands of subjects, whether the mines thereof be opened oi unopened, with power to dig in the lands of the subjects for the same, and to carry them away, with all other incidents thereto, belong of right to the Queen"
From the forgoing authorities, it is abundantly clear, that the law of England is not guilty of what Mirabeau calls the absurdity of refusing to recognize two species of property, one in the surface of the earth,- and the other in its depth.
That in the case of royal mines, the property in the mines remains in the Crown, distinct from the general ownership of the land in which they are situate, and in the case of base mines, the general owner may sever by his own grant the property ’in the *222mines from the property in the lands. But in both'cases, the mine or strata of minerals form part of the land itself, and are land in as strictly legal a sense as the non-metalliferous portions of the soil.
Having thus seen that a property in veins of metals is a pro-, petty in “ land" notwithstanding it is entirely independent of the property in the §oil which contains them, and that it is so regarded, whether the severance between the two species of property be effected by the grant of the Sovereign to whom royal metals belong, © by the owner of the inheritance, who, by the law of England, was the owner of the base metals within his lands, we will next inquire what was the nature of the estate which was acquired by registry and denouncement under the Spanish and Mexican laws.
This inquiry will necessarily involve a consideration of the nature of a mine under those laws; for it is admitted, as urged by the counsel of the United States, that an estate in a mine may closely resemble am éstate in land, while the subject-matter of the two estates may remain essentially different.
It will, therefore, be shown not only that the estate of a mine-owner. is nearly identical with a fee simple conditional estate in land, at. the common, law, but that the subject-matter of that estate, viz., “ a mine,” as defined in the Ordinances, is “ land " in the strictest sense, as proved by its intrinsic nature, and by the application to .it in Spanish and Mexican laws and treatises of terms which describe and express what is understood in our jurisprudence by the word “ land."
In the earlier periods of the Spanish Monarchy, it was established as a principle of Castilian law, that all mines found in the Royal Seignory belonged to the Crown. All persons were prohibited from working them except under royal license. Part. 3, tit. 28, law 11; Nov. Recop. lib. 9, tit. 18, law 1.
In 1387, permission was given to every person to work, mines found within his own inheritance, or in that of other persons with their permission. Nov. Recop. lib. 9., tit. 18, law 2.
And as early as' 1526 and 1551, a general royal license was gives to work mines discovered in the Indies, on giving an account thereof to the Governor, and payment of a certain pro*223portion of the product to the Crown. Recop. de las Ind. lib. 4, tit 19, 61 14.
' On the 10th January, 1559, Philip II., by a law promulgated on that day, extended to all mines .of gold, silver and quicksilver ’ found within the kingdom, whether on royal land or on those of lordships, or of the clergy, or in public, municipal, vacant or private lands, the right of ownership which had previously been vested in the Crown, as to mines found within the Royal Seignory; and all mines of the three metals-. named were declared “to be resumed and incorporated in the. Crown and royal-patrimony of the King,-’ excepting only such mines of gold or silver, as had, under previous grants to individuals, been begun to be worked, and were then actually worked Nov. Recop. lib. 9 tit. 18, l. 3, Halleck’s Mining Laws, pp. 6, 15; Rockwell, 113, 116.
The reasons for this act of high sovereignty are set forth in the preamble of .the law. They are chiefly foundéd on the policy of stimulating the discovery and working of mines, by giving to all subjects of the Crown the right of discovering and acquiring the ownership of them in limited parcels, in order that thereby this source of national wealth might be developed, instead of being locked up, as theretofore, in the hands of a few, who did not or would not develop it. Rockwell’s Gamb. Comm., p. 127; Nov. Recop. lib. 9, tit. 18, l. 3; Halleck’s Transc. p. 6-11.
It thus became an established and fundamental principle of the Spanish law, that all mines of gold, silver, quicksilver, and other. metals, whether found on public or private lands, belonged to the Sovereign. Rockw. Gamb., 126, 127; Solorzano Polit. Ind., lib. 6, cap. 1, No. 17 ; Ordenanzas de Mineria, p. 68; Ordinances of 1783, lib. 5, art. 1: Ordinances of 1584, lib. 6, tit. 13, l. 9.
To carry into effect the policy thus inaugurated, ordinances were established in 1584, (called by Gamboa the Old Ordinances,) which continued in force until August 22d, 1788, when the New Ordinances, as they were called by Gamboa, were enacted.
By these new ordinances, all former edicts and ordinances were revoked, so far as they were opposed to the provisions of the new law except the-provisions of the law of 1783, so far as they *224treated of tbe incorporation into tbe royal patrimony of tbe gold, silver, and quicksilver mines of the kingdom.
The 2d article of the New Ordinances is as follows:
"'And in order to benefit and favor our subjects and natives, and all other persons whatsoever, even though foreigners to these’ our kingdoms, who may work or discover any mines of silver already discovered, or to be discovered, we will and command that they shall have them, and that they shall be their property m possession and ownership, and that they may do with them' as with any thing their own, observing," as well in regard to-what they have to pay by way of duty to us, as in all else, what is prescribed and ordered in this edict.” Halleck’s Transc., p. 70.
By the laws of the Indies, the Emperor Charles and King Philip II. had made a similar grant to all their subjects, whether Spaniards or Indians, (except certain officers,) authorizing them to work the mines freely and without impediment, and’ “ making them common to all persons, wheresoever situate;” provided, that the Indians should, not be injuriously treated, and that no other parties be prejudiced. 1 Heathf. Gamboa, p. 20, book IV. lib. XIX., law 1; Recop. de las Indies; Halleck’s Transc., pp 130, 140.
From the very ample terms of these grants a doubt arose, says Gamboa, whether' the mines were still to be regarded as the peculiar right of the Crown, or whether they were to be considered as the absolute property of the subject.
On the one side, Don Mateo de Lagunez and Cardinal de Luca were of opinion, that as all mines in the Indies had been declared “common," and all persons were at liberty to try for them, wherever situate, it was to be inferred that the mines were no longer vested- in the Crown, and that the effect of the Ordinances was precisely the same as if the mines had been made private property, (particulares,) as they may be by concession and privilege.
This opinion Gamboa combats, and after discussing the question at length, concludes that the mines remained a right of the • Crown and annexed to the royal patrimony, and that the laws made the vassals “participants" of this right; not giving them *225the private and absolute property to use at.will, but in subjec- ' tion to the Ordinances; and that although the laws concede to them the ownership and property (dominio y propiedad,) it is by “participation,” and not by absolute translation, (por participación y no por translación absoluta;) the supreme right of property (alto dominio) remaining in His Majesty.
"The correct opinion then seems to be,” says Gamboa, “that the mines remain attached to the Crown (que S. M. mantiene en su corona las minas,) and that the King, not being able to work them himself, has admitted his subjects to a share of them (dio parte á los vasalos) under various restrictions and- subject to various liabilities.” ■ .
The opinion advocated by Gamboa appears to. have been adopted in the Ordinances of 1783, in which many of the suggestions of Gamboa yrere embodied. (Gamboa, chap. 11.) ■
The first two articles of title Y. of that Ordinance are ns follows:
“Art. 1. Mines are the property of my Royal Crown, as we U by'their nature and origin, as by their re-union, declared in law IV., lib. XIII, book VI., of the Nueva Recopilacion.
“Art. 2. Without separating them from my royal patrimonr, I grant them to my subjects in property (en propiedad) and possession in such manner that they may sell them, exchange them, rent them, donate them, pass them by will, either in the way of inheritance or legacy, or in any other manner alienate the right which in the mines belongs to them, on the same terms on which ' they themselves possess it, and to persons capable of acquiring it.” Halleck’s Transc., p. 222.
Tt was under these, last Ordinances that the rights of Castillero . were acquired; but as they adopted the views of Gamboa as to, the Ordinances of 1584, his Commentaries on the latter, and definition of. the mine-owner’s estate acquired under them, are' of controlling authority in the interpretation of the Ordinances • of 1783.
In Section 24, p. 19, Gamb. Comm. Heathf. Transc. pp. 27-8, he observes; “ Having established then the regalian right of His ’ Majesty in the mines, and that this right is entirely consistent *226with the right of disposition and property (con el dominio y propiedad) of the subjects, it is indisputable, that as a consequence of their passing to the latter with power to dispose of them, as their own (como cosa suya) all the incidents of “pro perty’’ (propiedad y dominio) must attach in favor of the proprietor, and that they may therefore be exchanged, sold, leased or alienated by contract, donation and inheritance, may be given as a portion in marriage, or may be charged with a rent, and that interest may be demanded for the purchase-money while remaining unpaid, etc., etc.
“ There passes, then, to the subject the direct dominion or pro perty, as also the right to the use (dominio directo ó propiedad, y también el util,) by virtue of the favor and grant of the Sovereign — which we hestitate not to call a gift On conditions (una modal donación,) as will appear upon considering the rules by which that species of grant is defined in law: that is to say, that, it be a free and complete act, which being perfected, a charge attaches on the donee from that time forth, (and the being worded as a condition makes no difference,) and that upon the failure of the modification limited by the donor in his own favor or in that of a third person, or of the Kingdom or Republic, the gift determines, as will be seen by reference'to the various text and doctors.” Ch. 11, sec. 25.
Throughout the Commentaries of Gamboa, the estate of the mine-owner in the mine is called the “dominio y propiedad;” and in sec. 15, ch. XXI, he says: “Another privilege treated of by the authorities ■ above alluded to, is that of appropriating nine parts of the metal, paying only the tenth to the King as an acknowledgement of his having shared with his subjects the direct and superficial ownership (de aver participado á sus vasallos el dominio util y directo,) of so valuable a kind of property {de tan preciosos fundos).
We have already seen that the “alto dominio” of eminent domain is reserved by the King, by virtue of which and of the conditions on which the grant is made, a new grant may be made if the first be forfeited by breach of the conditions, viz.: the payment of the fifth, and the observance of the Ordinances *227wnieh. Gamboa calls the modo, or gravamen with which the donation is charged, and which mate it a “ donación modal.”— Chap. 11, art. 26.
From the foregoing citations the nature of the estate in the mine acquired by registry and denouncement under the Spanish laws, might seem sufficiently clear.
It will, however, not be inappropriate to show what in Spanish law is the meaning of various terms which are used in the Ordinances, and by Gamboa, as descriptive of his estate. Those terms are “propiedad,” “propiedad y posesión,” “propiedad y usufructo,” “ propiedad y utilidad,” “ plena propiedad,” “ dominio,” "pleno dominio," “dominio absoluto y perpetua,” “dominio directo y útil.”
“ Propiedad,” is the right to' enjoy and dispose freely of things which are ours, so far as the laws forbid not. Commonly, the dominion which is not accompanied by the usufruct is called “propiedad,” or “nuda propiedad,” and the dominion which is accompanied by the usufruct is called “ plena propiedad.” Es criches Diet., verb. “Propiedad.”
“ Dominio,” is the right or power to dispose freely of a thing, if -the law, the will of the testator, or some agreement does not prevent.
It- is divided into the full, and the less than full — “ dominio pleno y menos pleno.”
“ Dominio pleno y absoluto,” is the power which one has over anything to alienate independently of another — to receive its fruits — to exclude all others from its use.
“ Dominio directo,” is the right a person has to control the disposition of a thing, the use (utilidad) of which he has ceded.
“ Dominio util,” is the right to receive all the fruits of a thing subject to some contribution or tribute, which is paid to 1dm who reserves in it the- “ dominium directum.” — Escriche’s Diet, verb. ‘ Dominio;” Alvares’ Institutes, vol. ii., pp. 23, 33.
It appears, therefore, that the words which the laws and commentators- apply to the miner’s estate, viz.: “propiedad y usufructo” “plena propiedad,” “pleno dominio,” “dominio directo y util ” etc., are descriptive in the Spanish law of the highest *228estate or right of property in land which the subject can acquire.
It would seem to be higher than any right of property in land enjoyed in England; for, says Blackstone, “A subject has only ' usufruct and pot the absolute property of the soilor, as Sir Edward Coke expresses, “he hath the ‘dominium utile ’ but not the ‘dominium directum.’ ” Comm. bk. 2, ch. 7.
The ownership of the subject in the mine remains, however subordinate to the dominium altum, or eminens, or dominio alto of the Crown.
But this is merely the right tacitly reserved by the Government or sovereign authority of a State, and to which all individual rights of property are subject, to take possession of the . property in the manner directed by the constitution and laws of - the State, whenever the public interest may require. Per Ch. Walworth; Beekman vs. Saratoga R. R. Co., (3 Paige R., p. 45.)
The fact that the estate of the mine owner may be forfeited or determined by a failure to comply with those of the ordinances which impose that penalty, i. e., by breach of the conditions subsequent attached to the gift, in nowise affects its nature as an estate in fee. .
Every estate held by feudal tenure was subject to forfeiture for breach of the conditions on which it was granted. Nor were these conditions always expressed in the grant; for every act of the vassal which amounted to a breach of his allegiance, or the tie which bound him to his lord, operated a forfeiture of the land.
In a grant of a mine the principal conditions, the breach of which worked a forfeiture, were: 1st, the payment to the Crown of its proportion of the products; and 2d, the working it according to the laws.
•If no breach of these conditions occurred, the estate of the miner would continue forever.
It therefore closely resembled a conditional or, determinable fee at common law. 1 Prest. on Est., 480. ' The number of cases •where, by the Ordinances of 1584, the mine was declared forfeited, 'perdida,) was no less than fifteen, but many of these causes of *229forfeiture were totally abolished, and the rigor of .the laws was essentially mitigated by the Ordinances of 1783, and subsequent laws.
The decree of the Cortes of Spain, of January 26, 1811, exempted the miners of quicksilver from the payment “of all duties, even including the duty of the fifth, or the proportion which the miner is bound to pay;” and annulled “ all dispositions which opposed free trade in saictmineral, and the security of absolute and perpetual ownership (dominio absoluto y perpetuo) of the miner; provided, that in managing and working them, he observe the general rules established on the subject.”
In the communication from the Secretary of the Regency, transmitting to the Royal Tribunal-General of Nejr Spain this decree, he says:
“ Under this date I notify your Excellency, that the prerogative of Seignory, which from remote times the Yice-Royal Trea sury has reserved to itself with respect to mines of quicksilver, has been annulled by the General and Extraordinary Cortes, in consequence of the resolution and manifestation of the Council of Regency, enacting at the same time that the said mines shall be worked under the same rules and ordinances as those of gold, silver, and other metals, and that their possessors shall preserve their ownership and usufruct (propiedad y usufructp,).and in no case shall they be obliged to alienate them to the State — giving them permission moreover to sell their products to any one who will pay the highest price for them. This measure affirms in a manner inviolable the ownership (propiedad) and profits (utilidad) of this kind of real.estate (de talis juicas), and dispels the reasonable fears which prevented individuals from taking them under their care.”
It would not be easy to find words to express more stroDgly the notion of a permanent and inviolate right of property, than the language of this decree and communication. Orden. de Min, pp. 79-82; Halleck’s Mining Laws, pp. 381-385.
One of the principal causes of forfeiture established by the Ordinances of 1384, was the failure to work the mine for four consecutive months. But even this provision, so necessary tc *230secure the great object of the Crown in conceding the mine, viz., the development of the mineral resources of the country, was regarded as highly penal, and therefore to be strictly construed. It was thus easily evaded, for by working the mine for a few days every four months the forfeiture was avoided. This defect was remedied in the Ordinance of 1783, which declared that the omission to work for eight months, whether successive or inter rupted, in any one year, should forfeit the mine; but the Judge, before whom the mine was denounced, was authorized to admit, in addition to the excuses allowed by the former law, any “other just causes which, combined with their former merit, might render the miners worthy of equitable consideration.” Halleck Transc. 244; Ord. of 1783, Art. 15; Heathf. Gamboa, p. 80-86.
Some of the other causes of forfeiture were for the breach of directions in the Ordinances clearly necessary for the security of the mine or of the operatives — such as removing the pillars or supports of the mine, or in other ways neglecting to comply with the rules of the Ordinances, or the directions of the competent authorities, as to their security and preservation, and their better working. Ord. of 1783, Arts. 7, 10, 11, 12, 13, 14, 15; Halleck’s Transc. 342, et seq.
In some cases these forfeitures were only imposed after repeated offences, (Art. 10,) and all the facts were to be judicially ascertained in appropriate proceedings.
From the foregoing it results, that although “ the observance of the Ordinances,” was in strictness a condition of the concession, yet in fact the forfeiture of the mine was a punishment or penalty imposed for violations of salutary and necessary rules, incurred in but a limited number of cases, and when no equitaable considerations existed for mitigating their rigor.
A determinable fee, however, determined by the act or event expressed in its limitation, usually beyond the control of the tenant, and the occurrence of which could not be imputed to him as a fault, still less as a violation of law.
The annexing of conditions subsequent to grants, seems to have been a policy by no means peculiar to Spanish jurisprudence with regard to mines. It was intended to provide a *231security for the attainment of those .objects which farmed tjje consideration for the grant.
These, in colonization grants, were generally occupation apd cultivation. In Florida and Louisiana, the settlements were made under a preliminary concession or warrants of survey, and on the fulfillment of the conditions, the final or perfect title was issued.
In Mexico, however, under the Law of 1824, and the'Regulations of 1828, a perfect title issued in the first instance, but charged with conditions as to occupation- and settlement; and the grant provided that “ if the grantee failed to comply with the conditions, he should lose his right to the land, and it might be denounced by another.”
I am unable to perceive any substantial difference between the estate of the colonization grantee and that of the rnineowner. Both liable to denouncement and forfeiture for noncompliance with the conditions expressed in or annexed by law to the grant; and in both cases, equitable excuses could, in general, be received for the omission.
In the California land cases, the existence in the' grants of conditions subsequent has never been regarded as presenting any obstacle to their confirmation — where no forfeiture had accrued and been judicially ascertained under the former Government.
Having thus ascertained the nature of the mine-owner’s estate in the mine, we are next to consider what was the nature of a mine itself, considered as a subject of property.
From the quality of the estate, and the fact that it possessed all the incidents of an estate in land — that it was alienable devisable, and inheritable — that it could be leased, charged with a rent, mortgaged, and given as a portion in marriage, etc., it might reasonably be concluded that the Spanish law, like the English, regarded the mine as “land.” But all doubt is removed by recurring to the terms which were applied to it. It is a "fundo,” or land. 1 Gamb., ch. v., sec 5; id. ch. xxi., sec. 15. "bienes raices,” or real estate. Id. ch. xvii., sec. 22. It is " bienes immobles,” or immovables. Id. ch. xxiii., sec. 6. All the rules relating to pititory and possessory actions for lands are *232applied to it, eh. xxiii., secs. 1, 6, 19; and in these cases the proceedings may be for the ore, or merely to substantiate the right of property in the mine, (sobre los metales <5 puramente sobre la propiedad.) Ch. xxiii., secs. 20, 21.
The fact that a judicial delivery of possession was authorized to be made, indicates that the thing to which the title or right of property had attached was a corporeal hereditament. It is laid down by Alvarez (Inst. v. 11, p. 23, et seq.) as an axiom of the civil law, that “only things corporeal can be delivered, since only these can be transferred by corporeal act from one to another.” . And this corresponds with the rule of the common law, that corporeal hereditaments pass by livéry of seizih, while incorporeal' hereditaments lie only in grant.
As the Ordinances gave to the miner the right of property in and possession of the mine, the judicial delivery of the mine, ' after the title to the thing had been acquired by denouncement and registry, vested the mine-owner with the right in the thing, 'and gave him the full dominion — the title to and the right in the thing, the right to dispose of-it, and.the right to use — dominio directo y util. It is unnecessary to pursue this discussion further.'
No one, I think, who examines the Ordinances and the Commentaries of Gamboa with care, can avoid the conclusion that the mine-owner, by denouncement and registry, and the delivery of the possession to him, obtained, under the Mexican law, a. right to and property in the mine, and that the mine so acquired consisted of the very substance of the minerals of which it was composed — was a corporeal hereditament like a mine or stratum of ores in the English law, and was land in the strictest and fullest sense of the term.
The case of Fremont vs. The United States, (17 How. 565,) is . relied on by the counsel of the United States as sustaining his objection to the jurisdiction. In that case the Court say: “ In relation to -that part of the argument which disputes the right on the ground that the grant embraced mines of gold and silver, it is sufficient to say, that under the mining laws of Spain, the discovery of a mine of gold or silver did not destroy the title of the individual to the land granted. The only question hefort. *233the Court is the'validity of the title. And whether there be any mines on this land, and if there be any, what are the rights of sovereignty in them, are questions which must be discussed in another form of proceeding, and are not subjected to the jurisdiction of the Commissioners or the Court, by the Act of 1851.”
■ It will be seen that the only question before the Court was whether the fact that mines of gold and silver had been discovered on land which had been previously granted under the colonization' laws, destroyed the title of the individual to the-land granted. It was of course held that it did not. . Whether there were any outstanding rights of sovereignty in such mines, and, if so, what was their nature, and in what sovereign they were vested, the Court declared itself without jurisdiction to determine.
But it was not decided, nor could it have been intended to be decided, that a private grantee of a mine under Mexican law could not present his claim for confirmation under the Act of. 1851. That question was not before thé Court. And even if the language is to be construed as extending to a right to a mine acquired under Mexican law by a private individual, and is not to be restricted, as its terms imply, to rights of sovereignty outstanding in the United States or the State of California, it must be regarded as obitar dictum — not necessary to the determination of the case, and relating to a question which did not and could not have been presented by it.
A similar decision of the point presented for determination had already been made by the Supreme Court in Delassus vs. The United States, (9 Pet. 117.) The claim in that case was, like that of Fremont, for the confirmation of a concession of a tract of land. It differed from the case of Fremont in the circumstance that the motive of the petitioner in soliciting the grant was declared to be to make explorations for lead mines.
But the Court held that the concession was for lani; and &B all claims for lands were s ibmitted to its jurisdiction, without any reservation in the Act of Congress of claims for lands containing lead mines, a confirmation could not be withheld.
In B "emont’s case the same objection — viz.: that the land *234granted contained mines- — was taken, and the Court held, that that circumstance did not impair the validity of the grant, or diyest its jurisdiction over it as of a'claim to land. Such, it seems clear- to me, was the whole scope and effect of the decision.
The nature of a claim to a mine, as distinguished from the right of an agricultural grantee to the surface, and the jurisdiction over such a claim confided to the Commissioners by the Act of 1851, were not Considered, or intended to be decided.
My conclusions, then, on the question of jurisdiction, are—
Í. That the jurisdiction of this Court is not restricted to those cases where the estate claimed in lands in California is a fee — or such as in equity should be converted into a fee.
2. 1}hat even if it were, the estate of a mine-owner in a mine is, under Mexican and Spanish law, a fee with conditions subse quent; .closely resembling that of a grantee under the colonization laws.
3. That by the common law of England the ownership of the surface may be vested in one person, and that of the mine, or substratum of mineral in another; and that the latter is “land” in its strictest sense.
4. That by the Spanish and Mexican laws, a mine, considered as a subject of property, and distinct from the ownership of ,the surface, is “ land,” or rather, that terms are applied to it in those laws which are the precise equivalents of the common law term “ land”
And that therefore this Court has jurisdiction to ascertain anci settle a private land claim to a mine, the title to which is derived from the Spanish or Mexican Governments, as of a claim to “ bind.”'
Having thus ascertained that a mine, is “ land” and that the estate of the mine-owner closely resembled a conditional fee at common law, we will next briefly inquire by what proceedings and in what manner that estate was acquired.
Such an inquiry naturally precedes an examination into the genuineness of the alleged title to the mine, and the determination of its legal effect if found to be genuine. •
In-art. 4, tit. VI., of the Ordinances of 1783, entitled “Of the *235modes of acquiring mines — of new discoveries, registries of veins, and denouncement of mines abandoned or forfeited,” is as follows:
" Those mentioned in the preceding articles must appear with a written statement before the Deputation of Mining of that' Territory, or the one nearest, if there should be none there, stating in it their name and those of their partners, if they have any; the place of their birth, their residence, profession and employment; and the most particular and distinguishing features of the place (sitio), hill (cerro), or vein, of which they ask the adjudication. All of which circumstances, and the hour at which the discoverer presents himself, shall be noted in a book of -registry, which the Deputation and Notary (Escribano) 'of Mines, if there be one, shall keep, and this being done, his written státement shall be returned to the discoverer for his óub security, and notices shall be fixed to the doors of the church, Government houses, and. other public places of the town, for due information. And I order that within ninety days he shall have made in the vein or veins of the registry, a pit (poso) of a vara and a half wide, or in diameter, and ten varas down, or in depth; and that as soon as this is done, one of the Deputies shall personally go, accompanied by the Notary, if there be one —and if there be none, by two assisting witnesses and a profes sional mining expert of that Territory — to inspect the course and direction of the vein, its width, its inclination to the hori zon, which is called echada or recuesto, its hardness or softness^ the greater or less firmness of its sides, and the species or-principal indications of the mineral — taking an exact account of all this, in order that it may be added to the corresponding part of its registry, with the evidence (fé) of possession, which shali immediately be given in my Royal name, measuring to him his pertenencias, and causing him to fix stakes (estacas) in his boundaries, as will hereafter be mentioned; which being done, there will be delivered to him an attested copy' of the proceedings as a corresponding title.
“Art. 5. If during the ninety days any one shall appear pretending to have a right to said discovery; he shall have a brie|
*236hearing in Court, and it shall be adjudicated to the one who best proves his claim; but, if he appear after that time, he shall not be heard.
Art. 7 provides, that when a question shall arise as to who is the first discoverer, he shall be held such who shall have first found metal in the vein — and in case of doubt, he who shall first have registered it.
It is well’ said by obe of the counsel fo the claimants, that the object of the various Mining Ordinances of Spain was to stimulate and promote to the utmost extent the discovery of mines and the development of their riches.
The means adopted to stimulate discovery were to give to the discoverer the mine he might discover — the State reserving for itself a small part of its products. The means by which the development of the' riches of the mine was secured, consisted in making the continuance of the right of property dependent on working it to the extent and in the manner prescribed by law.
Discovery, therefore, was recognized by those laws as the real foundation of the right, and the true consideration for the grant of property in a mine.
Gamboa considered the discoverers of mines as entitled even to greater encouragement than the inventors of useful arts. Heathf. Gamb. 1, p. 259. And in all the Mining Ordinances of Europe, the right of the discoverer is recognized by the promise of a grant of the mine as a reward for the discovery.
In the Sala Mejicana, vol. 2, p. 58, discovery is declared to be one of the modes of acquiring mines, and it is recognized as a species of occupation, and as constituting a source of title, like the finding of a buried treasure, precious stones, and the like.
In the jurisprudence of Spain and the Continental Nations, discovery, with regaid to mines, as a source of title and consideration for the grant, corresponds with occupation and cultivation under our own pre-emption laws with regard to vacant public lands; and in all the claims to lands in Florida and Louisiana submitted to the Supreme Court, the fact of settlement, under a contract for or with a just right to expect a title *237has been regarded as a valuable consideration secured by the State, and creating an equitable obligation to confer the title.
But this inchoate right created by discovery must be perfected in the manner prescribed by law.
It is therefore required that the mine be. registered; and without registry, says Gamboa, ho mine could be lawfully worked, and* it remains liable to be registered by any other person — the form of the ordinance not having been complied with. Chap. v., sec. 2. The reasonableness of this regulation, he remarks, is evident. It is not necessary to recapitulate the various arguments by which he vindicates its policy and necessity.
As the revenue was interested in a portion of the product oí the mine; as the public policy required that an account should be taken of so important a part of the national wealth; as the mine-owner, from the moment of registry, became'subject to-laws designed to secure the development of the mine he had discovered; for these and other reasons, it was indispensable 1o provide a mode in which the discovery should be formally made known to competent authority and the right of the discoverer judicially declared and defined. Registry is, therefore, said by Gamboa to be the fundamental title, or the base of the title (el titulo fundamental de las minas), and the attributive cause of the subject’s right of property in it; for the Crown has conceded the mines and made them common, subject to this burden oi condition (gravamen). Ch. v., sec. 2.
And in other places he speaks of registry as “■ el titulo funda-' mental de el dominio de las minas.” Ch. xi., sec. 2; ch. vii., sec. 3.
The registry, however, did not constitute the title to the mine in the sense of being itself a concession or grant.
The registry, or formal declaration of the. discovery in the manner prescribed by law, was the fulfillment of the condition imposed in the general grant by the Sovereign on the discoverer of mines, and on its performance the law itself annexed the title as the legal consequence of discovery and registry; It stilJ remained subject to further conditions — some to be performed *238before a formal delivery of possession conld be given, and some to be perpetually observed under penalty of forfeiture.
The registry was therefore required to be made before a judicial tribunal, and not before an administrative officer, who, like the Governors of California, might exercise a discretion as to whether or not the concession should be made. The declaration of the ownership of the discoverer was termed an " adjudication,” and even after registry, and at any time during the period allowed the person registering for digging the pit, any person pretending to have a right to the discovery, was entitled to a hearing “ in Court," and the mine was adjudicated to him who best proved his claim.
In sec. 14 of chap. v., Gamboa states that “ registries of mines in the Indies are not to be made before royal officers, but before the Justices of the Department alone; and the oath of the discoverer, that he will bring in to be stamped all the gold and silver, etc., is' to insure the due levying of duties, and is not to be made upon the registry of a mine, the ■title to which comes under the cognizance of the Justice."
In section 15, he says: “But judicial matters, such as registry, denouncement, the giving possession, etc., are the province of the justices, and, by way of appeal, of the royal audiences.”
In sec. 24, he defines registry to be “any judicial order, or' proceedings (autos ó diligencia,) which authenticate, and afford evidence of some judicial act.”
The whole proceeding thus seems to have been the judicial recognition and declaration of a previously existing right, asserted and established in the manner required by law, rather than the creation and conferring of a title which had no pre-vious existence. • .
Thus, Gamboa, in speaking of the necessity of registering says: “And therefore, the discoverer, if he would preserve his right, should give notice of his discovery, and make himself known.” Ca. v., 4.
So, in sec 17 of the same chapter — “ If, after the expiration of the term of twenty days, some other person should come forward and register, the discoverer loses his right, this being *239the penalty he is liable to pay for his culpable default, in neglecting to register his mine, and thus frustating the ends of the ordinances; for a mine which is worked without being registered, is not properly to be called a mine,- and does ndt merit the name, even though it should yield good ore.
“ The ordinances give the name of mines to such only as are registered, because the registry is the fundamental title (el titulo fundamental) to every mine; and because the omitting to make registry - evinces a vicious intention to dispose of the ore of silver clandestinely, in fraud of the right of the Crown,, and to put impediments in the way of other individuals who might wish to take mines upon the same vein, or at the same spot.”— 1 Heathf. Gamb. p. 150.
In neither the Ordinances of 1584, nor in those of 1783, is mention made of any title-paper to be delivered to 'the party, containing, in terms, any grant or concession of the mine.
His “statement” is, by the Ordinances of 1783, to be-returned to him, after its contents have been duly noted in the register, “ for his security,” and' when he shall have dug his pit he is to be put in .possession,.if no adverse claim be interposed. But the only evidence of his title consists in the judicial ascertainment and record of" the fact that he declared his discovery in the form required by law, which being done, the law itself gave the title on the conditions fixed by the ordinances! "When the pit had been dug, and judicial possession given, the 4th Article of the Ordinances of 1783, directed, as we have seen, that aii authorized copy of all the proceedings (de las diligencias) should be given him as his corresponding title (como titulo correspon diente). To perfect and secure the right to a mine, registry was, in all cases, indispensable. In making it, all that was necessary was “to manifest the person, the place, and the ore.” But if the mine had previously been worked, and was denounced for abandonment or other cause of forfeiture, a preliminary proceeding called a denouncement was required. This was in the nature of an accusation against the former owner, charging him with having left the mine unworked, or having come Within some o :her ground of forfeiture. Upon this question a summary *240judgment was had, after notice to neighbors, proclamation, etc. If the mine was declared forfeited, the denouncer was, nevertheless, obliged to register it and go through the same proceedings as the discoverer had done. Heathf. Gamboa, ch. v., sects. 21-22, p. 153.
That, the discoverer of a mine was recognized by the law as having acquired a right to it, even before registry, :s further shewn by the terms of~the 20th Ordinance of 1584-, which enacts that “ No person shall presume to register, or to enter in the register a mine which is not Ms own property, under the penalty of one thousand ducats,” etc.
Among the cases mentioned by Gamboa, to which this law applies, is that of a person other than the discoverer of the ore registering a mine before the expiration, of the twenty days .allowed by the ordinance to a discoverer for registering his mine. 1 Heathf. Gamboa, pp. 156, 158.
The discoverer is thus treated as the true owner of the mine, until, by failing to register within the time prescribed, his rights are lost; and the registry of the mine within that time by any person in his own name is considered and punished as a fraudulent attempt to acquire the property of another, like a similar act by the mortgagee of the mine, or by the curator or tutor of a minor, and other cases mentioned by Gamboa.
From these and many other provisions in the ordinances and passages iir the Commentaries of Gamboa, the nature and effect of registry is unmistakably manifested; nor can our views of it depend upon the- meaning we attach.to a single phrase of Gamboa (el titulo fundamental), as to the correct translation of • which a question was raised at the bar.
The foundation of the right to a mine, was discovery. But this right was lost unless the discoverer made known the fact before the judicial tribunal authorized to receive such declarations. The proceeding for the purpose was entirely ex-parte, and consisted merely of a production of the.ore, a description, of the place where it was discovered, and the person of the discoverer. These facts being duly made known and recorded, the title passed by operation of law, unless within the time limited *241some one having a better right appeared. The foundation of the denouncer’s right was in principle the same.
Having brought to the notice of the Court, and established that a mine was abandoned or had been forfeited, the law gave him che right to register it in his own name, like a new mine, .except that not being an original discoverer, the mining space (pertenencias) to be assigned to him was more limited. '
The registry cannot be regarded as the base of the title to the mine,' in the sense, that without registry a right of property could, in no case, be asserted to it; for as we have seen, even after registry by an alleged discoverer, and after he had dug his pit, obtained judicial possession, and even had his pertenencias measured, any one pretending to have a right to the discovery, could within ninety days from the date of the registry assert his claim and procure the mine to be adjudicated to him; but where no objection was interposed, and the person registering was the true discoverer of the mine, the causing it to be registered, or the formal declaration of his discovery, was the fulfillment of the condition established by law upon which his inchoate right as a discoverer became a perfect right of property (although until the pit was dug he was not entitled to a judicial delivery of possession, nor could he alienate the mine). And the register itself, or the record of the procedure, became his fundamental title paper, or evidence of his title, for it established judicially the fact of the discovery, and the fact that he had declared it as re quired by law.
I have thus endeavored to arrive at a clear conception of the nature and effect of the registry of a mine, and of the rights of a discoverer, that we may be better able to judge of the validity of the alleged registry by Castillero, and correctly to estimate the equitable or inchoate rights he may have acquired as the discoverer of a new mine.
Having premised this much as to the rights of a discoverer, and the nature, objects and effect of a registry we will now particularly consider the provisions of the articles under examination.
' It will be observed, that to effect a registry, and to entitle bimself to the judicial delivery of possession .of the. mine, the *242only acts'required of the discoverer were: 1st, his appearance before the Deputation, with a written statement of the'facts necessary to set forth ; and 2d, that he should within ninety days thereafter, make a pit in the vein of his registry of the required dimensions.
The noting in the book of registry of the contents of the statement, the hour at which the discoverer presented himself, the notices for due information, etc., were acts to be performed by the Judge or Deputation. It would seem that any injurious effect on the discoverer’s right by the omission of the first of these formalities, was intended to be provided against by the direction that the written statement should " be returned to him for his due security,” and it is presumed, with a certificate annexed of'the fact andtime of its presentation.
We learn from Gamboa, that in 1727, the Viceroy Marquess of Cassa Forte issued an order, dated at Mexico, commanding the royal officers and justices to send an account of the mines within-their several districts, whether at work or abandoned, etc. ; and in case they should have no book of registry for the mines which might have been registered there, to form one with all possible dispatch, that an account might thus be obtained of all the mines in the kingdom, iron), which a general book might be made up, etc. “ But we are not aware;” says Gamboa, “ that this order, so agreeable to the spirit of the Ordinances now under consideration, and so important to the interests of the revenue in a public, and of the subject in a private point of view, was soon carried into effect.” We find here no intimation that the failure of the officer to enter the registry in a book in any way impairied -its validity, and this, notwithstanding that the ordinance he was considering (Art. xix,) expressly requires the Mining Administrators of each District to keep a book in which all registries made in such District were to be entered, and for this purpose the miners were required to send authenticated copies of such registry'to-that officer.
Gamboa goes on to observe, that “the original proceedings (diligencias) ought not 'to be given into the custody 'of -the owners -until the .registry,-etc., be -'made in the proper book; -for *243otherwise these important instruments would be exposed to the contingencies alluded to above, and very serious difficulties may arise in subsequent dealings in ascertaining whether the registry or denouncement was made with due solemnity, the time and manner of making it, the greater or less antiquity of the mine,” &c.
This suggestion appears to have been adopted in the Ordinances of 1788, which provide, as we have seen, that the contents of the statement and the hour at which it was presented, shall first be noted in the book of registry, and the statement then returned to the discover “for his due security.”
The registry having been effected, the working of the mine could lawfully be commenced at once, and within' ninety days the pit was required to be dug. As soon as this was done formal possession could be given.
If, however, the party who had registered the mine failed .to do this, his rights were, by the Ordinances of 1584, forfeited and the mine might be denounced by and adjudged to another. As, however, from the nature of the vein, a pit of the depth of three estados might be wholly unnecessary, or the hardness of the rock, the caving in of the pit, the breaking out of springs of water, &c., might prevent the digging of the pit within the time limited, it was provided by the ordinance, that the justice, on an application made to him, and an investigation, might dis.pense with, this requirement of the law, or enlarge the time for its fulfillment, as might be necessary.
In the Ordinances of 1783, the penalty of forfeiture is not in terms imposed for the omission to dig the pit within ninety days. It is presumed, however, that a breach of so positive and important a provision of law would, if without excuse, under the later ordinances have rendered the mine liable to denouncement.
By Art. 4, of the Ordinances of 1783, the pertenencias of the mine were required to be measured, and the stakes fixed in the boundaries at the time possession is. given.
By the Ordinances of 1584, the miner was not obliged to do this, until cited by some neighboring miner “who asked for *244stakes. Ten days were then allowed him to select the ground-he might prefer, or, using-* our mode of expression, to locate his pertenencias — subject, however, to .the condition that his original pit of possession, or fixed stake, should be within the limits of •the boundaries he might select. If he failed to make his selection within ten days, his boundaries were established by the justice. But this designation of his pertenencias was not final; for he might at any time afterwards, on discovering the true course of the vein, &c., apply to have his stakes bettered {mejorar las estacas), and his boundaries might be altered in any way not injurious to the neighbor, between whose mine and hir ■own the boundaries had already been established. — 1 Heathf. Gamb., pp. 297, 298, 325; 2 Heathf. Gamb., p. 10.
■ The frauds and litigation to which this practice gave rise led Gamboa to suggest that every one should, by positive ordinance, be required to set out his boundaries at the time possession was given, under pain of incurring the forfeiture of the mine and of being ipso facto deprived of it, even though not denounced by any other party. 2 Heathf., pp. 10, 11.
This suggestion was adopted in the. Ordinances of 1783, except that the omision to set out the boundaries at the time possession is given, was not deciar* d to forfeit the mine ipso facto.
But, notwithstanding this establishment of boundaries, the miner could improve the location of his stakes {mejorar las estacas) or change his boundaries by the authority of the Deputation of the District, provided it could be done without injury to his neighbors, who were to be summoned and heard in the matter. Ord. of 1783, art. 11, Halleck’s Transc., p. 236.
It thus appears that the giving possession was, under the Ordinances, a formal proceeding, -like a livery of seizin, of -which the measurement of pertenencias, or the establishment of boundaries, did not of necessity form a part; and that although these acts were required to be done by the Ordinances of 1784, their ■ omission did not forfeit the right of property acquired by the registry; still less does it appear that their performance was a Condition precedent to the vesting of the title.
' In all cases- where land was granted under the Mexican colon*245ization laws, a formal judicial delivery of possession. was in strictness required. But it has never been held by the Supreme Court that this formality was necessary to vest the title or right of property; and in the majority of cases passed, upon by this .Court it was not given. In its own nature, it was an act which supposed the existence of a.title acquired, but had no effect in conferring one, that having already been done by the concession or grant. I see no reason to make any distinction between the judicial delivery of possession of an agricultural grant and- that of a mine, or for considering that the omission of that formality would be fatal to a right of property already acquired in the one case more than in the other.
We shall see, however, when we examine the proofs in this case, that the Alcalde, accompanied by witnesses of assistance, gave to Castillero judicial possession of the mine he had discovered, as well as of three thousand varas in all directions from it, which he undertook to grant him; that no pertenencias were measured or stakes fixed, but that Castillero had already commenced working the mine and had dug a pit, the precise dimensions of which do not appear; that he continued in possession, and working his mine, with the full knowledge not only of the authorities of the Department to whom he made known his discovery, but of the American Consul, and the inhabitants generally ; and that this possession haS been retained by his assigns and representatives to this day.
I proceed to consider the evidence a,s to the registry of the mine by Andres- Castillero, and having ascertained what was in fact done by him, to determine its validity and effect.
The documents relied on by the claimants as constituting the registry of the mine of New Almadén, are :
1st. A written statement by Andres Castillero, addressed to the Alcalde of the First Nomination of the Pueblo of San José, dat-cd November 22d, 1845, setting forth his name, office and residence, and the -fact that he had dicovered a vein of silver with y, ley of gold on the land of the retired sergeant José Reves Berreyesa, which he desired- to work in company.. He *246therefore- requests the Alcalde to fix up the proper notices in order that- his right might be made sure when the tirrie for giving the judicial possession should arrive.
2d. A second statement addressed by Castillero to the same officer, and dated .December 3d, 1845, setting forth that on opening the mine previously denounced by him he had taken out, boBidhs silver with' a ley of gold, liquid quicksilver. He therefore asks the Alcalde to unite this representation to the previous denouncement arid- to place it on file.
3d; The act of juridical possession. In this document the Alcalde recites:
“There being no Mining Deputation in the Department' of California, and this being the only time since the settlement of Upper California that a mine has- been worked in conformity with the laws, and there being no Juez de Letras, (Professional Judge) , in the Second District, I, the Alcalde of First Nomination, citizen Antonio Maria Pico, accompanied by two assisting witnesses, have resolved to act in virtue of my office, for want of a Notary Public, there being none, for the purpose of giving juridical possession of the mine, known by the name of Santa Clara, in this jurisdiction, situated on the land of the retired Sergeant José Reyes Berreyesa, the time having expired which is designated in the Ordinance of Mining for citizen Don Andres .Castillero to show his right, and also for others to allege a better right between the time of denouncement and this date; and the mine being found with abundance of metals discovered, the shaft made according to the rules of art, and the working of the mine producing a large quantity of liquid ■ quicksilver, as shown by the specimens which the Court has; and as the laws now in force so strongly recommend the protection of an article so necessary for the amalgamation of gold and silver in the Republic, I have granted three thousand varas of land in all directions, subject to what the general Ordinance of Mines may direct, it being worked in company, to which I certify, the witnesses signing with me; this Act of Possession being attached, to the rest of the espediente, deposited in the archives under *247my charge; this not going- on stamped paper because there.is none, as prescribed by law.
" Juzgado of San José Guadalupe, December; , 1845.
“Antonio Maria- Pica,
“Assistingwitnesses: Antonia Suñol,.
“ José Noriega.”
These documents are produced from the Recorder’s Office of Santa Clara county. They were found, in, the Mayor’s office at that place in 1850, by Capt. H. W. Halleck, and by the Mayor transferred to the Recorder’s office, where they now remain. It appears that ,a large portion of the archives or papers belonging to the former Alcalde’s office in San- José, were deposited in the Mayor’s office of that place, a knowledge of which circumstance induced Capt. Halleck to institute a search in the .latter place, which'resulted in the discovery of the document. ■
t The espediente thus produced contains several papers besides those enumerated above. These papers will hereafter be referred to.
In investigating the genuineness of these documents, it .will be convenient to consider:
1st. The proof of the signatures attached to them.
2d. The evidence tending to establish that the documents were executed at the time they bear date, and were filed or- ardtdved in the Alcalde’s office. And
3d. The proofs which show that,, in; fact, the mine-.was discovered- and denounced, and the judicial possession given, as stated in the Act of Possession.
The Act of Possession is signed, by Antonio Maria Pico, as Alcalde, and by José Noriega, and Antonio Suñol, assisting witnesses. All these persons have .been sworn, and testify to the genuineness of their signatures; and- that they were- affixed on the day the instrument bears date: The, genuineness of these signatures,- and. that of Castillero, is also proved, by other witnesses.
I do not understand that the fact that the instruments were signed, by the-parties whose names they, bear; is-, seriously questioned; as; all- of- them, except Castillero, were produced; and *248testified’not only to their own- signatures, but "to’thé fact’s-which the documents recite. The theory -of the Government, which supposes these statements to he false,- must admit their readiness to affix-their names to ante-dated documents.
The,real questions, therefore,- are, when were these documents prepared and signed ? and when were they placed in the Alcalde’s office ?• ■
2. On this point we have, as. before stated, the evidence of Pico, the Alcalde, and the two subscribing witnesses, Sufiol and Noriega.
: We have also the testimony of José Fernandez, who was Sindioo- del Juzgado and Escribano of the Court in 1845. This witness’ not only swears to the handwriting of the documents and the; genuineness of the signatures, but states that he saw the espediente in 1845, when it was brought to him by Gutierrez, in whose handwriting the body of the decree is. • He also swears that’ he-saw it again in 1849, among the archives of the office, he being then Second Alcalde.
:■ -James W. Weekes, a witness called by the Government, testifies that he saw the- espediente in 1846-7, when Burton was Alcalde, and in 1848, when he was himself Alcalde. He is unable, however, positively to - identify the espediente now produced with the “little book” which he saw in the office when Burton was Alcalde. This witness, in 1848, certified, at the request of Mr. James Alexander Forbes, to a copy of the.espediente. • The copy was prepared by James Alexander Forbes from a document handed to him by Alexander Forbes, of Tepic, (who ’was-'thenr in California), not from the original in the Alcalde’s office. The certificate of Weekes, that it was a faithful and literal copy of the latter document, was obtained, but no comparison was made of the copy made by Mr. Forbes’ with the original; the witness supposing, as he states, that it was correct. The copy thus certified to by Weekes differs from that found in the Alcalde’s office in several particulars, which will hereafter be noticed.
- The claimants have also produced the original inventory of papers and effects in the Alcalde’s office, which, as was custom *249áry, was- on the 1st of Jánuary, 1846, signed by tbe ont-going Alcalde, Pico, and receipted by the in-coming Alcalde, Chavolla.
This document is produced by tbe CleTk of tbe City of San José. It was found amongst other papers which bad accumulated under tbe government of tbe Alcaldes of tbe Pueblo, and which now form part of tbe archives of tbe city. Tbe signatures and rubrics of Pico and Chavolla to tbe inventory are proved; and tbe document itself is in tbe bandwriting of - José Fernandez, tbe Escribano or Secretary of the Juzgado.
In this inventory, amongst nearly a hundred entries of papers and records, and of tbe smallest objects belonging to tbe office —such as candlesticks, old knives, tables and benches — is found a note of a document entitled “Pesecion de la mina de Santa Clara á Don Andres Castillero.”
No attempt has been made to impeach tbe genuineness of tbe signatures to this document, nor is it said that there is anything in tbe bandwriting of tbe important entry in question, or in its position on this list, which could suggest tbe idea of a possible interpolation. Unless this entry be forged, it would seem conclusive evidence that a document of tbe kind described was on file in tbe Alcalde’s office on tbe 1st of January, 1846.
Another inventony, of a. similar kind, made on tbe 10th day of November, 1846, about nine months subsequently to tbe former, has been produced by tbe United States from tbe archives of San José.
In this inventory, no entry of tbe document in question is found. If tbe lists were in other respects similar, tbe omission of this one item might possess much significance. But tbe two lists seem to be different in many particulars; and though some of tbe entries are alike in both, several which appear in tbe first are wanting in tbe second. That all tbe papers mentioned in tbe first inventory must have existed on tbe files of tbe office, and should have béen noted in tbe second inventory, is evident. When, therefore, we find not only tbe “Posecion” of tbe Mina de Santa Clara, but several other documents, omitted in tbe second inventory, -we necessarily conclude, that tbe latter was repared in tbe loose and inaccurate manner in which tbe *250public. business. of such offices was usually conducted in, those primitive, times;
A striking illustration of the incompleteness of the- second inventory is presented by the evidence offered by the United States. Three documents are produced fro.m. the Archives of San José, purporting to be orders by the Alcalde for the publication of the denouncements of mines — one of the lands of Justo Larios, another on- those of José de J. Vallejo, and a third on the rancho de Ojo de la Coche. These orders are dated in April, March and June, 1846. I find no one of them noted 'in the inventory made in the succeeding November. And yet, 1 both the documents and the inventory are produced as genuine by the United States.
I can see nothing, therefore, in the omission of the entry of-the possession of the mine of Santa Clara in the second inventory which, in the absence of any suggestion that the handwriting or the color of the ink of the entry in the first inventory differs from those of the rest of the document, (as would be t,he case if it had been interpolated after any considerable interval,) or that the position of the entry on the list would have rendered, such an interpolation possible, should weaken the force of' the evidence afforded by the inventory that a document, purporting to be the possession of the mine of Santa Clara, was on file in the Archives of the Alcalde’s office of San José on the 1st Janu- . ary, 1846
8d. As to the proofs which show the facts of denouncement, judicial possession and working of the mine about the time indicated by the documents.
We have- already seen that the subscribing witnesses, the Alcalde and José Fernandez, testify to the fact that the posses-, sion was given as described by them.
It is shown, however, by evidence, which is uncontroverted, that in December, 1845, and early in 1846, Castillero and his partners were notoriously known to be working a mine of quicksilver,- of which they claimed to be the owners by- de nouncement. That these facts were made known to the Gov mor. of: the Department, and by him communicated to the *251Supreme Government. That they were known to the United States Consul, and by him communicated to his own. Government, and also to a Cabinet Minister of-the Government of the Sandwich Islands, with whom he corresponded, and by whom his letter was published in a Hawaiian newspaper of the date of July 25th, 1846, a copy of which is produced. That the mine was, in December, 1845, worked by Indians under the superin tendence of Chard, an American employed by Castillero, who is produced as a witness, and whose employment continued until about the- middle of 1846. That in -December, 1845, it was visited and examined by Col. J. O. Eremont, to whom Castillero,, who claimed to own it, explained the Mexican mode of acquiring titles to mines by denouncement and registry, but declined' some overtures for its purchase made to him by Eremont.
Other allusions to and recognition of the possession and grant of three thousand varas, in letters, judicial proceedings, &c., at a late period, but previous to the supposed date of their fabrication, will subsequently be considered.
Among the documents alleged to have come from the City of Mexico, traced copies of which are exhibited, was a communication from Pio Pico, Governor of the Californias, to the Minister of Relations, dated Eebruary 13, 1846. In this letter Governor Pico states that he incloses a letter from Don Andres Castillero, apprising him of the important discovery of a quicksilver mine, and transmitting a sample of the quicksilver. He therefore begs the Minister of Relations to bring it to the superior knowledge of His Excellency the President, &c.
On' the margin of this letter is the usual note, stating, its reception on the. 6th of April, 1846, and that it is noted with satisfaction, &c. The letter of Castillero alluded to in the foregoing, dated 10th December, 1845, is also produced from the Mexican Archives. On searching the Archives in this City, for records of this correspondence, there was found the borrador, or office copy, of the lett,er. from Pio Pico, and a letter from Castillero — not the one inclosed by the Governor in his communication to the Minister of Relations, for of that, he states in that communication, he sends the original; but a subsequent letter *252dated Decembei 15th, 1845. In this letter he states: “ I have the satisfaction of informing you, if you have not received my other letter through the Prefecture, that .1 have discovered,” &c., repeating substantially the' contents of the former letter, which had, in fact, been received and inclosed to the Minister of Relations. It is not disputed that these documents are in the Archives. The borrador, or draft, of Pico’s communication to the Minister, is in the handwriting of Olvera, who was Secretary of the Assembly at the time.
There was also found, "at the same time, by Mr. Hopkins, the Keeper of the Archives, amongst those records, a letter from Manuel Castro, the Prefect of the Second District, to the Secretary of the Departmental Government, dated December 31,1845. In this letter he states that “ Castillero has denounced and is now working a quicksilver mine;” and after falicitating the Secretary, and through him' the Governor, on so beneficent a discovery, he adds, that he incloses a petition by Castillero for two square leagues of land adjacent to his mine. A borrador, or draft of the reply of the Secretary'to this letter is also found in the archives, but it appears to have been cancelled by black lines drawn transversely.
The handwriting and the signatures of these documents are proved by Pio Pico, who also states his recollection of having dispatched J. M. Covarrubias with his letter of the 13th of February, 1846, to the Minister of Relations, and the bottle of auicksilver sent to him by Castillero.
The testimony of Pico on this point is corroborated by that of José M. Covarrubias, who swears that he left San Pedro- in the .schooner Juanita, Captain Snook, on the 14th of February, 1846, taking -with him the Governor’s dispatch, Castillero’s letter, and a bottle of quicksilver, all of which he delivered on his arrival at Mexico to the Minister of Relations, Mr. Castillo y Lanzas. Files of the “Diaro Oficial,” the Government newspaper, published in Mexico, and of the “Monitor Republicano,” and the '“Republicano,” also published in Mexico, are produced, and under the heading of marine news there are found notices of the arrival of the “ Tuanita,” Captain Snook,-at Mazatlan, on the 2d *253of March, 1846, twelve days from San Diego; of her departure bn tbe 12th. of the same month from Mazatlan for. San Bias, having on board as passengers José Maria Covarrubias and others.
It cannot, therefore, be doubted that the letter of Castillero of the 10th of December, 1845, a traced copy of which is produced from the Mexican Archives, was1 in fact sent to Governor Pico, and by him transmitted in February, 1846, to Castillo Lanzas, Minister of Relations, together with the-dispatch, the borra-' dor of which is found in the archives>ini this city, and a bottle of quicksilver.
There are also produced by the claimants two letters from Castillero to M. G. Vallejo, of Sonoma.
In the first of these, dated December 2,1845, Castillero says: “ While waiting for the time of my departure, I have employed myself as a miner, having extracted from the same vein quicksilver, silver, and gold, in surpassing quantities.”
In the second letter, dated December 21, 1845, he, amongst other things, informs Vallejo that he has found such abundance of quicksilver that he has extracted twenty pounds of it from twenty arrobas of ore, &c.
These letters are produced and proved by General Vallejo. I do not Understand that the genuineness of Castillero’s signatures to them is disputed. As Castillero left California in the spring of 1846, and:has never returned, they must have been written about the time they are dated, unless we suppose they have since, and after an interval of many years, been written in Mexico, ante-dated, and sent on to Vallejo to be produced by bim — a supposition which the contents of the letters and the allusions in them to personal matters and contemporaneous events of slight importance render wholly inadmissible. There is also produced by the claimants a copy of the Polynesian, of the date of July 25th, 1846, which contains a letter from G. P. Judd, the Minister of Finance of the Hawaiian Kingdom, to the editor of the newspaper, inclosing a letter received- by the Minister from Thomas O. Larkin; United States Consul at Monterey, dated June 24, 1846. In this letter, which is also published in the Polynesian, *254•Mr. Larkin informs Mr. Judd of the discovery of a quicksilver mine seventy miles north of Monterey, and states, that in 1845, “ a Mexican being in the vicinity examined the rock and immediately denounced the place before the nearest Alcalde, and then made known what .it contained. The owner, with a priest, in a small and imperfect manner has commenced extracting the metal.” After describing the process adopted by them, he adds: “ They obtain about fifteen per cent, of the metal.”
'The receipt of this letter in the Sandwich Islands is sworn to ■by the editor and publisher of the newspaper. He is wholly unimpeached. The fact that it was published in the newspaper on the day alleged,'is sworn to by a gentleman of San Francisco, who read it, and whose attention was particularly drawn to it. A copy of the paper is produced and filed. From among the papers of the late Mr. Larkin is produced, by his son, the reply of Mr. Judd to his-father’s communication. The reply is dated July 20, 1846. It acknowledges the receipt of Larkin’s letter of the-24th ultimo, (June,) with a specimen of the ore, and it states that he had sent it to the editor of the Polynesian for insertion. The handwriting and signature of Mr. Judd are proved by persons intimate with him.
It has already been mentioned that files of several Mexican newspapers, published in 1846, have been produced by the, claimants. In the “ Diario del Gobierno de la República Mexicana,” of the 27th December, 1846, we find credited to the “Espia-de la Frontera,” a newspaper not produced, a notice of the acccount given in the “ Polynesian,” of the 24th July, of the discovery of a quicksilver mine seventy miles north of Monterey, and the same notice purporting to be taken from the same paper, the “ Spy of the Frontier,” is found in- the “Republicano,” of the ' 9th December, and in the “ Monitor Republicano,” of the 6th.
It is unnecessary, however, to dwell on these incidental corroborations ; for the fact of the reception of Larkin’s letter by Mr. Judd, and its publication in the Polynesian cannot be doubted.
The claimants have also produced from the files of the State Department at Washington, extracts from official dispatches of *255Mr. Thos. O. Larkin to the then Secretary of State. These extracts are certified by Mr. Cass, November 28, 1859.
The first dispatch of Mr. Larkin is dated May 4, 1846.
The extract produced states that — :
" Near the Mission of Santa Clara there are mountains with veins of quicksilver ore, discovered by D. Andres Castillero, of Mexico, in 1845, which the undersigned has twice seen produce twenty per cent, of fine quicksilver, &c. * * ****** By the laws and customs of Mexico respecting mining, every person or company, foreign or native, can present themselves to the nearest authorities and denounce any unworked mine. The authorities will then, after the proper formalities, put the discoverer in possession, &c. *' * Up to the present time there are few or no persons in California with sufficient. energy or capital to carry on mining, although a Mexican officer of the army, a Padre, and a native of New York, are on a very small scale extracting quicksilver from the San José Mine.”
There is also produced from the consular book of Mr. Larkin, a dispatch addressed by him to the American Minister at Mexico, dated April 8, 1846.
After mentioning the intended departure of Don Andres Castillero from this port (Monterey) in a few days, for Acapulco, on board the Hawaiian barque Don Quixote, as Commissioner to Mexico, from General José Castro, and that he would arrive in Mexico by the 25th or 30th of this month, (April,) Mr. Larkin says: " At the town of San José, eighty miles from Monterey, Don Andres Castillero has discovered a quicksilver mine. The ore produces from fifty to sixty per cent. . I have seen him, from an old gun-barrel, in thirty minutes run out about thirty per cent, in pure quicksilver. This must bé a great advantage to California.” In a letter to Captain Montgomery, of the U. S. «hip Portsmouth, dated May 2, 1846, Mr. Larkin communicates to that officer substantially the same information.
. These extracts from Mr. Larkin’s correspondence are important, no.t only as showing that the mine had been discovered,¡and was being worked in the spring of 1846, but that the made-of -acquiring.a mine, as understood by -Larkin, was precisely -that *256alleged to have been adopted in this case. And further, that “the officer,” the “Padre,” and “the native of New York,” spoken of as working the mine, were undoubtedly Castillero, Padre Real, and William G. Chard, as will hereafter appear.
The whole official dispatch of Mr. Larkin to the Secretary of State, is produced by the son of the former, from the letter-book of his father. The portions extracted and certified to by Mr Cass are all that is important to notice.
That the mine was worked by Castillero in January, 1846, is shown by the deposition- of Col. Fremont.
That gentleman states, that in January, 1846, he visited the mine in company with Capt. Hinckley; that the latter intro duced him to Castillero, the owner of the miné, who showed him the excavations, the heaps of ore, &c., and explained the process of extracting the metal. Impressed with the value of the mine, he spoke slightly to him about purchasing it; but Castillero was not disposed to converse on the subject. Castillero informed him that he had acquired his mine by denouncement, and explained the nature of the proceeding. Acting.on this information, Col. Fremont subsequently denounced the mines upon his own property of Mariposa.
He-also adds, that Capt. Leidesdorff, with whom he had spoken as to the purchase of the mine, supposed it might be effected for $30,000, “ an immense sum of money in California in those days.”
The working of the mine, so far back as December, 1845, is also proved by Mr. Wm. G. Chard. This witness testifies that he was employed by Castillero and the priest Don José Maria Real; that he went there to open the mine in November or December, 1845; that the metal was extracted by heating the ore in gun-barrels; that while working in this way, the possession was giveD, in December, 1845, or January, 1846. The witness .enumerates among those present on that occasion, the Alcalde Pico, Suñol, Noriega,- Fernandez, and the old man Berreyesa. He does not recollect to have seen Castillero on the.ground when possession was given — a circumstance, as observed by counsel, not surprising — for Castillero, Chard states, was constantly coming and *257going, and on one visit stayed there eight days; but the statement indicates the good faith of the witness in declining to swear to what he did not recollect.
Mr. Chard describes the operations at the mine. They were conducted by himself, another white man, a blacksmith whom they called Old Billy, and some Indians. He built a furnace and smelted the ore in some large whaler’s try-pots, capable of holding three or four tons of ore. He remained in this employment until August or September, 1846.
Chard states himself to be a native of Columbia, county, New York. He is evidently the "native of New York” to whom Mr. Larkin refers in his dispatch. His testimony is uncontradicted, and his character unimpeached.
There is much other testimony which corroborates the foregoing on various points, but which it is unnecessary to notice, It relates chiefly to the first visit of Castillero to the mine; his first experiments with the ore; his trip to Sutter’s Fort and visit to Vallejo, at the baptism of whose child he was godfather, and who thus became his compadre, by which title he addressed him in his letters already cited; his return to Santa Clara, and the-formation .of the partnership. between himself, Castro, Father Real and the two Robles, in November, 1845. As this writing of partnership is conceded to be genuine, and as .it .relates to the working of the mine of silver, gold, and quicksilver, on the land of José Reyes Berreyesa, the fact that the mine was discovered at that time must be taken to be admitted.
We thus find that early in December, 1845, the discovery and denouncement of the mine .was made known to the Governor of California, and the information, with a sample of the quicksilver produced, by him transmitted to Mexico. That in May, 1846, Mr. Larkin officially communicated the fact of the discovery and the working of the mine, with .an explanation of the mode of acquiring title to it under Mexican laws, to our Government.
That in June of the same year, he informed Mr. Judd of the discovery of the mine in 1845, and the fact that it had been im-mediately denounced.
That in January, 1846, Col. Fremont visited the works, and *258conversed with the “owner;" that its reputed value was then about $30,000.
That it had been worked from the November or December preceding by a person employed by Castillero, and continued to be worked by the same person, until August or September, 1846.
It has appeared to me incredible that Castillero, a Mexican, acquainted with mining laws, should, on discovering so valuable a mine, have omitted to denounce it. That he knew the necessity of the proceeding, we learn from Fremont, as did also Larkin, a foreigner, as is shown by his dispatch.
To suppose that Castillero, with a' knowledge of the great value of the mine, of the necessity and efficacy of a denouncement, neglected, notwithstanding his statements to the Governor, to take the simple proceedings he is alleged to have done, and that Larkin was entirely mistaken as to the fact of his having done so, is to suppose what I cannot but consider a moral impossibility.
I am aware that the fact that the mine was denounced by Castillero, and claimed and worked by him as owner, does not necessarily show that a juridical possession of it was given, or that the record of that possession is genuine. It is shown, however, by evidence in part introduced by the United States, that the juridical possession, as alleged to have been given, was recognized and alluded to in the correspondence of the parties, and in official acts of Alcaldes, before the date at which, on the hypothesis of the United States, the forgery was committed.
So early as January 30th, 1846, James Alexander Forbes, in a letter to Eustace Barron, of Tepic, apprises the latter that “D. Andres Castillero, a sort of Commissioner from the Mexican Government, is now working a quicksilver mine near the Mission of Santa Clara, which has yielded forty per cent, upon the assay of mineral employedand on the 5th of May, 1847, the same person, who had in the interval been placed in charge of the mine, in a letter to Alexander Forbes,-who Jiad become a part owner, urges him “to obtain from the Government of Mexico the unqualified ratification of the judicial possession which was *259given of the mine by the local authority of this jurisdiction, including, if possible, the three thousand varas of land given in that possession as a gratification to the discoverer.” The fraudulent nature of this suggestion is obvious, but it nevertheless implies that a juridical possession- and a gratification of three thousand varas had already been given, a ratification of which was thought necessary.
In the'preceding March, the same person, together with Castillero, Castro, Real, and the Robles, had been sued by the owneT of an adjoining rancho for working on it contrary to law. It would seem from the imperfect record of that suit, produced from the archives of the Alcalde’s- office, that a survey of the mine was ordered and the plaintiffs mulcted in cqsts; a result which could hardly have occurred if the persons working the mine on the lands of another had been destitute of record evidence of their rights. The fact that a survey of the mine was ordered, would seem to be a recognition of the mine owner’s right to his mine, and that the boundaries of his possession were capable of being ascertained.
On the 14th of August, 1847, allusion to this suit, and a still more explicit reference to the juridical possession, is made in. an official letter of James Alexander Forbes, then H. B. M. YiceConsul for California, to John Burton, Alcalde.'
In this letter Mr. Forbes informs the Alcalde that “ two persons have commenced digging a pit, by the direction of Mr. Cook (the plaintiff in the former suit), within the limits of the juridical possession of the mine.” He adds, “ Permit me to refer you to the documents which exist in your office, upon which was-founded your conviction. o,f the justice of your decision in March last in relation to the claim of Mr. Cook, and to request that you will be pleased to adopt such measures for the protection of the owners of the mine, and of those who are legally interested in the. same, as you may deem most.conducive to that end.”
The genuineness of.this letter is not disputed. It will be observed that, though ■ written in August, 1847, it refers the Alcalde to documents existing in his office upon which a decision rendered in the March preceding was based.
*260On the 19th of January, 1848, Alexander Forbes, who had come to California, made a petition to the Alcalde, Weekes, to “ visit • and inspect the mine, as required by the Ordinances, and to determine the direction, and inclination of the vein, for the purpose of reforming and correcting (since there is occasion for it) the boundaries of the former Act of Possession, and to correct such other mistakes, as may appear in it.”
In conformity with this petition, the Alcalde proceeded to inspect the works; and having ascertained the true course of the vein,' and admitted the right of the owner to an improvement of stakes (mejora de estacas), he established his boundaries, assign ing to him four pertenencias, the location of which he designates but without prejudice to the right and title of the mine (siendo constante el derecho y titulo de la mina) to the gratification or gift (gracia) of land conceded in the original Act of Possession. 1 Whether the four pertenencias which were thus designated were all which, under the ordinances, a discoverer, though worl¡ • ing in company, was entitled to, we will hereafter consider. The only purpose for. which the proceeding is now referred to, is ho show that its date (January, 1848) and about the supposed time of the. alleged forgery, “an original Act of Possession,” containing a “ gracia ” of land of a much larger extent, is plainly alluded to as existing; nor is the force of this fact weakened by the circumstance that Weekes, the Alcalde, may have been ignorant, and willing to comply with all that Alexander Forbes required; for the fact that the latter inserted such an allusion in the document he may,have caused Weekes to execute, is at least evidence that at that early day he claimed that there was in existence an original Act of Possession, including a gracia of an extensive tract. It .will be observed that the petition of Alexander Forbes to Weekes is dated January 19th, 1848. Its object was to procure the judicial ascertainment of the inclination and deptf of the vein, to correct the boundaries of the former Act of Fois.ession, and to decide upon an increase of pertenencias and the square corresponding to them. But if. at that very time, Forbes had already fabricated, or was about to fabricate, an Act of Possession, which was to be ante-dated and placed in the archives *261where no document of the kind had hitherto existed, the application to W sekes, and the designation of pertenencias by him, would ■ be wholly superfluous, if not absurd; for in the forged paper which was to serve as the original Act of Possession by the Mexican authorities, the designation of pertenencias might have been inserted and the boundaries established in any way the forger might desire. All objections or doubts as to the authority of an American Alcalde to act under Mexican Mining Ordinances would thus have been avoided’; and the same Alcalde who, according to the theory of the United States, was induced to recognize and affirm the existence of an Act of Possession, either not in his office or recently forged and placed there, could, with equal facility, have been brought to recog^e an Act of Possession which should be free from the errors ’and uncertainties which he was called on to correct, and which Should contain as many pertenencias as he was desired to designate.
Similar allusions to the original registry and Act of Possession are found in various judicial proceedings during the year 1349. On the 18th October of that year, Robert Walkinshaw, between whom and James Alexander Forbes a contest for the possession of the mine had arisen, filed a complaint against the latter, averring himself to be “the owner of one-eighth of the mine, by title derived under the original act of registry.
Previously ..to the filing of this complaint, Mr. Horace Hawes, a lawyer of much acuteness, and very familiar with Mexican law, had denounced the. mine before the Alcalde for abandonment. In this denouncement he describes it “ as known in its original title of registry as the Mine of Santa Clara.”
In the proclamation issued thereupon, on the 23d October, 1849, the Alcalde describes the mine “as known and designated in its original act of registry as that of Santa Clara, and now known by the name of New Almadén.” On the refusal of the Alcalde to take jurisdiction of the proceeding, Mr. Hawes files a protest, dated’ 15th ■ November, setting forth that, “besides having failed to work the mine, the alleged, owners had never a squired any title thereto, by reason of the insufficient registry *262thereof, which he stands ready to prove in Court by witnesses records and documents,” &c.
As Walkinshaw, though he had originally obtained possession of the mine as the agent of Castillero and bis assigns, was in these proceedings endeavoring to acquire the mine for himself, and co-operating with and assisted by his attorney, Mr. Hawes,
. these references to the original act, or title of registry conclusively show that such a document was on all sides admitted to exist, though Mr. Hawes maintained it to be “insufficient;" nor is it conceivable that when Hawes and Walkinshaw, by possessory suits, by denouncement for abandonment, by purchasing the lands of adjoining rancheros, &c.,.were struggling with so great pertinacity to obtain the mine for themselves, they should have utterly failed to disclose the fact, of which Walkinshaw could not have been ignorant, that no registry had ever been made, and that the document purporting to be the act of possession was a recent forgery, then lately interpolated among the archives.
In the correspondence between James Alexander Forbes and Alexander Forbes, and the other- owners of the mine, the neces- ' sity of procuring fraudulent and ante-dated title papers from Mexico, is repeated and urgently represented. But the fraud recommended is the fabrication of an absolute grant of two sitios of land, and a ratification of “ the acts done by the Alcalde in the possession given by him of the quicksilver mine in his jurisdiction.”
Such are the very terms of the memorandum of “ documents to . be procured by Castillero,” alleged by James Alexander Forbes to have' been left by him- in Tepic, in May, 1849. And in .October of.the same year, chagrined, it would seem, that his suggestions hadnot yet been acted on, he complains that he is obliged to depend on “ the precarious and illegal possession of the mine granted by the Alcalde of this District to Castillero, who was in reality the judge of the quantity of land given by the Alcalde.”
Whether the doubts here expressed as to the legality of the possession be well or: ill-founded, it.is clear that in this most *263confidential communication, where no motive existed for. suppressing or distorting the facts of the cáse, that possession is treated as having actually been given, and the record of it as actually existing and genuine, though the possession itselt is considered precarious ánd illegal.
Having thus reviewed the evidence which establishes the genuineness of the act of possession by the testimony of the witnesses to the document; of those who were present when the possession was given, and who testify to the fact; by the production of documents from the Archives of California, and the correspondence, both private and official, of the United States Consul at Monterey; by the-testimony of unimpeached witnesses that the mine was, early in 1846, claimed by and Recognized aá belonging to Castillero, and worked by him as such; by the proofs afforded, by a correspondent admitted to be genuine, that the act of possession was treated and spoken of by the parties, when writing in the most confidential manner, at a time when they could not have been ignorant of the facts, as genuine, though perhaps invalid, and was so recognized in various judicial proceedings by persons who would certainly have discovered and denounced any forgery which might have been committed; and finally, the intrinsic improbability of the supposition that Castillero would have omitted to denounce a mine, of .the great value of which he was fully aware, and the means of acquiring a title to which, under the Mining Ordinances, he was well acquainted with; as was also Mr. Larkin, a resident foreigner. I shall next consider more particularly the nature and contents of the documents produced by the claimants, as well as the principal objections to them urged by the counsel for the United States.
These documents are four in number. The first is the original espediente, produced from the Archives of the City of San José, and discovered by Capt. Halleck, in 1851, among the Archives of" the old Alcalde’s office, in the office of Belden, the Mayor of San José. ■
This document contains the two representations of Castillera *264and the act of possession with the original, signatures of Castillero, the Alcalde, and the assisting witnesses.
It also contains a petition of José Castro, dated June 27,.1846, In this petition, Castro states that he represents the person and rights of Capt. D. Andres Castillero, and other individuals composing the company in the quicksilver mine which Señor Castillero denounced on the 3d day of December, 1845, and of which possession was given on the 30th of the same month and year. He therefore claims that, in conformity with the Mining Laws, there be given three pertenencias in continuation of the first; and that this petition be attached to the espediente of denouncement, and remain among the Archives. On the margin of this petition is an order, signed “ Pacheco,” directing it to be archived as prayed for.
If this document be genuine, it affords important evidence of the date of the judicial possession.
The handwriting of the petition is sworn by Fernandez to be that of Benito Diaz. The signature of Castro is proved by himself, and he testifies that it was signed at its date, having been prepared from a draft left with him by Castillero. He also states that the handwriting of the marginal order is that of Salvio Pacheco, and the signature that of Dolores Pacheco; and that after sending the petition to the Alcalde he left Santa Clara, but was informed, on his return, by the Alcalde, in presence of Manuel Castro and Juan B. Alvarado, that this petition had been granted.
Salvio Pacheco is also produced, and testifies to his own handwriting and the signature of his brother, the Alcalde. He, swears that the order was written at its date. As this witness has been produced by the United States to sustain the character of a witness impeached by the claimants, it is presumed that his own character is not liable to the imputations from which the United States rely on him to shield another.
The only .evidence tending to show that the petition was not written at its date is that of Benito Diaz. He does not precisely specify the time at which it was written; but it can be gathered *265from Ms testimony that it was at the end of 1847, or the beginning of 1848. , •
But tMs witness is, unfortunately, too well known to the Court to permit any reliance to be placed upon his unsupported declarations. I have not been able exactly to understand on what theory tMs petition is supposed to be forged.
If the act of possession be genuine, it is immaterial, so far as the rights of the parties are concerned, whether the petition be ante-dated or not; but it is not easy to imagine the motive of the parties in fabricating a petition addressed to an Alcalde who had ceased to be in office, and whose ante-dated marginal order did not even purport to convey any rights. Had the marginal order contained a grant of an increased number of pertenencias, some motive for fabricating it would have existed; but it merely directs the petition to be archived; and the application for an increase of pertenencias is in substance renewed in the petition of Alexander Forbes to Weekes, made in 1848, at the very time when we are asked to suppose this petition of Castro was fabricated. If the act of possession be genuine, and the Castro ' petition be ante-dated, the conduct of the parties seems to me inconsistent, absurd, and inexplicable. But if the act of possession was itself fabricáted in 1848, and did not exist at the date when the Castro petition was fabricated, the acts of the parties are equally incomprehensible. Of what use could it be to have a petition for an increase of pertenencias included among archives which contained no registry or denouncement, or grant of any pertenencias whatever ? It may be said that the fabrication of the act was then in contemplation; but if so, why not make that document contain all that was desired as to the number of pertenencias, designation of boundaries, &c ? Why accumulate superfluous forgeries, involving the necessity of new perjuries, and largely increasing the risks, of detection; and why resort to the proceedings had before Weekes for tbe ascertainment of boundaries and an increase of pertenencias, when it was known that the fundamental title to the mine had yet to be forged, and might be framed in any way to suit the interests of the parties ?
*266The counsel for the United States has urged upon the Court, the inconsistency between the petition of Castro for three additional • pertenencias and the-supposition that a concession of three thousand varas in all directions, amounting to nine hundred pertenencias, had already been obtained. ■ But this objection, whatever be its force, seems to admit the genuineness of the Castro petition; or, it attributes to the fabricators the absurdity of contriving at the same time two forged documents repugnant to each other. That an act of possession, either genuine or forged, was in existence when Castro’s petition was drawn, is evident, for the dates of the denouncement and of the judicial possession are given. To what end then, file a petition which could have no other purpose than to furnish a plausible argument against the genuineness of the previous concession of three thousand varas ?
Prom all the evidence, and on consideration of all the circum- ; } stances connected with this petition, I confess myself unable to discover any sufficient reasons for considering it forged.
The claimants have also produced a document alleged by them to. have been delivered to Castillero shortly after the date of the judicial possession.
It contains certified copies of the two representations of Castillero, purporting to have been made on the 13th January, 1846, and a duplicate original of the act of possession signed by Antonio Maria Pico. Appended to these is a receipt by Pico for twenty-five dollars, dated December 30, 1846.
This document was recently found among the papers of Bobert Walkinshaw, deceased. It is shown in the deposition of Hall McAllister, Esq., who was counsel for Walkinshaw in a suit respecting a share of the mine, that the document was placed in his possession by Mr. Walkinshaw early in the year 1853, and that it remained in his office until May, 1858, when fee delivered it to Walkinshaw.
The genuineness of the signatures is testified to by all the assisting and subscribing witnesses, except José Sufiol, who is dead,
This espediente does not contain the petition of Castro, for *267the certified c&pies appear to have been made on the 18th January, while the Castro petition was not filed until the June following. There is one circumstance, however, which, though entirely accidental, affords important proof of its genuineness. In copying the first representation of Castillero, it appears that a line was omitted. This has been supplied by another hand, and the handwriting is that of Castillero. As Castillero left California early in 1846, and has never returned, we must suppose that this interlineation was made before he left? or else that the document was fabricated here at a later period, sent on to Castillero in Mexico, interlined by him, and returned to Walkinshaw’3 possession before January, 1853, when he delivered it amongst other papers to Mr. McAllister. But that he was' in possession of “ some important papers of the original registry of the mine,” in 1849, appears from James Alexander Forbes’ letter of October 28, of that year; and it also appears .from the certified copy made out by Weekes on the 20th January, 1848, that the espediente we aTe now considering must have been the document which James Alexander Forbes copied, and which Weekes erroneously certified to be a literal copy of the original in his office. The year in which it is supposed by the Government that these titles were- fabricated, in 1848. How, then, could this espedient have been made, certified to by the subscribing witnesses, .sent to Castillero, interlined by him, and returned to California in time to be copied by Forbes, and certified to by Weekes, on the 20th January, 1848 ? And why, if the Castro petition had then recently been written by Benito Diaz, and ante-dated, was it not included in this espedient, concerning which so much pains were taken?
The omission of the Castro petition in this espediente seems to me, I confess, an important corroboration of the statements of the witnesses who prove the genuineness of the signatures.
There is also produced the copy of this espediente, by Weekes, already alluded to. Weekes himself swears that he made it, and he is corroborated by James Alexander Forbes. I do not understated this fact to be disputed.
The claimants have also produced a copy-of the original espu*268diente, certified by Pedro Ohabolla, on the 13th August, 1846, to be a literal copy of the original acts (autos) in the archives of his office.
The whole of this copy is proved by Salvio Pacheco, to be in his own handwriting, and to have been made at its date. It contains the Castro petition, which had been made in the preceding June, and attached to the original on file, and it even omits, like the original',' the date of the act of possession — that date being on both papers December — 1845, and not December 30th, as in the testimonio or duplicate original given to Castillero. That the document was scrupulously compared is further evident from the fact that in the copy of the date of Castillero’s first representation is the Mission de Santa Clara, November 22, de. 845, instead of 1845 — and on turning to the original, we find in the printed copy that the first figure of the date is separated by a comma from the three other figures. I have not had an opportunity to examine the original, which remains at San José; but it would seem from the printed Transcript that the date is written in an unusual manner, which has been either exactly reproduced or has led to the omission of the first figure in the copy.
It has been earnestly contended by the counsel for the United States, that the’ non-existence of the original espediente in the archives of San José, even so late as December 23d, 1850, is proved by the affidavit of Mr. Halleck, at that tiine, and since, Superintendent of the Mine, and counsel for James Alexander Forbes. in a suit brought' against him and Walkinshaw by the Berreyesa. In this affidavit, which was made in answer to an order obtained by the plaintiffs, in the suit upon the defendants, requiring them to' produce the papers on which they intended to rely as a defence, or copiés- thereof, Mr. Halleck swears:
That the defendants have exercised all due diligence to procure and produce said papers in Court, by writing immediately on the ■ receipt of the above-mentioned, order to the parties in Mexico who holA.fhem. But to this date the defendants have not .Received them. * * * . And the defendants specify among /cithers he following papers and documents as absolutely neceg*269sary to them before they can proceed with the trial of this cause, viz.:
“1st. The original denouncement of the mine of New Almadén, and the juridical possession given of the same year 1845.
“ 2d. The confirmation of said denouncement and possession by the Supreme Government in 1846, and prior to the late declaration of war by the United States against Mexico.
“ 3. The original grant of land, including said mining posses- • sion, made by the Supreme Government of Mexico, prior to the declaration of war as aforesaid, to the owners of said mine.”
It is obvious that, this affidavit states that the original denouncement and judicial possession of the mine was then in Mexico, and not in the Alcalde’s office. That Mr. Halleck, then lately appointed Superintendent of the Mine, might have been • ignorant of the fact that those papers were among the archivi s of the Alcalde’s office, is conceivable; and he may also ha1, e accepted the assurances of his client, James Alexander EorbeB, that he had exercised all due diligence to procure them, as su fficient to authorize hi3 affidavit of that fact; but it cannot be supposed' that James Alexander Eorbes could have labored under a similar misapprehension. We have already seen that in August, 1847, he had, in an official letter to Alcalde Burton, referred him to the documents existing in his office, upon,which was founded his conviction of the justice of his decision in relation to the claim of Mr. Cook, in the preceding March.
In January, 1848, he had himself copied and procured Weekes to certify to the espediente containing certified copies of Castillero’s representations and a duplicate original of the act of possession. This espediente has since been produced from among Walkinshaw’s paper's, and its possession by him, or his counsel, is traced back as far as 1853. The circumstance that it is interlined in the handwriting of Castillero, proves it to have been at some time in his possession. • As Castillero left California early •in 1846, it is in a high degree improbable that the dr .ament - could have been fabricated here, sent on to him in'Mexico, and returned before January, 1848, when it was copied by Forbes and certified; nor does such a hypothesis comport with the *270theory of the United States, which supposes the forgeries to have been committed about the time of the Weekes certificates. It.is almost equally improbable that this document, after being copied by Weekes, should have been again sent to Mexico, and returned to Walkiñshaw in time to be found among his papers in 1858.
There is no reason to presume that the Weekes copy ever left this State. It was produced by the claimants when proceedings were first instituted before the Board of Commissioners, in 1852. It is clear, therefore, that as the order of the Court called for the documents on which the defendants relied, or copies thereof' it was easy for Mr. Forbes to have satisfied the order by furnish ing the copy required.
It also appears from his own letters that he had already received a notarial copy of the Lanzas dispatch on which they rely. A copy of this could also have been furnished. We are thus compelled to seek for some other motive for withhholding those copies which the order required, and which, on any theory of the case, he could readily have furnished. That motive seems to me apparent. From the 5th of May, 1847, up to the 26th of February, 1850, James Alexander Forbes had not ceased to urge upon his associates the necessity of obtaining fabricated documents of title. In his letter of February 26th, 1850, he again dwells upon the necessity of carrying his suggestions into effect, and specifies the required documents as follows:
“1. A full and complete ratification of all the acts of the Alcalde of this jurisdiction, in the possession of the mine.
“2. A full and unconditional grant to Castillero of two sitios of land, covering that mining possession, expressing the boundaries stated by me in the memorandum I left with vou at Tepic, Both of these documents to be of the proper date and placed in the proper Governmental custody in Mexico.”
On the 7th of April, 1850, Alexander Forbes, of Tepic, writes to James Alexander Forbes: “ Mr. Barron and Castillero have arrived in Mexico, and have every prospect of finding the document you are aware of, and which will, of course, be forwarded as soon as possible ”
*271When, therefore, in December 1850, James Alexander Forbes represented to Mr. Halleck, that papers had been sent for, and were daily expected from Mexico, it cannot be doubted that fce referred to the documents, the fabrication of ¿which he had so urgently recommended. The description of the expected documents in the affidavit, in no respect applies to the Lanzas dispatch; for the ratification, and the grant of two sitios, are evidently described as two separate instruments, and they are spoken of as “ of the proper date," viz.: “ prior to the late declaration of war by the United States against Mexico;” that is, prior to the 13th of May, 1816; whereas the Lanzas dispatch is dated on the 23d of May.
We have already shown that James Alexander Forbes could readily have complied with the order of the Court by furnishing “copies" of the denouncement and registry, and of the Lanzas dispatch, both of which he must have then had in his possession. The statements, therefore, which he made to his counsel, and on which the affidavit was founded, were evidently made for delay, and to enable him to receive the more full and explicit documents he so much desired. Such being the motive and intent of Mr. Forbes, the allegation that “ the original denouncement of the mine was in Mexico,” may well be taken as made in furtherance of the same object, and to give increased force to his showing, for the postponement which he was so anxious to obtain.
That Mr. Halleck should have embodied in an affidavit these representations of Forbes will, perhaps, not be surprising to any one acquainted with the facility, often too great, with which counsel receive and adopt in affidavits statements made by their clients in the progress of a cause. Such has seemed to me the more probable explanation of this affidavit. For, whatever, may have been therein sworn to, I can see no reason for concluding, on the strength of that affidavit alone, and in the face of tha mass of testimony which had been adduced to the contrary, that the espediente of the mining possession was not then in the Alca de’s office.
Tt was also strongly urged by the counsel of the United *272States, on the hearing, that the. non-existence of the alleged act of possession and concession of three thousand varas was proved by the acts of the parties themselves and their dealings with each other.
The circumstances chiefly relied on were— ■
1. The fact that in the Castro petition, drafted by Castillero, three pertenencias are asked for, in continuation of -the one already obtained.
2. That in the' power of attorney executed by Castro, on the 12th June, 1846, to McNamara; in the contract by McNamara, under the power of attorney, executed in Tepic on the 28th November, 1846 ; and in the ratification of that instrument by Castillero in Mexico, on the 17th December, 1846, the mine is spoken of as consisting of only three pertenencias, while, the grant of three thousand varas is not mentioned.
8. That in the numerous deeds and acts of sale by which, barras or shares in the mine were transferred, the writing of partnership executed by the original owners of the mine is the only document referred to, no allusion is made to the possession of three thousand varas; or to any tract of land whatsoever; and the Espediente of Registration is, for th® first time, mentioned in the deed from Padre Real to Walkinshaw, dated August 9th, 1849.
These objections, so far as they relate to the mention, of the pertenencias, will more conveniently be- considered in treating of the legal effect of the judicial possession; but in respect to omission of 'all allusion in the deeds, either to the registration or to "lands,” it is .to be observed that to many of these deeds, James Alexander Forbes was a party. We find by his lettér of May 5th, 1847, that at that date the " ratification ” of three thousand varas of land given by the Alcalde, and the concession of two sitios of land to Castillero, were known to -and spoken of by him as having actually been made, the object, of that letter being to urge the necessity of obtaining an unqualified ratifica- ' tion of the mining possession, and a positive, formal and unconditional grant of.the two sitios. Similar references to thq-adí of possession, and the order of Castillo Lanzas, occur through*273out -bis correspondence. And as we have already seen, tbe former document and tbe fact of registration is referred to in .various legal proceedings by Forbes and Walkinsbaw in tbe ■years 1847-8; as also in Alexander Forbes’ petition to Weekes, in-January, 1848.
Tbe inferences, therefore, wbicb might otherwise be drawn from tbe silence of tbe deeds on this point, seem to be repelled by the fact that, in letters and various judicial proceedings, tbe' registration, the grant of three thousand varas, and the conces sion of two leagues, are frequently spoken of and claimed to have -been made.
It will be noticed that in the first representation of Castillero, dated November 22, 1845, the mine is described as a vein of silver with a ley of gold; and, by his second representation, it •appears that -he subsequently, and at some time previous to December-3d, discovered it to contain quicksilver.' The writing of partnership, however, dated November 2d, describes a silver' mine with a ley -of gold md quicksilver, showing that twenty days previous to his first denouncement he must have beso aware of the existence of quicksilver in the vein. This di» crepancy is forcibly urged by the counsel of the United State e, as affording conclusive proof that the alleged denouncemen .s are forgeries.
It seems, from the evidence produced by the claimants, that in the month of October, 1845, Castillero and Castro set out from Monterey, to visit General Vallejo, at Sonoma, and General Sutter, at Sutter’s Fort. On their way, Castillero, at the suggestion of Castró, examined the spot which, as the latter told him, ■bad for a long period been reported to be a mine, but óf what kind was unknown. He assayed the ore, and found a little gold and silver, and a small quantity of quicksilver. The latter he Considered of no importance.
The party proceeded to. Sonoma, and thence to Sutter’s Fort, and -set out ón -their return on .the 12th November. On reaching Santa Clara, -Castillero made further assays of the mineral. “He then discovered,” says Castro, “abundance of quicksilver, denounced the mine as a quicksilver mine, and formed a com*274pany to work it.” But this statement is evidently erroneous, for the writing of partnership is dated November 2d, and, if exc cuted at its date, must have been. made when the parties were on their way to Sonoma and Sutter’s Fort, and not on their return from the latter. But if Castillero, at the latter date, had discovered quicksilver in large quantities, how can we -account foi his first representation,' which omits all mention of that metal, nor for his second representation which announces the discovery of it, as having been made after the date of his first representation, i. e. after November 22d.
It is quite probable, however, that Castro may be in error, if he means to state that Castillero discovered the abundance of quicksilver and denounced the mine as a quicksilver mine immediately on his return to Santa Clara, Castro himself went on, as he states, to Monterey. The party, having left Sutter’s Fort on the 12th November, must have reached Santa Clara between the 16th and 20th. It may well be said, therefore, that Castillero made his first representation immediately on his arrival, and subsequently made the further assays spoken of by Castro, in consequence of which he orepared his second or amended denouncement. On this hypothesis we can account for his omission to mention the existence of quicksilver in his first denouncement, as he did not then know that it existed in sufficient quantities to deserve attention. But whatever explanation of this discrepancy be .offered or conjectured, I have been unable to perceive how it furnishes the conclusive evidence of the fraudulent character of the denouncement, which the counsel for the United States supposes it to afford.
if these papers were forged about the year 1848, they must have been forged at a time when the character and great value of the mine were well understood. "What motive, then, can be suggested for fabricating two representations, in one of which ihe existence of quicksilver in the vein was entirely ignored?
Impressed, as the parties must then have been, with the great value of the mine, as a mine of quicksilver, can it be supposed that, merely to give the appearance of truth to the documents *275they were fabricating, they caused tbem to express a pretended ignorance of tbe nature of tbe vein ?
Even if so refined and subtle a cunning could be attributed to tbem, the same cunning would not have suffered tbem to over- . look tbe fact that tbe writing of partnership existed, wbicb fixed upon tbem tbe knowledge of tbe existence of quicksilver in tbe ■vein twenty days before tbe date of tbe first denouncement.
vI confess that, though unable to demonstrate bow bis discrepancy bas occurred, I perceive in it rather what tbe ingenious counsel for tbe United States bas on another occasion characterized as' tbe “deshabille of truth," than that meretricious ostentation of consistency, wbicb falsehood would not bave neglected to display.
But tbe circumstance that I bave found most difficult to account for, and wbicb most strongly suggests suspicions as to tbe genuineness of tbe Act' of Possession, is tbe failure of Castillero to exhibit, or even mention, it during bis protracted negotiation with M. Negrete. Tbe correspondence of tbe latter with bis principal, Alexander Eorbes, shows that Castillero was called on to exhibit bis title-papers. He responded by producing tbe writing of partnership and, after a little delay, tbe Lanzas dispatch. He .not only does not exhibit tbe “ copia autorizada,” wbicb, if genuine, be must bave received before bis departure from California, but be does not even mention that be bas been' put in possession and received a concession from tbe Alcalde of a tract of three thousand varas in extent, nor that any such possession bad been ratified by tbe Supreme Government. So far as appears from tbe instrument executed at that time, and tbe testimony of Mr. Negrete, the writing of partnership was the only document of title to tbe mine relied on, and an interest in tbe two leagues grant during tbe term of tbe lease is added as a kind of voluntary cession to tbe Aviadores.- In all tbe deeds wbicb passed between tbe parties for several- years, no allusion whatsoever to tbe Act of Possession occurs, but tbe writing of partnership and a mine of three pertenencias are alone spoken of
That tbe parties were ignorant of the precise number of per tenencias allowed by tbe law is not improbable, and that the) *276should'have treated the mineas consisting of the number of pertenencias assignable to a discoverer, can be reconciled with the facts as they are-claimed to have existed. But the omission of Castillero to exhibit the Act of Possession, which constituted his -only title-paper for the mine, and the only evidence of his denouncement and registry, and which alone showed that the persons, or any of them mentioned in the writing of partnership, had any rights whatever in the subject-matter of their contract, is a circumstance which I have found it impossible to account for.
Even on the hypothesis that he had neglected to bring with him, through accident or otherwise, a copy of the Act of Possession, it would still seem almost inevitable that he should have .given to Mr. Negrete some information of the existence of such a paper, and at least mentioned the Alcalde’s concession of three thousand varas. No explanation of this circumstance is offere 1 by the claimants. I have been much impressed with its significance. It might well seem to justify the inference, not that the mine was not discovered and worked as alleged, or that it w»s ngt in some manner denounced, or that the Alcalde did not giv e a- possession, as sworn to by the witnesses — for of these facts, there can, I thjnk, be no doubt — but that the record of the Act of Possession has been since fabricated and antedated.
But when we consider the vast number of perjuries and complicated-.forgeries which such a supposition involves, and the grave and almost insuperable objections which present themselves to any theory of forgery, no matter what date be assigned for its commission, and especially if we accept the date fixed by the counsel for the United States, (viz., subsequent to February 2, 1848,) it seems impossible, under the proofs, to adopt the hypothesis of the United States.
0.ur daily experience apprises us that events are constantly occurring which would, a priori, be pronounced in the highest degree improbable. That which is true does not always present the appearance of truth, and it is not usually safe to discredit positive testimony to a fact on an estimate of what would be likely to have happened.
*277But' in this case, if; reasoning on the extreme improbability that Castillero would have fáiled to produce to Mr. Negi-ete- the Act of. Possession, if it existed, we adopt the conclusion that'it did not then exist, we encounter improbabilities greater than those we are seeking to avoid.
For- admitting, as we must admit, that he discovered the mine; that its great value, estimated by Col. Fremont at $30,000, was known to him; that he denounced it in some form, as is stated by Mr. Larkin to Mr. Judd, and to his own Government' by himself, and by Castro to the Governor of California, as was notorious throughout the country — it is, as before observed, almost incredible that he should not have made the denouncement in writing, and substantially as is now claimed; ' If the papers were fabricated after February, 1848, how can we account for the copy certified to by "Weekes in January of that year, and which must then, have contained the interlineation in Castillero’s handwriting, who was absent in Mexico ?
How can we account for the useless forgery of the Castro petition, which the counsel for the United States allege to have been made by Diaz in 1847, and which speaks of the denouncement and act of possession, which had not yet been fabricated ? Why, if the parties were then preparing their spurious documents! did they, at the same time, ask for additional pertenen cias, when the documents they were forging could be made-7 to express all that they desired ?
How shall we explain the absence, throughout James’ Aléx‘¿ ander Forbes’ voluminous correspondence, of'any reproach; or even Tegret, that the forgery had been so clumsily effected as-to leave the Act of Possession “precarious and' illegal;” how account for the allusions to the documents of registry in-judicial proceedings, official letters of Forbes to the Alcalde, and the entire absence of any accusation or hint of forgery, wh'en Walkinshaw, who must have been in the secret, was struggling so fiercely with Forbes for the acquisition of the mine;?
These, and many other considerations which might be' offered, are-sufficient, without now alluding to the large number of‘witnesses who swear to the genuineness of the documents, to apprise *278us that the theory of forgery is beset with greater difficulties than the supposition that Castillero, for some unexplained reason, omitted to produce or allude to the Act of Possession, which, nevertheless, existed.
Assuming, then, the genuineness of the Act of Possession. I proceed to inquire what this document and the proofs show to have actually been done — and what was its legal effect.
In the first place, it appears that the written statement required by Art. 4, tit. VI., of the Ordinances, to be made by the discoverer, was in fact presented by Castillero. The vein was described as situated on the lands of Berreyesa, and the discoverer declared that he wished to work it in company. The names of his partners were not stated as enjoined by the ordinances.
It does not appear that the corresponding entry, .in a book kept by the Alcalde, was made, nor was the “ statement returned to the discoverer for his ”• due security.
Whether notices were affixed, as required by the ordinances is perhaps not clearly established, although some witnesses testify to the fact.
It further appears, that within the ninety days limited by law a pit had been dug, the mine opened and working commenced, and that at the expiration of thirty-eight days from the date of the denouncement, judicial possession of the mine was given.
.•It is not pretended that any number of pertenencias were measured to Castillero when possession was given, nor that he was called to fix stakes in his boundaries, as directed by the ordinance.
It has already been shown that, by the spirit and terms of the ordinances, discovery was recognized as the true foundation of title to a mine. That the registration was but a formal an nouncement of the fact of discovery, and only required, in the language of Gamboa, three things to be manifested — “the person, the place, and the ore.” That upon this declaration, the law itself annexed the title, and the mine was said not to be granted, but to be adjudicated, by. the judicial tribunal which had jurisdiction in such matters. That from the moment of denounce*279ment the discoverer had the legal right to commence working his mine, and was required within ninety days to dig a pit of certain dimensions under penalty of forfeiture of his right, but that as soon as this was done he was entitled to receive judicial possession of his mine; and this, notwithstanding that the period allowed for others to show a better' right, had not elapsed.
It was also shown that under the old ordinances no measurement of pertenencias was required to be made when possession was given; though this was required by the Ordinances of 1783, the penalty of forfeiture was not by those ordinances annexed to the omission to do so, though such a provision had been recommended by Gamboa. It was also shown that the requirement of the ordinances with regard to noting the contents of a statement in a book, &c., was directory to the Alcalde, and that his neglect of duty in that respect ought not to impair the vested right of the discoverer any more than the omission to record a colonization grant should effect the title of a bona fide grantee of land. The duty of recording registries in a book to be kept for the purpose was also imposed by ordinances prior to the time of Gamboa; but that author, though he strongly urges its policy and convenience, nowhere intimates that a failure by the mining tribunals to comply with this requirement'of the law affected the title of the mine-owner — whose rights were evidenced by the copy of the “diligencias” or proceedings which was delivered to him — which corresponded to the “attested copy of the proceedings” which, by the Ordinances of 1783, was required “ to be delivered to the party as his corresponding title.”
If these views be correct, it follows that all the provisions of the ordinances indispensably necessary to vest the title in the discoverer of a mine have in this instance been followed. And Castillero, by his denouncement, the digging of a pit within ninety days, and the judicial possessio i given, acquired by law a right to his mine, with a number of pertenencias allowed to a discoverer working in company.
But it appears, from the loose and informal document executed by the Alcalde, that in addition to the juridical possession *280which he was empowered to give, that officer “concluded' to-, grant-to Castillero three thousand varas in all directions; subject,.to that which-the General Mining Ordinance indicates.”
It will be observed, that the Alcalde does not here pretend to adjudicate the mine to the discoverer, nor to put him in possession of any designated number of pertenencias, but Ho- grant-him a large tract of land about his. mine. It is unnecessary to say that such a concession, even of public land by an- Alcaldewas wholly void, and as against either the Sovereign or a-,private owner, conveyed no rights whatever.
It is insisted by the counsel of. the United States, that this distinction between the. possession of the mine and the graeia-f or-gift, of three thousand varas, is due entirely to the ingenuity of-' counsel for claimants, and is not found in the words or-sense-of' the instrument.
We have already seen that the same distinction is clearly taken in James Alexander Forbes’ letter of May 5th, 1847. We will hereafter see that it is alluded to in Castillero’s communication to the Junta, in which he states “that he has taken-possession not only of said mine, but also of an extent of three thousand varas in all directions from that point."
The distinction is not, therefore, a recent suggestion of- ingenious counsel.
That it is very clearly expressed in the very inartificial document called the Act of Possession, is not pretended'.
Taken liter-ally, -that document merely states that, “I; the Alcalde, have resolved to act, by virtue.of my office; in-order-to give juridical possession of a mine known by the name-of Santaclara, and (after sundry recitals) have concluded to grant him three thousand varas in all directions, subject- to what- the Mining Ordinance indicates.”
Nor is it pretended that any possession of the mine as-distinguished from the three thousand varas, was given. That the Alcalde, the assisting witnesses and others, went to the-mine-for the purpose of giving a possession of some kind, is clear-: but he- made no measurements, and fixed no stakes.¡ He-probably- told Castillero that he gave him possession of'tlie mine- *281and added that- he- might take three thousand varas in every direction around it.
The explanations of' this act given by Pico himself, are com fused and contradictory.
In his first deposition, taken on behalf of the claimants, Pico says: " Castillero told me he required three thousand varas in all directions, and I told him to take them. He told me he had that right- by reason of his being the first discoverer of the metal. According to what Castillero told me, I believed that I, as Alcalde, bad authority to do that, there being no other Juez de Letras. Hé was a man learned in all those subjects.” He adds: " I do not know whether it [the land of which he gave possession] was round or square, because I ‘made the division in different directions, as I proposed to Castillero; that is to say, that he should take it where it was vacant, or in the mountains, because the rancheros would not have mountains — they wanted plains only.”
In a subsequent deposition, taken some three years afterwards • — -viz., in 1860 — -Pico admits that he had stated in a deposition taken in another case, that he pointed out the boundaries which Castillero was to' take, but gave him no fixed possession; that there was a question between Castillero and Berreyesa — Berreyesa would not consent that possession should, be given to Castillero unless he would admit that he (Barreyesa) should have an interest in the mine. In consequence of this, I did not give any fixed possession of the land.
In a subsequent part of the deposition of 1860, (Ans. 17,) Pico says: “ I intended to grant only what was intended by the ordinance around the mine, and the rest to be taken on public land.” “I never intended to grant another man’s land.” (Ans. 16.) When reminded by the counsel for the United States that the mine was at some distance from the nearest body of public land, recognized as such at that time by himself, and asked how he could have granted three thousand varas, to be measured in all directions from the mouth of the mine, if he intended only to grant public land, the witness replies: “ It was because Berreyesa agreed with Castillero at the time, and told me I might *282grant the land, provided I did not' include the land needed for cultivation; and, therefore, I made the grant.” And in Answer 24, he admits that three thousand varas in all directions would include part of Berreyesa’s land as well as public land.
Amidst these confused and contradictory statements it is, 1 think, not difficult to perceive what was really done, or attempted to.be done, by the Alcalde. He was aware, and so informed Berreyesa, as he states, that “the ordinances authorized a certain quantity of land around the mine to be granted, whether on public or private land — that is, that to the discoverer and to the one working in company, a certain number of pertenencias were to be assigned; How many, neither he nor' probably Castillero knew. But in addition to these pertenencias, which determined the extent of the mine, he also undertook to grant a tract of three thousand varas to be taken on public, or on Berreyesa’s land, if the latter consented. The transaction with regard to this grant seems to justify the observation of James Alexander Forbes, in his letter of October 30th, 1849, that the possession-of the mine granted by the Alcalde to Castillero “was precarious and illegal; the latter being in reality the judge of the quantity of land given by the Alcalde.”
The concession of the three thousand varas is by its terms provisional, for it is declared to be “ subject to what the general Mining Ordinance indicatesnor does it purport to be a concession of the tract described, as of so many pertenencias of the mine, but rather a grant of land as a gracia or gift.
The difference is important, for in the one case Castillero (if the grant were valid) would, under the Mexican laws, have been the owner, not only of the large tract conceded to him, but of all the mines which might be discovered within it; in the other, he would merely have owned the mineral veins within the per tenencias allowed by law, while all others within the three thou sand vara tract would have remained liable to denouncement by any one who might discover and be ready to work them.
Castillero himself seems to have understood that he was enti tied to four pertenencias, for in the petition of Castro, which was drafted by himsi If, there is asked' “ three pertenencias in cor *283tinuation of the- first.” It is not, however, very clear that three additional- pertenencias are here asked for, or perhaps Castro may have misunderstood Castillero’s instructions, for it appears that in his ratification of McNamara’s contract, made at Mexico, December 17,1846, Castillero describes the mine as of three pertenencias only. That such was understood to be the dimensions of the mine by all parties, in 1846 and 1847, appears not only from their acts of sale, but from the testimony of James Alexander Forbes.
This witness states, that “ in 1846 he received from Padre Real possession of the mine, the hacienda, about a mile distant from it, the mining utensils and some ores. No definite extent of land was specified. It was understood that the mine contained three pertenencias at that time, but the hacienda was not understood to be within the three pertenencias.” The possession transferred by him to Walkinshaw in 1847, and again on his return from Tepic received back from Walkinshaw, is stated to have been like the original possession received from Padre Real. It comprised the hacienda and the mine, but no definite tract of land.
In a subsequent part of his examination he says: “ There was • only one act of possession which I understood to have been given. This embraced three pertenencias, so far as regarded the mine. Three pertenencias, and also lands about the hacienda, I understood to: have been given to Castillero in 1845.”
“ These lands were understood to be of the extent of three thousand varas,” he adds; and in the deed received by him from the Robles, and which conveys “ all their rights and shares in each one of the three pertenencias of the mine,” their interest in the lands and hacienda passed; for, “ by Mexican custom, a sale of barras in a mine includes an interest in the hacienda.”
In the possession obtained by Alexander Forbes from Weekes, Alcalde, in January, 1848, four pertenencias seem to have been considered the number to which the parties were entitled, and a tract two hundred varas long and eight hundred wide, compris ug exactly four pertenencias, is designated by the Alcalde.
It is, I think, apparent, that from 1846 down to a late period *284the-parties interested considered' themselves the .owners of " a mine, with the number of pertenencias allowed by law — whether three or four, they seem to have been uncertain — and that this ownership, acquired by registration and denouncement, carried with it the ownership of the hacienda or reducing establishment But they seem to have attached, so far as we can-discover from their acts of sale, proceedings at law, &c., little importance to the rights in the large tract six thousand varas-square, which the Alcalde assumed to grant them partly on public and partly on private land. On no other hypothesis can- we account for the omission to mention the word “lands” in any-of their conveyances during so long a period.
No inference of fraud can, however, be justly drawn from this circumstance, for the same omission is observable in deeds and proceedings after the date of the supposed forgery as before it.
But whatever may have been the notions of the parties as to their rights, it is, I think, plain that the possession given to Castillero should legally be treated as having included two entirely distinct objects: one, the mine properly so called, comprising the pit or “ pozo de posecion,” with the limited number Of pertenencias allowed by the ordinances; and the other, a tract of land six thousand varas square, which the Alcalde assumed to grant, but of which no “fixed possession was given.”
This distinction between the judicial possession of the mine, which the tribunal having jurisdiction of mining matters had a right to give, and a grant of more than a squaTe.league of land, partly on private and partly on public, is not only admitted but insisted on by the counsel for the claimant. Its importance will appear hereafter when we come to consider the alleged “ ratification” of the mining possession by the Supreme Government.'
By art. 14, tit. VI., of the Ordinances of 1783, it is provided, that “Any one may discover and denounce a vein - or mine, not only in- common land, but also in the private lands of any individual ; provided he pays for the land of which he occupies the «uríace, and the damage which immediately ensues therefrom, according to the valuation of experts appoinited by both parties, and a third in case of disagreement. The -same being understood *285with respect to him who denounces a place (sitio) or waters for establishing works, and working the machines necessary for the reduction of ores, which are called haciendas; provided they do not include more land, nor use more water than may bo necessary.”
It is not pretended that in this case any denouncement of a sitio or of waters for a hacienda, was made. Had such been the case, and the title to a hacienda duly acquired by the mine-owners, it may well be that, as affirmed by Mr. Forbes, a sale of a barra, or share, in the mine would have conveyed, by Mexican usages, a corresponding interest in the hacienda. But’the par ties appear to have selected and taken possession of this hacienda relying on the grant of six thousand varas square, made by the Alcalde, or oh some arrangement made with Berreyesa, the reputed owner of the land.
Antonio Maria Pico, in his last deposition, seems to desire it to be understood that Berreyesa gave an oral assent to the grant provided it did not include the level land; and in a previous deposition before the Land Commissioners, the same witness testified that a written contract was entered into between Berreyesa and the owners of the mine, by which the former was to have a share in the mine, and was to be paid for the wood and limestone, used in the establishment. After the possession was given, Berreyesa demanded a compliance with the contract, and wrote to Padre Real to that effect. It does not appear that any arrangement was entered into with him. He was soon after killed by the Americans, and the hacienda and tract of three thousand varas in every direction has remained in the possession of the New Almadén Company to this day.
I am unable to perceive how, under these circumstances, and in the absence of any denouncement of the sitio used for a hacienda, Castillero can be deemed to have acquired, by the attempted concession of the Alcaide, any title whatever to lands beyond the limits of the pertenencias which the law allowed.
With-respect-to these, the Ordinance does not expressly declare whether the denouncer of a vein or mine on private land is required to .pay for the land of which he occupies the surface as *286a condition precedent to the vesting of his title. It would seem that he is not.
The denouncement or formal declaration of discovery is evidently the first step to be taken; the pit is then to be dug and the discoverer is, by the terms of Art. iv., to be put át once into possession. No provision is here made for a suspension of proceedings until the land can be valued and paid for, nor until the expiration of ninety days can the denouncee be sure that some one having a better right will not present himself; as the private land owner is only to be paid for the surface land which is occupied, and the ensuing damage, it would seem impossible to ascertain what amount of surface land is to be occupied until the number of pertenencias is fixed and their boundaries marked out, which can only be done when judicial possession is given.
The ordinance seems to contemplate a claim or proceeding instituted by the land owner; for it provides that the land shall be appraised by experts appointed by both parties. If, therefore, the payment for the land, and satisfaction for damages, are conditions precedent to the vesting of any title to the mine, the land owner might, by refusing to appoint an expert, indefinitely postpone its acquisition — thus defeating the policy of the Mining Laws, as well as the right of the discoverer, which those laws so fully recognized, and so amply protected. Eor it is not to be forgotten, that under the Spanish as well as all other Mining Ordinances, the discoverer was considered the true owner and creator of the wealth he had discovered, and that the grantee of the superficies had merely the right to an idemnity for actual damage done by the occupation of a small portion of the surface. But to hold, under the circumstances of this case, that no title vested by denouncement' and discovery, because the claim of Berreyesa was not first satisfied, would be peculiarly inequitable.
The mine, it' is true, was generally understood to be on his land, and denounced as such. But no judicial measurement of his land had been made, nor were his boundaries established. It is to this day unsettled, whether in fact the mine is within the boundaries of Berreyesa, or those of his neighbor, Justo Lari os. *287or without both, on public land. Had Berreyesa been paid, as required by the ordinances, it may yet prove that the payment was unnecessary, because the mine was on public land; or to the wrong person, because it is on the land of Justo Larios. Where land was gratuitously distributed in tracts from one to eleven square leagues in extent, the indemnity which experts would have awarded for the occupation of a few rectangles of the surface, two hundred varas long by two hundred wide, would have been little more than a nominal sum; and to defeat the meritorious title of a discoverer, because under such circumstances the’ indemnity was not paid, would seem unjust and absurd.
The next question to be considered on this branch of the case is, whether the Alcalde had, under Mexican laws, jurisdiction to receive denouncements, make registrations, and adjudicate the titles of mines.
By art. iv., tit. vi., of the Ordinances of 1783, the discoverer . was required to present himself before the Deputation of that Territory (territorio), or the one nearest if* there should be none there.
It is unnecessary particularly to examine the nature and organization of the Special Tribunals to which the ordinance refers. It is sufficient to say that they were composed of deputies chosen by the enrolled miners of each mining territory, who themselves were members of the great mining corporation or body of matriculated miners throughout the Kingdom of New Spain.
These Special Tribunals were in the Federal territory abolished by the Constution of 1826 and by the law of 1837.
But by the law of December 2d, 1842, Courts.of First Instance, composed of three Territorial Deputies elected in the mannt r prescribed in the ordinance, were required to be established in each of the Departments by the Governor, in concert with the Departmental Junta, and with the previous approval of the Supreme Government.
To these Courts were given substantially the powers formerly possessed by the Territorial Deputations under the ordinances.
Under this law mining tribunals were established in various Departments, but n me were ever organized in the Californias.
*288It is contended, that inasmuch as these tribunals existed in some parts of Mexico, it was the duty of the discoverer to address himself to the one nearest to his mine; and that that tribunal alone had jurisdiction in the premises.
It is not disputed, as a general principle of Mexican law, that in default of any of the authorized special tribunals, their functions devolve upon the Courts of general jurisdiction. The question then is, was there any special tribunal to which the discoverer of a mine in the Department of the Californias,- 'could address himself.
It seems to be considered by the. counsel for the United States, that'the provision of the ordinance which directs the discoverer to the deputation of the nearest territorio, in default of any deputation within his own territorio, of necessity directs him to the nearest Departmental Court organized under the law of 1842, if there be none in his own Department. But this provision of the ordinance is not adopted or alluded to in the law of 1842, The small territorios, in each of which a Mining Deputation was ■by the Ordinances of 1783 to be established, in no respect corresponded to the great divisions of the Mexican Bepublic called “Departments,” in a single one of which both the Californias were included. The Deputies under the ordinances were to be elected in each Beal or Asiento of mines by the matriculated miners “ of that place” {lugar), whose names were embraced in a book kept by the Judge and Notary of that mining place (Minería).
I am not informed what were the ordinary territorial limits of the Beales or Asientos of mines here spoken of; but it is obvious that they could not have been larger than would be consistent with the convenience of the miners who were required to enroll their names, and every year to vote at elections. When, therefore, it happened that in a newly discovered mining district, no deputation had been elected, the discoverer was reasonably directed to the nearest deputation, which would ordinarily be at no great distance.
But to send him to a remote Department of Mexico on such an errand would be absurd, and a practical denial to him of any *289right whatever to register his mine. Nor could in such case the othej provisions of the ordinances be complied with; for to what purpose affix notices on the doors of the churches in Chihuahua, that an individual had discovered or denounced a mine in Upper California, and how could one of the Deputies personally go, and within ninety days inspect the mine, examine the pit, and give the possession'as enjoined by the- ordinances?
That no such proceedings could have been contemplated by the law of 1842, is also clear from the terms of the law itself. The Grovernor and Junta of each'Department were to establish, as we have seen, as many Courts of First Instance as were required within their limits.
It is to be presumed that the jurisdiction of gach of thesé Courts was restricted to the territorial limits assigned to it; but i. certainly did not extend beyond the boundaries of the Department.- Art. XXVI., provides,-that “Each one of these Courts shall exercise within its territory the -executive and economical powers given by the old ordinance,” &c, How, then, can it be supposed that, organized under the authority of the Department, and with its jurisdiction restricted to'its territory, it could take cognizance of mining matters in another Department,’ separated from it by hundreds of leagues, and with which communications were rare and difficult'.
It is, I think, beyond doubt, that at the time of the discovery A this mine, there were not only no special tribunals in Cali.brnia which had jurisdiction in mining matters, but there were none anywhere established in Mexico which possessed jurisdiction to make a registration of a mine discovered in California^' On' the principle of Mexican law already referred, the functions of the special tribunals, under these circumstances,,devolved on che Courts of ordinary jurisdiction — or rather the jurisdiction remained in .them, as it had done in'the Federal Territory from the adoption of the Constitution of 1824 and the law of 1837; it never havihg been divested in this Department by the establishment of special tribunals under the law of 1842.
. If) then, the ordinary Courts had cognizance of mining matters *290in the Californias, the jurisdiction must have been vested in the Alcaldes, for no ordinary Courts of First Instance existed.
By the decree of May 23, 1839, the judiciary of each of the Departments was to be composed of Justices of the Peace, Alcaldes, Judges of First Instance, and a Superior Tribunal.
But this organization was not perfected in the- Californias, and the Alcaldes in this Department appear to have exercised the functions and jurisdiction which would otherwise have belonged to the Courts of First Instance.
In the decree of March 2, 1843, it is stated, that in the Californias there had been no Courts of Second’and Third Instance established in the Californias, New Mexico, and .Tabasco ; and by Act 28th, the Governors of those Departments are ordered “ to take care that justice is punctually and completely administered in First Instances by Judges of that grade, if there be such, or by Alcaldes, or Judges of the Peace.” But even if the authority of an Alcalde to take cognizance of mining matters were doubtful, it ought, I think, to be sustained as that of a de facto officer exercising an undisputed jurisdiction. .
The registration of a mine was a simple proceeding, of which the principal objects were to apprise the Government of its existence, so that'it might secure its portion of the produce — to give an opportunity to other persons to show a better right than that of the alleged discoverer or denouncer, and to subject the latter to the salutary rules of the ordinance as to its working. and preservation. When the discoverer had made known his discovery in the manner prescribed by law, and dug his pit of possession, the law itself gave him the title.
It would seem, therefore, that if the discoverer addressed himself-to the only judicial authority of the country, and if that authority, with the knowledge and acquiescence of the Governor and inhabitants of the Department, took cognizance of the matter and adjudicated the mine to him, a presumption in favor of the rightful exercise of power ought to be indulged. Nor should we affirm the Alcalde’s acts to be void, except on the clearest proofs that he was wholly without jurisdiction in the premises.
Having thus seen that by this discovery and.registration of his *291mine, and by the possession given by the Alcalde, Castillero acquired a right to the mine, with the number of pertenencias allowed by law, I proceed to inquire what number of pertenencias he thus became entitled to.
By art. 1, tit. vi., of the ordinances, it is provided that “ the discoverers óf one or more mineral hills, {cerros,) absolutely new, in which there is no mine nor trial pit open, may' acquire in the principal vein which they select, as many as three pertenencias, continuous-or interrupted, according to the measurements which are hereinafter prescribed; and if they have discovered more veins, they may have one pertenencia in each vein, said pertenencias being discovered and marked out within the term of ten days.”
Art. 2, tit. xi., provides: “ Although by these ordinances 1 prohibit any individual miner who works in the ordinary limits from denouncing two contiguous veins on the same vein — not withstanding this, I grant to those who work" in company, although they be not discoverers, and without prejudice to the right which by reason thereof they may have in. case they are such, (y sin perjuicio del derecho' que por este titulo deban tener en caso de que lo sean,) the right to denounce four new pertenencias or mines which have been worked and abandoned, even when they are contiguous and on the same course.”.
It is claimed that, under these provisions. Castillero was entitled as a discoverer to three pertenencias, and as one working in company, to four additional pertenencias, making seven in all.
The counsel for the United States contends that the allowances of pertenencias mentioned in the foregoing articles, are not cumu.ative; and that four,-or the number given to him who works' in company, are all that can be acquired.
The determination of this question entirely depends upon the true meaning of the Spanish text. The counsel for the United States insists that the Spanish phrase quoted above reads when properly translated: “And without prejudice to the right which by this' title [viz., that of discoverers] they may be entitled ta have in case that they may be such,”
*292That is, that although it was prohibited to au individual miner to denounce two contiguous mines, yet those who work in company may denounce four pertenencias, either new and unopened, or old and abandoned mines; ■ and this right is not to prejudice their rights as discoverers, in case at any time thereafter they may become such.
If, however, we attribute a present and not a future signification to the verb, the meaning of the phrase would be, that all persons working in company shall have four pertenencias, and shall enjoy this right without prejudice to their rights as' discoverers, in case they are such; that is, all persons working in company shall have four pertenencias, and if they be also discoverers, their rights as such shall remain to them.
I do not pretend to be able to determine, from a knowledge of the Spanish, which is the true translation of the phrase. A have therefore addressed myself for information to several persons skilled in' that language. They all concur in adopting the translation suggested by the claimants.
There are some general considerations which serve to strengthen my belief in its correctness.
The object of the law was to determine the extent of mining spaces, or pertenencias, to be allowed to miners. As the merit of the discoverer, was greater than that of one who merely denounced a forfeited mine, and as the policy of the law was to encourage and reward discoveries, it gave to the discoverer, though working alone, three pertenencias, if his discovery were of an absolutely new hill, in which no mine had been opened; but if the discovery were of a new vein in a hill known and worked in other parts, he was allowed 'to acquire two pertenencias. It was also the policy of the law to promote the development of mines by encouraging the formation of companies, the associated capital of which would enable them to prosecute the works on a larger scale and with greater efficiency. Title ix.', in , the 1st article, enjoins upon the Viceroy to encourage, promote, and protect all such partnerships by all' conyenient measures.
In furtherance of the same policy, article 2d gives to all those *293who work in company the right to acquire either four hew and unopened pertenencias, or four mines (of one pertenencia each) which have been worked and abandoned. The law which prohibited the acquisition of two contiguous pertenencias by an ordinary miner, is pro tanto repealed, while those which determined the rights of discoverers a,re allowed to remain.
Such would seem the natural mode of carrying out the evident policy of the law-giver.
Eor why should the -ordinary miner be rewarded with three ' additional pertenencias, because he works in company, and the discoverer only be allowed one additional pertenencia?
' The law recognizes the two species of merit — that of discovery, and that of working in 'company. If a miner possesses both, ought he not to receive the rewards allowed for both ?
The phrase, “and without prejudice to their rights as disc»verers,” &c., is evidently intended to guard against interpretation.of the provision prejudicial to the rights of the discoverers. It is the exclusion of a possible conclusion which might otherwise have been drawn.
But could it have been supposed that because persons working in company are to have four pertenencias, no one of them could Lave the rights of a discoverer, if at any future time, and perhaps at a distance from his mine, he discovered an entirely new hill ? Such a construction of the provisions in favor of partnerships would have been wholly unwarranted. This could not, therefore, have been the conclusion intended to be excluded. But it might have been supposed that the law, in giving to partnerships four pertenencias, meant to fix the maximum number of contiguous mines which the same individuals could in any case acquire. Tf, as discoverers, they were already entitled to three the formation of the partnership would give them but one more. Both provisions would thus have been satisfied. Three o/f the pertenencias would be held by a double title — that of discovery, and that of working in partnership — while the fourth would be given for the latter reason alone.
■ To guard against this construction, the provision was inerted that the allowance to partners should be without prejudice to *294their rights as discoverers, in case they were such; and in this view the provision was sensible, and perhaps necessary. It left to each kind of'merit its appropriate reward, and gave to the miner . :vbo united both in himself, all the privileges which the-.aw attached to each.
I am, therefore, of opinion, that under the Mining Ordinances referred, Castillero, as a discoverer, and as one working in company, was entitled to seven pertenencias.
Having thus ascertained what acts were done and rights acquired by Castillero in California, we will next consider the title claimed to have been obtained by him from the Supreme Government of Mexico.
The facts as alleged by the claimants, are as follows:
Early in 1846, and while he was yet in California, Castillero, impressed with the importance of the brilliant discovery he had made, communicated the fact in two letters addressed to J. «T. De Herrera, former President of Mexico, dated at the Mission of Santa Clara on the 19th and 22d February, 1846, respectively, and also in another letter written on the last mentioned day to Don Tomas Ramon del Moral, at Mexico.
These letters, together with some specimens of cinnabar, and a small flask • of quicksilver, were sent by the hands of Lazaro Pifia, who sailed from Monterey for Mazatlan in the brig Hán'nah, in the early part of March, 1846.,
Extracts from the" two ‘letters to Herrera were, it appears, furnished by him to Sefior Moral, and a note embodying these extracts, .together with á copy of Castillero’s, letter to himself, were, by Señor Moral, about the middle of April, 1846, communicated to the Junta de Fomento y Administrativa de Minería, a bod) chargeo with the development and -encouragement of mining interests in Mexico, and the administration' of certain funds connected with,the same object.
There were also transmitted by Moral to the Junta, at the same time, some specimens of cinnabar which had been delivered to him by Pifia.
Oh the 21st April, 1846, the Junta addressed a letter to José Maria Tornel, Director of the Cbllege of Mining, transmitting to *295him copies of Castillero’s letters and the specimens of cinnabar, and requesting that an assay might be made of the latter.
On the 23d April, Tornel, by an order on the margin of the letter of the Junta, directed the specimens to be sent to the J anta Facultativa, or Faculty of the College, for assay.
The result of the assay was communicated to Tornel by Señor Moral, President of the Junta Facultativa, on the 24th April, 1846, and the receipt of this letter was acknowledged on the 29th of the same month by Tornel, who, on the same day transmitted the letter of Moral of the 24th, announcing the result of the assay, to the Junta de Fomento. His official communication on the subject was received by them on the 3d May, and on the 4th, ordered by an “acuerdo” or marginal order to be sent to the Government. On the succeeding day, viz., the 5th, a communication signed by Vicente Segura, President of the Junta, and Isidro E. Gondra, First Clerk, was accordingly addressed to the Minister of Justice, in which was stated the' reception of the specimens, and their transmission to the Director of the College for assay. A copy of the communication of the Director of the College, stating the result of the assay, was also embodied in the Junta’s letter, and the Minister of Justice was informed that the Junta had already asked Castillero what kind of aid or protec tion he needed for the encouragement of his brilliant enterprise, &c., &c.
This letter was received by the Minister of Justice on the 9th May, as shown by the marginal note of its contents and reception, and on the same day the Minister formally acknowledged its receipt in a dispatch addressed to the Junta.
On the 12th May, 1846, Castillero, who had sailed from California in the barque Don Quixote, and arrived in Mexico, submitted to the Junta nine propositions in writing, in which he indicated the kind of aid and protection he required. He had previously,. however, appeared' before them, given a verbal account of his discovery, and been requested by the Junta to furnish a written statement as to what aid he required.
On- the 14th May, 1846, the Junta transmitted the written statement of Castillero to the Minister of Justice, retaining a *296copy in their own office. In this communication of the Junta, the Government is urged to accept the propositions of Castillero.
Among the propositions thus made by Castillero to the Junta, and by the latter transmitted to the Minister of Justice, were the following:
“ 7th. The Junta shall represent to the Supreme Government the necessity of approving the possession which has been given me of the mine, by the local authorities, in the same terms as those which I now hold it.”
“8th. It shall also represent the advantage of there being granted to me, as a colonist, two square leagues upon the land of my mining possession, with the object of being able to use the wood for my burnings.”
The communication of the Junta, inclosing the propositions .of Castillero, and urging'their acceptance, was received by the Minister of Justice, and on the 20th May, the following “acuerdo” was noted on the margin :
“ Granted in the terms which are proposed, and with respect to the land, let the corresponding order issue to the Minister of Kelations for the proper measures of his office, with the understanding that the Supreme Government accedes to the petition.”
This “ acuerdo ” is signed with the rubric of Becerra, Minister of Justice.
On the same day (May 20th) Becerra addressed to the Presi dent of the Junta an official dispatch, as follows:
“Ministry of Justice and Public Instruction.
“ Most Excellent Sir : — Having reported to His Excellency, the President ad interim of the Eepublic, your Excellency’s communication of the 14th inst., with which you were pleased to transmit with a recommendation the .petition of Señor Don Andres Castillero, for the encouragement of a quicksilver mine which he has discovéred in the Mission of Santa Clara, in Upper California, His Excellency has been pleased to approve in ail its parts the agreement made with that individual in order to commence the working of said mine, and on this day the corresponding communication is made to the Minister of Exterior Eelations and Government, to issue the proper orders with respect to that *297which is contained in the 8th proposition for the grant of lands in that Department.
“ I repeat to yonr Excellency the assurance of my esteem.
' God and Liberty. Mexico, 20th May, 1846.
“Becerra.
" To His Excellency, D. Yicente Segura,
President of the Junta de Fomento de Minería.”
On the same day Becerra addressed to the Minister of Relations an official communication, in which he transcribes the foregoing dispatch to Segura, and adds:
“And I have the honor to transcribe to your Excellency, to the end that with respect to the petition of Señor Castillero to which his Excellency the President ad interim has thought proper to accede, that there be granted to him as a colonist two square leagues upon the land of his mining possession, your Excellency will be pleased to issue the orders corresponding.”
In obedience to these orders, the Minister of Exterior Relations, Castillo Lanzas, on the 23d of May, 1846, directed an official dispatch to Pio Pico, Governor of California, in which, after transcribing the foregoing communication of Becerra, he says:
“ Wherefore I transcribe it to your Excellency, in order that in conformity with what is prescribed by the laws and dispositions upon colonization, you- may put Señor Castillero in possession of the two square leagues which are mentioned.
“ God and Liberty, Mexico, May 23d, 1846.
“ Castillo Lanzas.
“ To His Excellency the Governor of the Department of the Californias.”
Upon these last dispatches, viz., that from Becerra to the Junta de Fomento, of May 20th, and that from Castillo Lanzas to the Governor of California, of May 23d, the claimants rely, as constituting a ratification of the grant by the Alcalde of three thousand varas in every direction, and a concession of two square leagues of land. They also claim that the “acuerdo” or margi na order found in the communication of the Junta of May 14th. *2981846, amounts, in equity at least, to a concession of all that the Junta recommended.
The proofs of the foregoing allegations consist of a large number of espedientes from various public offices in Mexico— of certified copies of the actas or minutes of the proceedings of the two Juntas, viz., the Junta de Fomento and the Junta Facultativa, of the College of Mining — of certified transcripts of entries in official books of the Ministers, and of-the parol testimony of Members of the Juntas, Clerks in the offices by whom the documents were written, and of the Minister himself, Castillo Lanzas, who was the author 6f the dispatch of May 23d. These witnesses swear, not only to the existence of the archived, the handwriting and the genuineness of the various documents, traced copies of which are produced, and to the accuracy of those copies, but also to the facts stated to have occurred, or to such parts of the transactions as each was personally concerned in.
Some of' these witnesses, who were brought from Mexico by the claimants at great expense, have held distinguished official positions, are of advanced years, and independent fortunes.
The United States aver that their testimony is false and perjured, and that the documents sworn to by them are forged and ante-dated. .To arrive at a just estimate of the force of the evidence and reasons on which the United States rely to support this accusation, a brief statement of the nature and amount of the proofs offered by the claimant is necessary.
In the short summary of the evidence which I propose to give, I shall follow rather the chronological sequence of the events alleged to have occurred, than the order in which the various documents were produced.
It will be remembered that the Junta de Fomento was first notified of the discovery of a mine of quicksilver by Castillero, by receiving from Don Tomas Ramon del Moral a communication, containing copies of letters from Castillero, that this communication was sent to the-Mrector of the College that an assay might be made, and by him referred to the -President of the Faculty, who in due time reported the,result of the assay to the *299President, who in turn communicated it to tbe Junta, and the latter to tbe Minister of Justice.
There is accordingly produced from the Archives of the College of Mining the original communication of the Junta de Fomento, signed by the President, Vicente Segura, and addressed to the Director of the College, together with copies of the communication of Moral, which, with the specimens of cinnabar, were sent to the Director. The accuracy of the traced copy produced, and the existence of the original in the College of Mining, is testified to by José Maria de Bassoco, for many years a member of the Junta, and by Balcarcel and Castillo, Professors in the College. These witnesses also swear to the handwriting of the dispatch, and of the copies of the letters, t& the genuineness of the signatures of Vicente Segura, President of the Junta, and of Gondra, the Chief Clerk of the Junta, who certifies to the copies which accompany the dispatch. On the margin of-the dispatch is an acuerdo, or order signed “Tornel,” directing it to be sent to the Junta Facultativa. The fact .that Tornel was Director of the College, and the genuineness of his signature, are also proved by the same witnesses.
From the archives of the Junta Facultativa of the College, are produced traced copies of the minutes of a session of the Board on the 24th April, 1846, (erroneously dated 24th March). These minutes show a resolution of the Board, that a report of what had been done, and the result of the assay made by Professor Herrera, be communicated to the Director of the College. From the same archives is produced a traced copy of 'the reply of the Director General Tornel to the report of the Board, in which he acknowledges the receipt of a letter from Moral. President of the Faculty, of the 24th April, communicating the result of the assay. The accuracy of these traced copies, and the existence, genuineness and handwriting of the originals, are pi oved by the Professors Castillo and Balcarcel, who were present at the meeting of the Faculty, and who not only swear to their personal recollection of the facts, but also testify that the cinnabar was received, an assay made, a meeting of the Faculty on the subject held, and the specimens deposited with appro*300priate labels in tbe Cabinet of tbe College, where they now remain.-
From the archives of the Junta de Mineria are produced traced copies of the office copy of the communication sent to the Director of the College, the original of which is found, as we have seen, in the archives of the latter; also a traced copy of the communication received from the Director of the College, announcing the result of the assay — with a marginal note directing it to be transmitted to the Government, signed by Segura, President of the Junta de Fomento.
There is also produced from the same archives, a traced copy of the borrador or office copy of the communication thereupon addressed by the Junta to the Minister of Justice together with a traced copy of his reply, dated May 9th, 1846.
There is also produced from the same archives a traced copy of the borrador or draft of a second communication from the Junta to the same Minister, transmitting to him the petition of Castillero, for aid, &c., and recommending it to the favorable consideration of the Government.
A traced copy of the reply to this communication by the Minister of Justice, is also produced from the same archives.
• Appended to the espediente containing it, are certificates of Manuel Couto, Secretary of the Administration of the Mining Fund, and in charge of the archives of the office of Mineria.
A certificate of Vicente Ségura, certifying to the official character and handwriting of Couto.
A certificate of P. Almazan, Chief Clerk of the Ministry of. Encouragement, Colonization, &c., certifying to the official character of Segura, Administrator of the Mining Fund, and to that of Couto, the Secretary, and that the archives of the office are in charge of the latter, and also to their signatures and seals.
A certificate of J. Miguel Arroyo, Chief Clerk of the Ministry of Exterior Relations, certifying to the official character of Alma zon, and to his signature and the seal of his office.
And, finally, a certificate of John Black, U. S. Consul, certifying to the official character and signature of Arroyo, and also that he is the person authorized by law to legalize Mexican doe*301aments to be used in foreign countries, and that the seal of the Department affixed to the documents is the same used in the legalization of all documents by that officer.
The accuracy of the trace,d copies, the existence and hand; writing of the originals, where those originals are borradors or .drafts, and the existence and handwriting of the signatures to the originals, where they are the original communications received by the Junta, are proved by Mr..Bassoco, by the Professors Balcarcel and Castillo, by Miranda and Yrisarri, who were employed in the Ministry of Justice, by Manuel Couto, who testifies .that he copied Castfilero’s petition from his rough draft, and by Castillo Lanzas, the -former Minister of Relations of Mexico.
Erom the archives of the Ministry of Relations, to which the archives of the Ministry of Justice have been transferred, are produced traced copies of the communication addressed by the Junta to the-Minister of Justice, informing him of Castillero’s discovery, and embodying the communication received by the Junta from the Directors of the College, informing the Junta of the results of the assay.
A traced copy of the draft of this communication, as we have seen, is produced from the archives of the office from which it emanated. A traced copy of the borrador or draft of the Minister’s reply to this communication, is also produced from the same archives, in all respects conforming to the original reply, a traced copy of which, as before stated, is produced from the archives of the office to which it was directed:
■ There is also produced, from the same archives, a traced copy of the communication of the Junta, inclosing and recommending Castillero’s petition, corresponding with the borridor produced from the archives of the Junta, and a traced copy of the borrador of the reply of the Minister, in like manner corresponding with the original produced from the archives of the Junta.
On the margin of the communication of the Junta is the usual membrete or memorandum of its contents, and an “ acuerdo” or order of the Minister in regard to it. The latter is signed with the rubric of the Minister, and the official dispatch transmitted *302to the •' conforms entirely to the acuerdo or resolution taken c\ the subject, and noted in the margin of the communi cation. There' is also produced from the same archives a certified copy of. the draft'of the communication addressed by the Minister of Justice to the Minister of Relations.
From the archives of the Ministry of Relations is produced a traced copy of this last communication of the Minister of Justice, the borrador of which'is found in the office of the latter; and a borrador of the communication or dispatch addressed, in pursu anee of the order of the Minister of Justice, by the Minister of Relations, Castillo Lanzas, to Pio Pico, Governor of California. And, finally, the claimants produce from their own custody, the original' of the last mentioned dispateli, signed by Castillo Lanzas, and addressed to the Governor of California.
It may here be observed, that from the archives of the Ministry of Relations is also produced a! traced copy of the communication of Pio Pico, of February 13,1846, addressed to the Minister of Relations, informing him of Castillero’s discovery, and transmitting Castillero’s letter of December 10th, 1845. There-is also produced from the same archives a traced copy of the borrador of the reply of the Minister, dated April 6th, 1846.
We have already seen that the borr.odor of Pico’s communication, and the original of the Minister’s reply, are found among the archives of California in this city. Their genuineness is undisputed.
To the traced copies from the archives of the Ministry of Justice are affixed the certificate of Arroyo and seal of his Department, as also the certificate of Black, the United States Consul, in the same terms as those already mentioned.
The accuracy of the copies, the existence of the originals in the archives of the offices to which they belong, their handwriting, and the ■ genuineness of the signatures they bear, are sworn to by the escribientes, or clerks, by whom they were copied, some of whom are still connected With the Ministries, by M. de Bassoco, and by the ex-Minister Castillo Lanzas himself.
There is also produced a traced copy of an extract from a book nowexisting among the records of the Ministry of Justice *303It contains various entries or notes, purporting to have been made from May 11th, 1846, to May 20th, 1846. Amongst those made on the 20th, is an entry of the membrete or memorandum of contents of the Junta’s letter to the Minister, of May 14th and of the acuerdo or resolution taken by the Minister on tké subject. On the top of the first page on which the communication of the Junta is written, are found these letters and figures “L. g' 15, S. f. 140 vat*”
José M. Yrisarri, the Fifth Oficial of the Ministry of Justice, being interrogated as to the meaning of this inscription, testifies that it means “ Libro General, vol. 15; reverse of page 140,” and that the entry already mentioned is found in the volume and page referred to. He further states that this inscription, or reference, was made by himself, as was also the entry on the book to which it refers.
The original dispatch of. Becerra to the Minister of Relations, is stated- by Miranda and Yrisarri, to be in the handwriting of lhe former. The “acuerdo” on the margin is said by Castillo lianzas to be in his ©wn handwriting and signed with his genuine rubric; and the draft of the dispatch addressed by him to Fio Pico, to be in the handwriting of Mr. Quintanar, an employé of the Ministry of Relations in 1846. The original dispatch addressed to Pio Pico is proved to be in the handwriting of A. J. de Velasco, by Castillo Lanzas, and by Velasco himself. The signature of Castillo Lanzas is proved by Lafrague, former Minister of Relations in Mexico, by Velasco, who wrote the dispatch, and by Castillo Lanzas himself.
It is also testified by Mr. Negrete, that this identical dispatch was handed to him in December, 1846, by Castillero; that a copy of it was inserted''in the instrument by which Castillero ratified the McNamara contract, and the original sent by him (Negrete) to Alexander Forbes, of Tepic, on the 19th of December, 1846.
In corroboration of this statement of Mr. Negrete, there is pi'Oduced a series of letters written by him to Alexander Forbes, from December 5th, 1846, to February 6,1847. In these letters Mr. Negrete informs Mr. Forbes of the state of his then pending negotiation with Castillero ; and in his letter of December 18th, *304advises him that he transmits “ the document showing the grant. which the Supreme Government made in favor of Don -Andres Castillero for two leagues of land,” &c.
These letters, which Mr. Negrete swears he saw for the first time since' they were written, when produced to him by the claimants in this country, he testifies are in his own handwriting and that of his clerk, Oruña, and signed by himself. He also identifies three checks or orders drawn by himself on his banker, Don Donato Manterola; one in favor of Castillero for $4,000, and receipted by the latter, and two in favor of Dor Nazario Puentes, the Notary, for $137.25, and $29.75, respec tively, both of which are receipted by Fuentes.
.. The testimonio or authenticated copy of Castillero’s instru • ment of ratification, containing the Lanzas dispatch, is exhibited It is signed by-Nazario Fuentes, the Notary Public, whose signature and signo are attested by three Notaries Public in a certificate under the seal of the National College of Notaries of Mexico, dated December 19,1846.
A second copy of the - same instrument, issued from the office - of the Notary Fuentes, under his hand and seal, is also produced. It is dated February 6, 1847, and is certified by three Notaries Public, under the hand and seal of the National College of Notaries. Among the three Notaries signing these certificates is Yillalon.. This gentleman has been examined as a witness.' He testified that his signature and signo on each of the certificates are genuine, that they were affixed'at their respective dates; that the signatures of the' other Notaries are genuine, as is also the seal of the National College. It is also shown that this instrument of the ratification was brought to California by Mr. ‘Walkinshaw-in 1847, when he toovk charge of the mine: and the terms of James Alexander Forbes’ ratification, in which the language of Castillero’s act is copied, show that the' latter must have been before him when writing his own ratification of the McNamara contract — a conclusion rendered certain by the •- very-distinct allusion in Forbes’ letter of May 5, 1847, “ to the possession of two sitios ordered to be given by the dispatch of Señor Castillo Lanzas.” ■
*3051 The claimants have also produced from the Archives of the Junta de Fomento, traced copies of the original borradores, or drafts, of the minutes of the Junta in April, May, September, November and December, 1849; also a traced copy of the clean copy made from those minutes, and authenticated by the rubrics Of the members of the Junta who assisted at the sessions; and finally, a copy of the ..entire volume 3d of the Minutes of the Junta from April 2,1846, to June 30,1847.
In these minutes, amongst a great number of other-.entries, we find a record Of the action of the Junta from the reception of the specimens- of cinnabar to- the payment of the Notary Calapiz, ■ when further proceedings were abandoned.
In the Actas of the session of April 23d, 1846, is an entry of -the receipt of specimens of cinnabar from the Presidio of Santa Clara,' in Calfornia, and a resolution that they be sent, with copies of Castillero’s letters, to the Director for assay.
On the 4th of May, the receipt of .the letter of the Director inserting the report of the Junta Faculatativa is noted, and it is resolved that it be transcribed to ■ the Supreme Government, representing that a reply has been made to Señor Castillero, asking him what kind of protection or assistance he requires
Oñ the 6th of May, the Actas show that Don Andres Castil lero appeared and made a verbal report, &c., and the Junta resolved that Señor Castillero should present his indications in writing. On the 14th of May, the receipt of the communication from the Minister of Justice dated May 9th is noted.
On the 25th of May is a like note of, the receipt of Becerra’s dispatch of the 20th, approving the agreement made with Castillero, &c., arid a resolution of the Junta that the proner judicial agreement be drawn up immediately, &c.
On the 29th of May, is a note of an order for the payment of $25 to the Notary Calapiz, for proceedings in the instrument of agreement which had been made with Castillero to assist his quicksilver enterprise, &c.'
The accuracy of the traced copies of the Actas is testifiéd to . by Mr. Bassoco, who compared them with the originals; and he also proves the existence arid authenticity of the originals in the *306Archives of the Junta, and the genuineness of his own rubrics and those of his colleagues affixed to them.
The claimants haye also produced, and filed as an exhibit, an original report made by the Junta de Fomento to the Minister of Justice relative to the matters confided to its care. This report is embodied in a report made to the National Congress by José M. Lafragua, Minister of Belations, and read before that body on the 14th, 15th, and 16th December, 1846.
The original manuscript “ Memoria,” or report by the Junta, •is stated by Mr. Bassoco, to have been procured by himself from Escalante, the agent of Lafragua. Its proper place of custody was the Ministry of Belations, but M. de Bassoco supposes that it had probably been taken by Mr. Lafragua to his own house, when the latter was preparing his report to tbe National Congress, and accidentally remained among his papers. He identifies the signatures and rubrics of Vicente Segura and Isidoro B. Gondra, which are affixed to it, and states his conviction that it is the identical document sent in by the Junta to the Minister.
On referring to the “ Actas” of the Junta, we find it noted on the 5th of November, 1846, that a dispatch was received from the Minister of Belations, dated November 8d, calling for an account of the labors of the Junta, to be furnished within eight days.
It also appears, that on the 9th the reading of the report was commenced; that it was concluded at the session of the 16th, and a resolution adopted, that the report should be transmitted to the Government; and that on the' 5th of December, a communication from the Minister acknowledging its receipt was received by the Junta.
Two copies of the report of Lafragua, in which the Memoria was embodied, are also offered in evidence by the claimants. It is a printed volume of considerable size.
Of these copies, one was originally produced by the claimants and identified by Mr. Lafragua, Mr. Bassoco and others.
A second copy has recently been produced and identified by the Hon. J. P. Benjamin, one of the counsel in the cause. •■. s having bien received by him in 1849, from Don José Garay, the *307validity of whose grant he was then investigating. The volume remained in Mr. Benjamin’s possession until about two years ago, when Mr. Rockwell, also of counsel for claimants called on him to retain him in this cause. In the course of conversation Mr. R. alluded to an official report of Mr. Lafragua, which, in his opinion, contained conclusive proof of the genuineness of the title of the claimant. From his description' Mr. Benjamin thought he recognized the volume in his possession as the one referred to, and immediately procured it from an adjoining room. On examination it was found to contain the passages relating to the discovery of the mine, &c., which are found in the copy previously produced by the claimants. Mr. Benjamin was not, until that time, aware that it contained anything in reference to the mine. At Mt. Rockwell’s request, he allowed him -to retain the volume, which he recognizes as the one now produced.
The claimants have also offered in evidence files of the “Diario,” the “Republicano,” and the “Monitor Republicano,” newspapers, in which the reading of Lafragua’s report, on the 14th, 15th and 16th December, 1846, is noticed.
It is unnecessary to extract at length the passages in this report, in which reference is made to Castillero’s discovery, and the action of the Government upon it.
They merely contain an account of the presentation of the specimens to the Junta by Señor Moral — the assay, the inquiry of Castillero as to the assistance he desired, his petition, and the Junta’s agreement to it; the approval of the agreement by the Supreme Government, and the failure to carry it into effect, owing to the order of the Supreme Government, of May 10th, 1846, directing the suspension of all payments from the public Treasury.
In the foregoing statement of the documentary and other proofs on which the claimants rely to show the action, by the Mexican authorities, in reference to the important discovery oí Castillero, much evidence as to various handwritings, signatures &c., has been omitted.
Enough has been set forth to show the nature and the force *308of tbe proofs offered in support of tbe genuineness of tbe documents exhibited.
It v ill be seen that the proofs do not consist of any one set of papers derived from a single office, the archives of which might have been falsified and the officials corrupted.
Each document is found in two, and some in three, distinct repositories. The barradores are produced from the offices- from which the communications emanated; the originals from the offices to which they were sent; and in some instances the communications are, according to the Mexican custom, inserted in dispatches from the office to which they were originally directed, and those dispatches are found in the archives of the Ministry to which they are addressed.
All the papers are so intimately connected and complicated with each other, that it is almost impossible to suppose any one to have been fabricated, unless the whole series be spurious. They are written in various handwritings, with a multitude of signatures, rubrics, etc., of well-known individuals attached to them. The same document contains, in some instances, no less than four different handwritings, viz., that of the clerk who drew it, of the official who signed it, of the clerk who wrote the membrete and acuerdo, and that of the Minister by whom the.latter was signed.
The writing is sworn to be that of clerks attached for many years to the offices from which the papers emanated. Their handwriting must, therefore, be well known, and a forgery of it could readily be detected.
When we consider the long series of forgeries, and the almost innumerable perjuries, which must have been committed if these documents are jiot genuine, the crimes imputed t,o the witnesses are as appalling as the extent and almost endless ramifications of the conspiracy to commit them are incredible.
We must suppose that Professors in a National College, forsaking their scientific pursuits, have carefully fabricated false minutes of the proceedings of the faculty of which they were members; that they have made a tedious and dangerous journey to sustain, by carefully-prepared perjuries, the forgeries they *309had committed; and that they have had ingenuity and .lepravity enough to give to their statements the appearance of truth, by inventing circumstantial details as to the reception of the specimens, the assay made of them, their deposit in the cabinet of the College, and even the purport of the tickets or labels upon them, which, as they state, can be seen by any visitor to- the College.
■With regard to the Junta de Fomento, the forgeries .and perjuries imputed are still more complicated and improbable. Not only must the various dispatches alleged to have been addressed by them to .the Director of the College, and to the Minister of Justice, with the signatures of the President of the Junta, and of the Secretary, the handwriting of the Clerk who drew the marginal notes upon them, and the rubic of the Minister appended, have either been forged, or falsely sworn to have been written at their dates, but a' series of actas, which record the proceedings and resolutions of the Junta, must have been fabri <;&ted, or extensively interpolated, and the rubrics of the mem bcrs forged. And, as if reveling in supererogatory crimes, they mast also have fabricated the borradores, or rough drafts, from which the clean copies of the minutes were made out — the existence of which would hardly have been suspected, and which it would naturally be supposed had been destroyed.
They must also have prepared a voluminous report to the Minister, in which has been inserted an account of these proceedings, precisely such as, if they had taken place, we should expect to find. The manuscript of this report, which is claimed to have been accidentally left among the private papers of the Minister to whom it was addressed, must have been forged, or the interpolated passages inserted in it, in a manner to defy detection. And they must also, at least as early as 1348, or in the beginning of 1849, before this case was presented or - a tribunal constituted to decide upon it, have procured the same interpolations to be made in the printed report of the Minister Lafragua, read to the National Congress in December, 1846, & copy of which was in the hands of Mr. Benjamin at least- as early as the fall of 1849.
After procuring these various forgeries and interpolations to *310be made, tbe claimants must have induced numerous -witnesses to elaborate and swear to a series of perjuries — minute, circumstantial and plausible — the invention of which displays nearly as much skill and ingenuity as the testimony in regard to them if false, discloses moral turpitude.
They must have succeeded in suborning, not merely a feu nameless and obscure individuals, but numerous persons in high official and social positions; and especially Mr. de Bassoco, a gentleman venerable for his years, and respectable for the singular intelligence and amenity with which he sustained the protracted, acute, and most searching cross-examination of the counsel for the United States.
They must also have procured two ex-Ministers of Relations to perjure themselves, not merely by false testimony before a Commissioner in Mexico, but in Court, within our jurisdiction and subject to our laws, with a full knowledge that the Govern • ment alleged the claim to be spurious, and that no efforts would be spared to detect and punish those who were concerned in the supposed conspiracy to defraud it.
Again this vast conspiracy, from its nature, could not have been successfully carried out without the complicity or connivance, not only of nearly all the officials in the various offices at the alleged dates of the papers, from the lowest probationary clerk or “meritorio,” up to the Minister of State himself, but also of those officers employed when the forged papers were afterwards' placed in the archives, as well as of all those who still more recently have certified to their genuineness; and yet, from all these persons concerned in or cognizant of the crime, no whisper has been heard betraying the important secret. Mr. Black, the United States Consul, continues to attach his certificate to the papers without suspecting that he might be lending his aid to a conspiracy to defraud his own Government; and Mr. Forsyth, the United States Minister to Mexico, and for some time resident at the Capital, examines the documents at the various Ministries, and states that " they are found in the several offices where they appropriately belong, were produced by the *311officers having custody of them, and that he saw nothing whatever to cause him to doubt their being genuine originals.”
But the proofs of the genuineness, in part at least, of the documents obtained from Mexico, are obtained from another and an unquestionable source.
Among those documents was found, as has been mentioned, the dispatch of Pio Pico, with the original letter of Castillero of December 10th, 1845,. conveying to the Supreme Government the first news of the discovery. There was also produced a traced copy of the borrador of the reply of the Minister.
It is stated by counsel, that the reception of these documents from Mexico first suggested to them the propriety of instituting a search for evidence of the correspondence in the Archives in the Surveyor-General’s office.
The search was accordingly made, and there was found the draft of Pio Pico’s letter to the Minister, the original of the Minister’s reply, together with a letter from Castillero, clearly referring to a previous one of the 10th December.
I am not aware that the genuineness of these documents pro-, duced from the archives in this city is questioned.
It thus appears that the archives from Mexico are corroborated on the only points where, from their own nature, they were'susceptible of corroboration by other records.
The existence of the documents now relied on to establish the title of the claimants, at least as early as the spring of 1847, and prior to the date of the supposed forgery, is also shown by testimony adduced by the United States.
We have already seen, that in James Alexander Forbes’ letter of May 5th, 1847, he alludes to “the possession of two sitios ordered to be given by the dispatch of Señor Castillo Lanzas.”
' In hi.» letter of July 14th, 1847, he speaks of the “ two leagues conceded to Castillero and socios,” and throughout his correspondence frequent and unmistakable allusions occur to the Lanzas dispatch, with reiterated expressions of distrust of its validity.
. The same objections made to the document in 1847, are re- . peated and enforced up to February, 1850, long after the date of *312the alleged forgeries, but without the slightest intimation that during that interval a second Lanzas dispatch had been fabricated. The document now exhibited is open to all the objections, and liable to every criticism originally made, and so constantly repeated, to the document received by Mr. Forbes in 1847. He complains, in 1850, that his suggestions relative “to the attainment of the important document,” explained in his memorandum left at Tepic, in 1849, have not been acted upon. He expatiates upon the insufficiency and discrepancies of the Castillo Lanzas dispatch; but he nowhere breathes a word of reproach or complaint that an abortive and absurd forgery had been committed, the only result of which had been to leave the title as “ imperfect and ambiguous ” as before.
Had such been the case, we learn enough of Mr. Forbes’ dis position from this correspondence to feel sure that reproaches would not have been spared.
There is one other consideration, and it is the last to which 1 shall advert, which naturally leads us to infer, independently of the proofs, that some proceedings similar to those alleged to have-been had, must have taken place in Mexico.
So far back as the Ordinances of 1783, quicksilver had been the subject of distinct and special legislation. The feet that it was indispensably necessary to the extraction of the precious metals, gave to it an exceptional character, and an ample and cheap supply of it had been recognized as essential to the development of the mineral wealth of Spain and Mexico.
It is unnecessary to recapitulate the various decrees and laws of those countries designed to promote the discovery and production of this metal. It is sufficient to say, that out of the public revenues of Mexico a part had been devoted to the formation of a fund called the “ Fondo de Azogues,” to be used in searching for and developing mines of quicksilver.' On every quintal produced a bounty was paid, and to those who should succeed in producing a specified quantity per year, a large sum of money was to be given.
The hope of discovering rich mines of quicksilver within the Republic had led the Junta to institute expensive explorations *313in various parts of the country, and on all sides it seems to have been considered a national object of primary importance to liberate the Republic from its almost entire dependence on the mines of Almadén, from which the chief supply was obtained.
When, therefore, Castillero discovered a mine of which the “ ley ” surpassed in richness any that had previously been known, and when shortly afterwards he proceeded to Mexico, it is not conceivable that he should have neglected to inform the Junta of his discovery, and requested of it the assistance in the prosecution of his enterprise which it was one of the most important objects of its institution to furnish. That he would have desired the ratification of his mining possession, and especially a grant of two leagues, we may infer from the fact that he had already solicited a similar grant from the Governor of California.
That the Junta would have received the announcement with the utmost satisfaction, and zealously co-operated with him by recommendations to the Supreme Government, and aiding him by all means in its power, we might conclude even without any proofs of the facts; and proceedings similar to those alleged to have occurred, would have been the natural and almost inevitable consequence.
These proceedings may, it is true, have been interrupted by the breaking out of war and the alarming condition of public affairs; nor do the considerations last suggested authorize us to assume that the dispatch of Becerra, or that of Lanzas, were in fact written at their dates; but they justify the conclusion that the proceedings were initiated, and that the records of them produced from Mexico are at least in part genuine.
Having thus given an imperfect summary of the proofs offered by the claimants, I proceed to consider some of the objections urged on the part of the United States.
It is contended that neither Lazaro Pifia, who is alleged tc have carried the specimens of cinnabar to Mexico, nor Castillero himself, could have arrived in that city at the time indicated by the documents produced. If this be true, and an alibi can be proved as to those persons, we may well regard with suspicion documents found to be false in so important a particular! But *314the proofs offered by the claimants on these points are too cleat to admit of doubt.
We have already had occasion to notice the letters addressed by Castillero while in this country to Gen. M. G. Vallejo, at the christening of whose child he had assisted, and who thus became his compadre.
In a letter addressed to Vallejo, and dated February 21, 1846, Casillero says: “By,the brigantine schooner which brought these communications,” (referring to communications spoken of in the preceding sentence of the letter) “we have received information,” &c. “This vessel sails shortly, and will carry communications of what has occurred lately. Myself or Pina will■ leave in it, or loth together. I am only detained waiting the arrival of the division which may touch here in a day or two.”
In another letter dated March 11, 1846, to the same person, he says: “ PiSa embarked on the 4th of this month in Monterey, and was dispatched in perfect order. He will travel post to Mexico.”
These letters are produced by General Vallejo. He swears that they were received shortly after they were written. The signature and handwriting of Castillero are not disputed. If antedated, they must have been written by Castillero in Mexico, and sent on to Vallejo to be produced and sworn to by him— a supposition extravagant in itself, and disproved by the intrinsic evidence of the letters themselves, which contain allusions to passing events, and are couched in a style impossible to invent after the lapse of years.
In corroboration of this statement, the consular books of Mr. Larkin, then United States Consul at Monterey, have been produced. They are identified by Mr. Swasey, the consular clerk at that time. From these books it appears that the brigantine schooner “ Hannah ” was noted as about to sail to Mazatlan on the 4th of March, the day on which Castillero supposed she had actually sailed. It also appears that the Consul, desirous of sending dispatches to the United States, detained her three days, and a note in his memorandum book shows that she in fact «ailed on the 7th
*315Shortly after the sailing of the Hannah, becoming alarmed for the safety of Colonel Fremont, who was then encamped on the peak of Gavilán, and expecting an attack, Mr. Larkin sent by a special courier dispatches to Santa Barbara, in the hope of intercepting the Hannah at.that port, and of having them conveyed by him to Commodore Sloat at Mazatlan.
That the Hannah arrived at Mazatlan on the - 1st April, we learn from various sources.
First. The “ Diario Oficial,” a newspaper published in the City of Mexico, contains in the number published on the 22d April, under the head of “Marine news. Mazatlan, — arrivals of vessels,” a notice of the arrival at Mazatlan, on the 1st April, of “the American brigantine schooner 'Hannah’ of eighty-nine tons, Captain Benjamin F. Thusum, and a crew of ten men.”
Second. From a letter of Mott, Talbot & Go., merchants of Mazatlan, addressed to Mr. Thomas O. Larkin, and found among his papers since his decease.
This letter is dated “ U. S. S. Portsmouth, 1st April, 1846,” and informs Mr. Larkin that his letters have this moment arrived “ per ' Hannah.’ ”
Third. Mr. Larkin’s letter to Capt. Gillespie, a copy of which is found in his consular book, which Mr. Swasey swears to have written himself.
In this letter Mr. Larkin says: Capt. Montgomery, of the Portsmouth, being under sailing orders (the 1st or 2d instant), was waiting at Mazatlan for the Mexican mail, when Commodore Sloat heard per brig Hannah, of the situation of Capt. Fremont near St. Johns, and immediately dispatched the-ship; she was twenty-one days from Mazatlan to Monterey.”
Fourth. The positive statement of Mr. Swasey, clerk to Mr. Larkin, that the latter sent dispatches by the brig Hannah, in March, 1846, in consequence of which the Portsmouth came to Monterey.
These proofs leave no room for doubt as to the sailing of the “ Hannah from Monterey, in the early part of March, with Pifia on board as a passenger, unless, indeed, we adopt the theory of the Government, amd assume that the letter of Castillero to *316Vallejó is forged, and that the latter has committed perjury; that the notes, of entries and departures in Larkin’s consular book are also forged; that the letter of Mott, Talbot & Co., is forged; that the letter of Larkin to Fremont, of March, 8th, as also his letter to Captain Gillespie of April 23d, are forged; that-a number of the “ Diario Oficial,” purporting to be datéd April 22d, has been prepared and procured to be printed, and a false. entry of pretended .marine intelligence from Mazatlan inserted in it; and, finally, that Mr. Swasey, and probably Mr. Larkin’s son, have committed deliberate perjury in swearing to the genuineness of the books and papers of the' deceased Consul. All this we must assume on the faith of a single statement made by Captain Paty, of the bark Don Quixote, to the effect that “Don Andres Castillero and his servant {Lazaro Pina, I think, was his name,) were passengers” on board his vessel, on .her voyage from Monterey, in April, 1846. But, even supposing that Captain Paty’s memory is accurate, and that Lazaro Pina did not sail in the Hannah, but remained to accompany Castillero in April, it only proves that the latter was mistaken when he wrote to Vallejo from Santa Clara that Pina had embarked on the 4th of March from Monterey. It may have.happened, that in the three days during which Larkin detained the Hannah, something occurred to induce Castillero to countermand his orders to Pina, and to send his letters and specimens by another hand; for, it must be borne in mind, that proofs of the precise mode in which a few letters and specimens of ore were sent to Mexico fourteen years ago, cannot reasonably be exacted of the claimants. It is surely enough if they show that a vessel sailed about the time supposed, in which Lazaro Pina,' or any other messenger of Castillero, might have been a passenger. If the United States co tend that the letters and specimens were not and could not hávé béen received in Mexico at the time indicated in the documents produced from that city, and therefore that those dbcuments are false, it is for them to establish the fact.
It is also suggested that Castillero was not in Mexico at the time at which he is alleged to have presented himself before the Junta.de Fomento.
*317■ The evidence relied on by the United States to support this assertion, consists of a publication in an evening paper in Mexico, of the. 6th of May, 1846, of the receipt by the Government at the last moment before the paper went to press of important intelligence from California. As this intelligence was undoubtedly contained in the dispatches sent by the vessel which carried Castillero, it is inferred that he could not have arrived in time to be present on the 6th at a meeting of the Junta; and, therefore, that the actas are false.
That Castillero might have reached Mexico in the first dai s of May, is evident from the fact that he left Acapulco on the 24th of April.
As to the precise time at which the dispatches of which he was the bearer, or which had been sent by the vessel which conveyed him to Acapulco, arrived in Mexico, we have no means of ascertaining, except from the publication referred to. '
The paper purports to have been published at three o’clock, P. M. of the 6th; as the dispatches were .addressed to the Government, and not to the newspaper, it may be assumed that they were first delivered at the appropriate Ministry. What the diligence or energy of Mexican journalists may be, in obtaining the latest news, and how long an interval would probably elapse before they would possess themselves of the contents of a Government dispatch, we are wholly uninformed. That the news was communicated to the newspapers shortly after twelve M. of the 6th, may be inferred from the fact that it was in print at three, P. M. It is not surely unreasonable to suppose that the dispatch reached the .Government on the previous evening, or early in the same morning. I see no reason why Castilleru might not, after delivering his dispatches, have presented himself to the Junta' on the same day. It appears from the minutes of the session of the 4th, that having learned the result of the assay, the Junta had made a reply to Castillero, asking him what aid he required. Castillero would naturally, therefore, have presented himself to the Junta immediately upon his arrival; for, besides the invitation of the Junta, and his other reasons for expediting the business, he had engaged the master *318of the “ Don Quixote ” to remain for him at Acapulco on her return voyage. This Captain Paty testified he did. But after waiting at Acapulco from the 21st of April to the 18th of May he received news that Castillero would meet him at Mazatlan of San Bias. He touched at those places but heard • nothing of him. The circumstance, apparently unimportant, that Castillero determined to rejoin the vessel at Mazatlan, and not at Acapulco, as originally intended, is in precise accordance with the arrangement alleged to have been entered into by him with the Junta, viz.: that he was to receive the sum of $5,000 in the form of a draft on Mazatlan.
The importance of this incidental corroboration is perhaps not great. It seemed, however, worthy of mention ■ But with regard to the inferences sought to be drawn against the genuineness of the actas, from conjectures as to the probable time of the arrival of the' dispatches in Mexico, it seems to me obvious, on any hypothesis, that those dispatches must have been delivered, and Castillero have arrived in Mexico, in time for him to present himself before the Junta on the 6th, as their minutes show.
Prom the foregoing, it appears that the evidence on the part of the United States is insufficient, not only to disprove, but even to raise a doubt as to the fact of the reception of Castillero’s letters and specimens, or of his own appearance before the Junta at the dates mentioned in the actas of that body.
But it is objected that the documents produced from Mexico are not admissible in evidence.
This objection- is based on the ground that all muniments of title are incident to the land, and pass with it as if a part" of it.
That, therefore, all archives of Mexico relating to the disposition of public lands in California, were included in the treaty and passed to the United States with the cession of the soil. It thus became the duty of the political power to execute the treaty with reference to the muniments, as well as the land, and until that is done, and the political power obtains those muniments and presents them to the Courts, the latter cannot judicially recognize their existence. • ■
*319No authority directly in point has been cited in support of. this position, but a vivid picture has been drawn of the possible evils which might result if adverse claims to the. lands of the United' States were allowed to be set up, founded on alleged public records existing in a foreign country, and proved by the depositions and certificates of foreign officials.
It will be seen that this objection would apply, although the genuineness and the sufficiency of the documents to convey title were undisputed. If a public and formal grant of a certain tract had been made, to establish which and to show the proceedings which led to it, evidence from the Mexican archives were necessary ; if the Congress had by law conveyed a title to an individual, of which the only evidence existed in the reports of committees and the journals of that body, the principle contended for would require the Court to reject all such documentary evidence, no matter in what way proved or authenticated; for they are to be rejected, not because their genuineness is doubtful, but because they are archives and muniments of title to -land.
It is admitted that, as a general rule, the right to muniments of title passes with the land, and he who owns the latter is owner of the evidences of his title to it.
But in the cases submitted to this Court under the Act of 1851, the inquiry always is, who is the. owner, the United States or a private individual?
The United States, in consenting to be sued, -and in submitting her rights to the determination of Courts, has abdicated, pro tanto, her prerogative as a sovereign, and appears before the Court precisely as any individual who asserts an ownership in land.
To say, then, that all muniments of title belong to the United States as owners of land, and cannot be noticed by the Courts until commended to them by the Political Department of the Government, is to assume the very point the suit was instituted to determine; for the question is — does the United States own the land ? The claimant avers that she does not, and nevér did, and in support of his claim he produces muniments of title which, on the very principle contended for, belong to him and *320not to the United States, for they are the muniments of title to his own land.-
I cannot perceive, therefore, that the familiar.doctrine of the common law, which regards title deeds as incident - to the land and as passing with it, has any application.
In the argument submitted by the counsel for the United States, the distinction seems to have been lost sight of between the political rights of the United States as a sovereign and her purely proprietary rights as an alleged owner of land, which are alone passed upon in this class of cases.
In defining the boundaries of the Territorial Sovereignty of the United States; “in determining whether a particular tract is within the limits of a territory the sovereignty'of which has been ceded by treaty to the United States,-the Courts must always adopt the construction given to the treaty by the Political Department (Elam vs. Neilson, 11 Peters R. 282). But when the United States consent to appear merely as a suitor in the Com is ■and to litigate her rights with an adverse private claimant, tbe rights of both must be determined by the application of the ord t-nary rules which prevail in actions betwéen private individuals.
Tt is remarked by the counsel for the United States: “ If t; ,e Judiciary were authorized to say what land was intended to Ve transferred, and what papers as muniments of title and incidental to the land, it might designate land and accredit papers which the Political Department did not, and thus conflict might arise vithin the Government itself.”
But this is precisely what the highest authority of the nation nas, by the law of 1851, enjoined upon the Courts to do. The very object of that law was, that the Courts should ascertain what lands passed to the United States by the Treaty, and what lands were private and did not pass. The question, by that law, was converted from a political to a judicial one, and no conflict could possibly arise, for the political and all other departments are by law required to be governed by the decision of the C< >urt, which determines what is public land belonging to the United States, and what is private land belonging to individuals.
There is something repugnant to reason and justice in the *321idea that the United States, after consenting to appear as an ordinary litigant before the Courts, and submit her proprietary rights to their determination, should suddenly, in the midst of the suit, throw off her character as a mere party to a suit respecting the ownership of land, or rather, without ceasing to be such, should resume and assert her sovereign rights, and announce to her antagonist that evidences of title he offers, though genuine and conclusive, shall not be admitted by the Court unless presented to it through and by. herself; while, at the same time, she refuses to obtain them from the foreign government, or to receive them,- if offered, or to present them to the Court, if received.
Compared with such manifest injustice, the evils which might result from possible impositions practiced on the Courts by means of forged archives, &c., are insignificant.
I think the general objection to the admissibility of the documents, because they are Mexican archives, not recognized j.s such by the Political Department of the United States Government, cannot be maintained.
Assuming, then, the documents from the archives of Mexico to be genuine and admissible, I proceed to consider their -legal effect:
1.. As to the alleged ratification of acts of the Alcalde Pico. This ratification is supposed, by the claimants, to be contained in the dispatch of Becerra to the Junta, of May, 20, 1846, and in the marginal “ acuerdo ” on the letter of Vicente Segura, signed with the rubric of the same Minister.
The dispatch of Becerra announces, as we have seen, to the Junta, that “ His Excellency [i. e. the President] has been pleased to approve, in all its parts, the agreement made with that individual [viz., Castillero] in order to commence the working of said mine.”
The “acuerdo”-on the margin of Segura’s communication -is as follows :* “ Granted, in the terms which are proposed, and with respect to the land, let the corresponding order issue to the Minister of Eelations for the proper measures of his office, with *322the understanding that the Supreme Government accedes to the petition.”
An “ acuerdo,” or order on the margin of a letter, petition, or communication of any kind, is merely an expression of the determination of the Minister or- other functionary to whom it is addressed, in regard to its subject-matter. Its chief use was to direct the clerks or other subordinates in the preparation of the ”eply, or in taking other action with regard to it. If the pro-' ceedings has been interrupted after the “acuerdo” is affixed, but before the dispatch is written or title issued as directed, it may be regarded, not unreasonably, as a species of equitable ■ title, or as sufficient, coupled with other equitable circumstances, to justify the party in asking the completion of the proceeding so initiated. But when the title has issued, or the dispatch been written in pursuance of the “ acuerdo,” when the latter has been submitted to the Minister, and approved and signed by him, the dispatch so approved and signed is the highest and best evidence, not only of the action of the Government in the premises, but of the true intention of the “ acuerdofor, surely, no argument is necessary to prove that an official reply) signed by a public officer, is better evidence of his resolution, with regard to a particular application, than a direction to his subordinates as to' the form in which the reply is to be drafted.
Dismissing, then, the “acuerdo,” or rather treating it as intending precisely what the dispatch, prepared in obedience to it, expresses, let us consider the true import and effect of the latter.
It will be observed that the dispatch of Becerra does not, in terms, profess to ratify any mining possession or grant, either of lands or' of pertenencias. Nor does it announce that the President has been pleased to make such ratification. It merely informs the Junta that His Excellency has approved an agree-’ . ment made by the Junta with Castillero.
It is not pretended that any such agreement was, at that time, ■ or afterwards, formally entered into between the parties. The. propositions of Castillero are dated May 12th. The communication of the Junta is dated May 14th, and Castillero himself, in *323the preamble to the statement of his propositions, expresses his persuasion that the Junta will accede to his request “ so far as may be within its powers, and that it will send up to the Supreme Government with a recommendation that which may require the decision of the latter.”
■' From the communication of the Junta it is evident that the authorization of the Supreme Government was necessary to' enable it to furnish Castillero with the iron retorts and flasks bélonging to it, as also to make him the loan he solicited .pf $5,000, payable in quicksilver at $100 per quintal, and without the five per cent, premium per annum which the law required it to exact.
"Until the approval of the Supreme Government .of this pro; posed arrangement could be had, no formal contract could be entered into. It was, therefore, not until May 25th, and after the receipt of Becerra’s communication approving the proposed contract, that the Junta resolved “that the proper judicial agreement be drawn up immediately, and that application be made for the draft for the $5,000 on Mazatlan or Guadalajara,” as appears by the actas of that day.
That the agreement was never so drawn up and executed is admittedand on the 29th of May an order was made for the payment of the Notary Oalapiz “ for proceedings relative to it,” its consummation having been prevented by the order suspending all payments out of the quicksilver fund.
The language- of the dispatch is, therefore, evidently inaccurate in speaking of the approval of the agreement made or “ convenio celebrado” with Castillero. Its evident intention was. to signify the approval by the Government of the agreement proposed to be made, and which the Junta had expressed its willingness and even anxiety to enter into.
"What the agreement was, which, after the approval of the Government had been obtained, the Junta and Castillero had fixed upon and nearly consummated by a formal, act before a Notary, we learn from the Beport of the' Junta-.of November 17th, 1846, produced by Señor de Bassoco, and embodied in Mr. Lafragua’s report in December of the same year.
*324In this report, the Junta, after giving an account of the pre sentation of cinnabar ore, &c., by Señor del Moral, of its assay, and of their inquiry of Castillero what aid he required, proceeds as follows:
“ The Señor presented his petition in due form, and it having been very attentively' examined by the Junta, he made his propositions, to which this Junta agreed, to wit: That there should be delivered to him $5,000 in money, eight iron retorts oí those which the Junta ordered to be made for the examinations previously made, and all the quicksilver flasks it had in the nego tiation of Tasco; Señor Castillero obligating himself, on his part, to repay said advance in quicksilver at the rate of $100 per quintal, within six months from his leaving the port of Mazatlan. This agreement was approved by the Supreme Government' on the 20th of the same month; but on account of the declaration of blockade made by the United States of the North, when he was about to receive the draft on Mazatlan, the Ministry issued the order of September 19th of this year, directing the suspension of all payments of the branch of quicksilver, except those for the support of the College and the expenses of the office.”
In this account of the cause, and the date of the abandonment of the agreement with Castillero, the Junta are evidently inac curate; for their own actas show that the communication informing them of the blockade of Yera Cruz and Tampico, and directing the suspension of all payments for the extraction of quicksilver, was dated on the 27th of May,-and received by the Junta on the 28th; and on the 29th, the Notary Calapiz was paid for his proceedings in relation to the intended contract.
The communication of the 19th of September ordered that the assets of the quicksilver fund should continue to be used merely for the support of the College, and it demanded a loan of $25,000 from the Dotal Fund. This was strenuously opposed by some of the members, on the ground that the Dotal Fund was the private property of the creditors of that fund. As these discus • sions occurred less than two months previous to the date of the report of the Junta, and were no doubt fresh in its recollection, and as the report was prepared in great haste, only eight days *325being allowed for tbe purpose, tbe Junta fell into tbe error of ascribing the breaking off of the negotiation with Castillero to the order of September 19th, instead of to that of the 28th of May.
But with respect to the agreement made with Castillero, and approved by the Supreme Government, the report is very ex plicit. It sets forth the terms of that contract with a clearness which leaves no room .for.doubt as to what it was that the Supreme Government approved.
The agreement thus entered into embraced all the subjects upon which the, Junta had authority to act. Nor can it be said that the approval of the Supreme Government was only required as to the ie propositions of Castillero which related to the ratification oí his mining possession and a grant of two leagues, for' we learn from the letter of the Junta that that body had no authority, without the approval of the Government, either to sell the ret erts and flasks desired by Castillero, or to lend him a large sun without interest, to be repaid in quicksilver. But viith the granting of lands, the Junta had nothing to do, and whatever might have been the resolution of the Government on C astillero’s seventh and eighth propositions, it would never have bsen commuii icated to the Junta in the form of an approval of a i agreement into which they were supposed to have already entered.
Some stress has been laid on the use of the word “concedido,” or “ granted,” in the marginal “ acuerdo ” of Becerra.
Had this word appeared alone, and been written on the margin of Castillero’s petition, it might, perhaps, have been considered evidence that the whole- prayer of the petition had been granted. But it is written on the margin of the Junta’s letter, and clearly imports that its request was granted, viz., that the proposed agreement was approved, as is unequivocally shown by the official dispatch written on .the same day, and in pursuance of the marginal order of the Minister.
We shall presently see that the petition of Castillero was for land, and not for additional mining pertenencias.
The acuerdo therefore adds:—
“ With respect to the land, let the corresponding order issue *326to the Minister of Relations,. for the proper measures of his office with the understanding that the Supreme Government accedes to the petition.”
The corresponding order did issue — we have it in Becerra’s dispatch to the Minister of Justice. The proper measures were taken in his office — we have them, in his dispatch to the Governor of California: and.from it alone can we learn what was done by the Government “ with respect to the land ” petitioned for by Castillero
It has already been stated that the Act of Possession of the Alcalde Pico embraced two distinct objects: first, the judicial possession of a mine, with the number of pertenencias allowed by law — but, how many, both the Alcalde and' the parties seem to have been uncertain ; secondly, a grant of a tract of land extending three thousand varas in every direction, as a “ gracia ” or gift to Castillero. The distinction between these two acts of the Alcalde is not only admitted but strenuously insisted on by the counsel for claimant, and it was contended that the first was legal and valid, while the second is conceded to be utterly nugatory and void.
When, therefore, Castillero asked that the Junta would recommend the approval by the Supreme Government of the •possession which had been given him of the mine, in the same terrina as those in which he then held it, he must have intended to ask either for a ratification of the possession of the mine, or for an approval of the grant of three thousand varas of land, or for both.
That he did not ask for three thousand varas to be given him as additional pertenencias, is admitted by one of the able and eminent counsel who argued the cause for the claimant.
In the printed report of his argument, he is asked by Mr Randolph, of counsel for United States:
You argue, then, that the Junta, misunderstanding this docu ment of-Castillero’s, supposed it to be for additional pertenencias and as such recommended its confirmation.
Mr. Benjamin. — “Certainly”
.But this was not the only error into which the Junta fell; fo? *327they not only supposed that Castillero was seeking additional mining pertenencias, and merely a tract of land for his hacienda, &c., as well as two square leagues to supply wood for his burnings, but they supposed the three thousand varas so desired, would only amount to fifteen pertenencias, whereas they would amount to nine hundred. The Junta evidently supposed that Castillero solicited a tract three thousand varas long, and of the width of one pertenencia. As a pertenencia is two hundred varas in length, a tract three thousand varas long would comprise exactly fifteen pertenencias. They overlooked the fact that the tract was to be three thousand varas “ in every direction," or six thousand varas square, making nine hundred pertenencias. ■
If then, the Supreme Government had formally, and unequivocally signified its assent to this recommendation of the Junta, and ratified the possession as represented by them, it may well be doubted whether in- a Court of Equity it could be deemed to have ratified any more than a possession of fifteen pertenencias, which was all that Castillero, speaking through the junta, demanded.
But the fact, that the Junta thought it necessary to devote so much time, and to suggest so many arguments, to induce the Supreme Government to ratify a supposed mining possession of fifteen pertenencias, justifies the supposition that had. they known it to have comprised nine hundred pertenencias, they would probably have withheld their recommendation.
That both the Junta and the Supreme Government were willing to assist the enterprise of Castillero by every means in their power, is evident. Their object in so doing, was not to confer a favor on Castillero personally, but to promote the production of quicksilver in the largest quantities, and at the cheapest rates possible.
The same policy would have forbidden them to give a single miner nine hundred mines, of one. pertenencia each, and thereby to exclude from so large a trac t all miners who might otherwise have discovered and developed new mines in the vicinity, and increased the production and diminished the price of the metal the Government was so anxious to obtain.
*328It has appeared to me that the very considerations urged by the counsel of the claimant with regard to the'policy and interest of Mexico in promoting the production of quicksilver render it impossible that it could, consistently with that policy, have consented to a monopoly by a single miner of a mining tract of such enormous dimensions.
It is clear, therefore, that the Supreme Government could not have intended to ratify the possession of -the three thousand varas as mining pertenencias.
But we have already seen that the approval by the Government of the agreement made by the Junta, is conclusively shown not to import a ratification or grant of any pertenencias or lands whatsoever; for the terms of the agreement so approved are disclosed to us by the Junta itself, and can be ascertained as exactly as if the formal instrument had been executed by the parties, the approval of the Government appended to it, and were now before us.
It does not appear that the Act of Possession of Pico was ever exhibited either to the Junta or the Supreme Government. If it had been, it would have disclosed the fact that the mine had been denounced and possession of it given, as on the lands of José Reyes Berreyesa. It would also have been seen that the Alcalde had assumed to grant a tract three thousand varas in every direction from the -mouth of the mine, which must have included a large portion of the land of a private individual, even supposing that the mine itself might not have been within his limits. Adopting the obvious construction of the Act of Possession contended for by the claimants, and regarding that act, and the ratification asked for by. Castillero, as referring to a tract, of land and not to additional pertenencias, and assuming with the distinguished counsel for the claimants, that the Junta was mistaken in supposing that any number of additional pertenencias, whether fifteen or nine hundred, were asked for, we may well doubt whether the Supreme Government, if informed that this tract would in great part include private property, would have so readily made the grant. We have no reason to suppose tbat, as between individuals at' least, rights of property are not *329as scrupulously respected and enforced by the Mexican as by other nations.
Again, it is contended that in addition to the grant of three thousand varas in every direction, made by the Alcalde and approved by the Supreme Government, there were also granted to Castillero two square leagues of land, to be measured in like manner from the mouth of the mine.
The mode adopted and the precautions observed by the Supreme Government' in signifying its willingness that sucha grant should be made, will hereafter be adverted to.
Our only concern with it at present is to observe, that on the claimant’s theory, the Supreme Government first ratified a concession of six thousand varas square, or more than a league and a quarter in extent, and then issued orders for a further grant of identically the same land, with three-quarters of a league in addition. Its resolution with regard to the latter is formally and regularly communicated to the Governor of California, who was directed to take the proper steps to carry out the intention of the Government; while with regard to the former, its determination is supposed to be expressed in á declaration that it approves a contract, the terms of which we know, and which . has no reference, nor' could it have had, to grants of land; and ■ the approval of which, if it could by possibility be construed to mean an approval of all Castillero’s propositions would import a grant of the two sitios, as clearly as it would import a ratification of the concession of the six thousand varas square.
But the dispatch of Becerra to the Minister of Relations informs us to what part of Castillero’s petition the President thought projjer to accede, in language too explicit to be misunderstood.
After transcribing his letter to the Junta, Becerra says: “And I have the honor to transcribe it to your Excellency, to the end that with respect to the petition of Señor Castillero, to which his Excellency the President ad interim has thought proper to accede, that there be granted to him two square leagues as a colonist,” &c.
It is insisted by the counsel for the claimants, that the words *330“that there he granted to him tivo square leagues as a colonist,” are descriptive of the petition of Castillero to wbicb tbe President acceded. The observation is just. - Sucb is no doubt tbe true construction of tbe dispatch, and it establishes beyond doubt, that in acceding to tbe petition tbe President' meant only to accede to that part of it wbicb asked for a grant of two leagues as a colonist, without expressing any resolution as to tbe application for a. ratification of tbe concession of three thousand varas.
As, then, tbe supposed ratification is not contained in tbe approval of tbe contract of tbe Junta, nor in tbe acceding by tbe President to tbe petition for two leagues in colonization, it must be found, if at all, in tbe word “concedido” or “granted" in tbe acuerdo. But for tbe reasons given above, I am satisfied that no sucb signification can be attached to that word in tbe face of tbe dispatches written in pursuance of tbe acuerdo, and wbicb embody and explain its meaning.
But if any doubt could remain as to tbe true intention and effect of tbe approval of tbe Junta’s contract, it would be dissipated by tbe evidence afforded by tbe acts of tbe parties, of tbe construction placed upon it by themselves.
Throughout tbe whole negotiation for tbe purchase of barras or shares in tbe mine, conducted by Mr. Negrete on behalf of Mr. Eorbes with Castillero in person, tbe latter, though urged to exhibit bis documents of title, produces only tbe dispatch of Castillo Lanzas for two leagues.. In tbe instrument of ratifica tion the mine is spoken of as of three pertenencias in extent, and Castillero “cedes in favor of tbe contractors of supply (aviadores), and for tbe sixteen years of bis contract, tbe two square leagues of land of wbicb tbe Government has made him a concession, as shown by tbe official document wbicb be pre sents, that it may be inserted at tbe end of tbe present instrument.”
Tbe Lanzas dispatch is accordingly copied in tbe instrument, but not tbe slightest allusion is made to any other grant of three thousand varas in every direction made by an Alcalde, and approved by tbe Supreme Government.
*331- In all the transactions between the parties, the idea is but once suggested, that the approval of the Junta’s contract with Castillero imported a ratification of the Alcalde’s concession of three thousand varas.
It occurs in Alexander Forbes’ letter to James Alexander Forbes of February 8, 1850. In that letter Mr. Forbes says:
“We think at present it may be the best plan to get an authen ticated copy .of the approval by the Mexican Government of the ■ three thousand varas given by the Alcalde on giving possession of the mine. As a doubt may be started as to whether the Alcalde, acting as the Juez de Minería, had a right to make this grant, yet, if approved by the Mexican Government -before the possession of the country by the Americans, there could be no doubt on the subject. This takes in our hacienda, and unless opposed by the Berreyesas, would, I should think, settle the question. Castillero says such an approval was given, and that on his arrival in Mexico he will procure a judicial copy of it. This is the plan we shall adopt, if we hear nothing from you to alter this resolution.
“ Since writing the foregoing, I have looked over your private letter to William Forbes, dated 18th October, in which you state the limits or boundaries as follows: ‘ The boundaries must be expressed as joining on the north and northwest by lands of the ranchos de San Vicente and de los Capitancillos, and the east, south and west, by Serranía or Tierras baldías ’
“ Castillero is not certain of accomplishing this latter plan, but thinks the first, that is the three thousand varas, the best.”
It will be observed that this letter unmistakably discloses the “ plan,” which James Alexander Forbes had suggested, and Alexander Forbes adopted, of obtaining fraudulent and antedated documents from Mexico expressing the boundaries of the two sitios, &e. No reliance can therefore be placed on the statement that Castillero said the approval was given.
But whatever he may have told Mr. Forbes, the approval and the agreement approved are before us, and we have already seen that they; contain no allusion to any concession of land by an Alcalde.
*332The silence of Castillero "during his negotiations with Mr. Negrete, is far more significant than any statement made four years afterward to Mr. Forbes, nor dan it be said that at the time of those negotiations he was ignorant of the action of Government ; for the Castillo Lanzas dispatch, then in his possession, and inserted at the end of the contract of ratification, recites the Becerra dispatch, which contains the approval of the contract, the parties were in Mexico; the public offices were accessible, and it would have been easy to ascertain what was the contract approved. That Castillero knew what that contract was cannot be doubted; and yet he and all the other parties, through a series of years, treat the dispatch as a concession of two leagues, but never suspect it'to contain evidence of, or to be in itself, á ratification of the Alcalde’s gracia, or. gratification. Even so' late as the date of Mr. Halleck’s affidavit, James Alexander Forbes, with the notarial copy of the Lanzas dispatch in his possession, never seems to have imagined that, the dispatch of Becerra inserted in it, and announcing the approval -of the Junta’s contract, constituted the ratification he so much desired of the Alcalde’s grant of three thousand varas.
I think it clear, therefore, that the dispatch of Becerra cannot be construed to import a ratification of the action of the Alcalde, either in respect to the- possession of the mine, or to the grant by him of three thousand varas.
As to the alleged grant of two leagues. It cannot be denied, that if the documents, produced by the claimants be genuine, they show that Castillero ..presented a petition for two square leagues of land; that this petition was by the Junta de Fomento submitted to the Supreme Government; that the Junta was formally apprised by the Minister of Justice that the proper communication had been sent to the Minister of Relations, that suitable orders might be.issued by him with respect to that part of Castillero’s petition; that a communication was accordingly sent to that Minister, .informing him that the President had acceded to Castillero’s petition, and requiring him to issue the corresponding orders; and that the Minister of Relations, in pursuance of these" instructions,- transcribed the communication to *333the Governor of California, in order that in conformity v xth what the laws and dispositions on colonization provided, be might put Señor Castillero in possession of the said two leagues.
It is manifest that this dispatch of Castillo Lanzas does not by its terms grant the land solicited. It contains no words translative of title; it is not addressed to the supposed grantee, but' to the Governor of California'; it cannot have been intended to serve as a muniment of title to Castillero, for otherwise it would have contained formal words sufficient to vest the estate in him.. Ibis merely an official communication addressed by one executive officer to another, which, for aught that appears, might as well have been sent to the Governor of California by a courier as by the hands of Castillero. It contains, however, an unequivocal official declaration that the President of the Eepublic had thought proper to accede to Castillero’s petition, and an order to put him in possession conformably to the laws on colonization.
The case thus resembles in some respects that of United States vs. Lecompte, (11 How. 124,) where the claimant had obtained an order from the Lieutenant-Governor directing the Procurador del Común to put him in possession, if in so doing no prejudice would result to third persons.
The petition solicited two leagues at the place called Llanacoco, to be located so as to include the entire prairie of that name. The Supreme Court held that the order of the Lieutenant-Governor could not be construed to signify an absolute unconditional grant of any specific land; and, as it was never presented to the Procurador, and the land had never been severed from the public domain by that officer, and no occupation was shown which could supply the deficiency by giving certainty and definiteness to the claim, it Was rejected.
If the reasoning of the Supreme Court be attentively considered,, it will be seen that they refused to treat the order of the Lieutenant-Governor as an absolute grant, for two reasons: 1st. Because it directed the petitioner to be put in possession, “ if in so doing no prejudice could result to third persons,” and the matter was referred to an officer, to whom the duty was *334confided of ascertaining the means, &c., of the petitioner and “judging of the propriety of the grant.” ' And 2d. Because the land was not severed from the public domain by the description in the concession, or by authorized survey, or by any definite occupation.
, It may, I think, be inferred from the whole opinion, that if the concession had described any tract which could be identified, and the petitioner had'occupied it, the claim would have been confirmed, notwithstanding the omission to present the order to the Procurador. In the case at bar, the Governor is ordered to put the petitioner in' possession “in conformity with what is prescribe. ( in the laws and dispositions on colonization.”
The 2d article of the law of 1824,. declares that “ those lands of the natidn,- which are not the property of any individual,, corporation or town, áre the subject of this law, and may be colonized.”
The first step to be taken by the Governor, in execution of the order, would have been to ascertain whether the land was within the colonization law — that is, whether it was the land of the nation, or belonged to any private individual; precisely as the Procurador was to ascertain whether by putting the petitioner ip possession, any injury would'result to third parties.
To construe this dispatch as an absolute grant of a specifie tract, we must suppose Castillero to have practiced on the Government a gross fraud, either by concealing or misstating the facts. For, even admitting that he had reason to believe that the mine itself was not within the limits of Berreyesa, he must have known that a tract of two 'leagues measured in all directions from the mouth of the mine, would certainly have included at portion of his land.
• The counsel for the claimants, feeling, no doubt, the force of this objection, suggested that it was intended that inquiry should be made by the Governor, and the two leagues were to be located in such a way as not to include private land. But this admission proves that the duties to be performed by the Governor ' were exactly those assigned to the Procurador del Común, in *335the case referred to ; and if the order to put in possession was not a grant in that case, neither can it- be so considered in this.
The case at bar is, in some respects, stronger than that reported; for here, the order was addressed to the Executive of a Department to whom, by the laws, in conformity to which the order was to be executed, it belonged to issue the formal title for the .land, while the functions of the Procurador were merely to inquire into and report the circumstances of the y etitioner, and to mark off and sever from the public domain the land granted.
Had the Governor and Departmental Assembly, in ignorance of the application of Castillero, and -the action of the Supreme Government upon it, regularly granted the same land to another person, in strict conformity with the colonization laws, I cannot doubt that his title, though subsequent in date to the dispatch of Lanzas, would have prevailed; and on the reception of that dispatch the Governor would either have refrained from executing it at all, or would, more probably, have allowed Castillero to take his two leagues out of the nearest body of ungranted land.
In the very ingenious brief filed by the counsel for the United States, it is observed:
“ The theory of government for the Mexican Territories or Departments was, that all the powers of government were exercised immediately by the local Political Chief or Governor, through whom the will of the Supreme Central Authority at the City of Mexico was transmitted, and by the action of which functionary, and not otherwise, it became operative on persons and things. It was a government of governments — the plan which Spain established in the beginning for the government of the Indies, and which Mexico continued to this extent without a change. Its model was the organization of an army. It was the same whether the Sovereign’s will was expressed in the forn of a general law, or some particular disposition like a grant; all were alike instructions to an inferior ofiicer. They were not binding on him until known, nor effective until obeyed — until he had done or suffered another to do that which was required.
“ The Local Representative of the National Sovereignty was *336invested with all the active powers of Government in this Department. He alone could manifest the grantor’s will, and from Mexico no more could, come than the impulse which should move him to act. In these titles, nothing was done here, even the mining title being an original grant in Mexico. The Local Representative has never acted, and therefore there has been no expression of the grantor’s will.”
In this lucid exposition of the general theory on which the vast governmental machinery of the ancient Spanish Monarchy, and measurably that of Mexico, were constructed, I entirely concur. But if it be argued that because the will of the Sover eign was ordinarily communicated to and executed by subordi nate agents, he had no power himself directly to act upon person,, and things without intervention.of the local authority, I cannot assent to' the conclusion; for the will of an absolute Sovereign can be manifested in whatever foign he may choose to adopt; and had the King of Spain seen fit to make, under his own hand • and. seal, a grant to a subject*in a remote province, I eannot suppose that the royal patent in the subject’s hands would not have been respected by the subordinate authorities, notwith standing that the title had been transferred, and the grant con summated without their intervention.
Nor is it certain that the order of' the Sovereign to a subordinate to make a grant to a subject, or do any other act in the performance in which he is interested, is a mere nullity, until known to and obeyed by the inferior officer.
If, as is admitted, the impulse which moves the subordinate to act, rightfully proceeds from the central authority — if the subordinate has no discretion in the. premises, but must obey, and his duties are purely ministerial and executive, it would seem that the sovereign disposition which required him to act, cannot be regarded as a mere nullity, even though never in fact obeyed. •
Such, I understand to have been the ruling of the Supreme Court in a recent case, where an order to the Governor that a particular island should be assigned to an individual, was held itself “to adjudicate the title;” the formal' issuing of the title-*337papers being a merely ministerial act to be performed by tbe Governor.
It is true, that, in that case, the order was received and obeyed and the title issued. But, the language of the Supreme Court is explicit, that the dispatch “operated of itself to adjudicate the title to the claimants.” This case will be more fully considered hereafter.
But whether a notice of the superior will must have been given to the local representative, of the Government, and that will must have been obeyed before it could affect the rights of persons, or the.' condition of things; or whether, as seems to be considered by the Supreme Court, the sovereign disposition, though unknown to, and unobeyed by, the local authority, had an immediate and independent operation, it is clear that by the uniform practice of the Spanish and Mexican Governments, the dispos1 tions of the sovereign authority álways contemplated the instn < mentality of the local subordinate.
If, therefore, in this case the Government had known that tl e tract solicited was public land, and that no objection whatev ,r existed to making the grant, it would have been a signal departure from its ancient and established practice to issue the grant directly to the applicant.
In treating, then, this dispatch as an ..order to make a grant, we suppose the Government to have conformed to its immemorial and. traditional usages. While to consider the-dispatch as itself conveying the title, and containing merely an order to the Governor to put the claimant in possession of land already granted to him by the direct act of the Supreme Government, is to suppose the latter to have adopted an exceptional mode of proceeding, inconsistent with that pursued in the island’s case, and with the theory on which the whole system of government was organized.
For these reasons I cannot regard the dispatch of Lanzas as a direct grant of the two leagues referred to.
’ Taking this view of the dispatch, we cannot account for the very explicit declarations of the Mexican Commissioners, that *338no grants had been made of land in California subsequent to May 13, 1846.
For, even if their researches had extended to the official correspondence of Ministers of' Relations who had held- office from the date of the declaration, and they had discovered the dispatch of Lanzas, they regarded it but as an order to the Governor to make a grant, which they knew could never have been acted on. The truth of their declarations, therefore, to the American Commissioner, is thus entirely consistent with the genuineness of the documents, while, if the dispatch be considered to import an absolute and present grant, we are driven to choose between two alternatives — one, that the Commissioners were guilty of a deliberate falsehood — the other, that the dispatch itself is a forgery. , ,
But the dispatch, though not itself a grant, is, nevertheless, evidence that the Supreme Government acceded to Castillero’s petition; and it is, at least, an order that a grant should be made to him by the Government of California, in conformity with the colonization laws, i. e. if the land were vacant and no other insuperable objection existed.
Giving then this construction to the dispatch, .let us consider its legal effect — and here we b re fortunately not without authority to guide us.
In the case of Andres Castillero vs. The United States, for the Island of Santa Cruz (23 How. 464), the claimant relied on a dispatch of the Minister of Interior, in many respects resembling that of Castillo Lanzas.
In that dispatch the Minister informs the Governor, that in consideration of the services and merits of Castillero, the President directs him (the Minister) "to recommend Castillero very efficaciously to your Excellency and the Departmental Junta, in order that before proceeding to the distribution which should be made conformably to the laws, and as is directed in the order of this date, of the lands of the islands adjacent to that peninsula, there be assigned to that individual the one which he may select of -those neatest to the place where he should reside with the troops under his orders,”
*339It will be noticed that the terms of this dispatch aTe not in some respects so strong as those of the dispatch of Lanzas.
It is not said that the President, has acceded to a petition for any particular island or tract of land. Castillero is merely " recommended very efficaciously to the Governor and Depart mental Junta,” and this recommendation is made in order that there be “assigned” to him the island he may select, &c.; contemplating, evidently the execution and delivery by the Governor of the formal title for the island so selected. In the Lanzas dispatch, the President’s assent to the petition is communicated to the Governor, " in order that he may put Castillero in possession of the land ” — an expression which has afforded room for the construction that no further title-paper was designed to be issued.
In the Santa Cruz Island case, the Supreme Court held that “the dispatch of the Government operated to adjudicate the title.” Its language is:
" They (the Governor and the Junta) were accordingly directed not to proceed to make adjudications under the previous order until the assignment of the title to this claimant was perfected, but they were not required to malee the assignment or to cause it to he made.
“To accomplish that purpose, and to carry into effect the command of the President, two things only were necessary to be done; one was to be performed by the claimant, and the other was a ministerial act. It was the claimant who was to make the selection, and if it was a proper one, near the place where he was stationed with his troops, nothing remained but to make the assignment as described in the dispatch. Emanating as the dispatch did from the supreme power of the nation, it operated of itself to adjudicate the title to the claimant, leaving no discretion to he exercised hy the authorities of the Department. Neither the Governor nor the Assembly nor both combined, could writhhold the grant after a proper selection, without disobeying the express command of the Supreme Government. Nothing therefore, remained to he done, hut ij issue the title-papers, a/nd that wan *340the proper duty of the Governor as the Executive -organ of the Department.
This language would seem too clear for misconstruction. It seems to me an express decision, that an order of the Supreme Government directing the Governor of a Department to make a grant, operates to adjudicate the title to the land specified. It could not, however, have been meant that the order itself was an absolute grant; for it was evident that the formal grant was to be made by the Governor, and besides it did not refer to any particular island, but to such island as Castillero might select; and it was only after the selection was made and found to be a proper one,-that the title attached to any particular piece of land.
If such were the effect of the order of Pesada, I am unable to perceive why the Castillo Lanzas dispatch must not be considered to have had a like operation. The direction in that dispatch to the Governor to put Castillero in possession in conformity with the laws and dispositions on colonization, confided no more discretion to him than the duty of seeing that the islán 1 selected was a proper one, confided to the Governor in the case before the Supreme Court; and if the issuing of the title.-papers in that case was a "merely ministerial act,” to be done in respect of land, the title of which had already been adjudicated to the claimant, the same view, must be taken of the action, which con struing the Lanzas- dispatch least favorably for the claimants, Governor Pico was in this case ordered to take.
It is contended that the President of Mexico had no authority to make the order for a grant contained in the Lanzas dispatch.
But, 1st. It is apparent, both from the action of the Supreme Government in this case, as well as in that of the islands on the coast, that it exercised the power.
The-presumption, therefore, arises, that it nad- the authority it exercised. “ The public acts of public officers purporting to be exercised - in an official capacity, and by public authority, are not to be presumed to be usurped, but a legitimate authority previously given or subsequently ratified, which is equivalent.” The United States vs. Arredondo, (6 Pet. 728.)
*3412. The Colonization Law of 1824, while it enjoined upon the States of the Confederation the duty of making laws or regulations for colonizing within their respective limits, committed the whole subject of colonization in the Territories to the Supreme Executive.
The 16th article of that law provides, that 'the Executive shall proceed in conformity with the principles established to the colonization of the Territories.”
In pursuance of this authority the Supreme Executive, in 1828, framed the regulations which prescribed the mode in which the colonization of the Territories should be effected.
It was from the dispositions thus made by the Supreme Executive, that the Governor and Junta in the Territory of California derived all their powers with respect to the granting of land. -
Had' the President seen fit to confide the authority to grant, either to the Governor alone, to the Prefects of the Partidas, or to local Commiseioners, he might have done so, or he might liave retained it exclusively to himself.
The regulations, in fact, provided that concessions made by the Governor should not be definitely valid unless approved by the Departmental Assembly; and, in case its approval was not obtained, the Governor was to report to tire Supreme Government for its decision.
Grants made to “ empresarios” were, by the 7th regulation, not to be held as -definitely valid until the approval of the Supreme Government was obtained.
It thus appears, not only that the authority of the Governors with respect to colonization was not immediately conferred by any law" of Congress, and owed its existence to discretionary regulations of the Supreme Executive, but that by those very regulations the Executive reserved to itself an important part of the granting power. After the adoption of the Central System, and the division of the whole Republic into Departments, the right to dispose of all the lands belonging to the nation seems to have been confided to the Supreme Executive. The Lot of 1887 gave to the President authority to sell or pledge *342them, and by his decree of 11th of March, 1842, other important and fundamental changes in the colonization laws with regard to foreigners were made by General Santa Anna.
It is said by making a grant directly to an individual, or in directing the Governor of a Department to make one, the President violated an existing law, which even an absolute monarch cannot do; for he may abrogate or modify the law, yet while it remains unrepealed he cannot violate it.
The general principle is admitted, but its application to this case is not perceived.
That the President, by the law of 1824, could have reserved to himself the whole right of making grants in the Territories, has already been shown. Such a disposition, though not in accordance with the ordinary policy of the Spanish and Mexican Governments, which intrusted the administration of local affairs to local subordinates by whom the orders of the.Supreme Government were carried into effect, would, nevertheless, have been legal and within the limits of the discretion confided to the Executive by the law of 1824.
This power he still retained, notwithstanding that he had framed general regulations on the subject for the guidance of the Governments of the Territories ; for those regulations were the mere creature of the President, and could not deprive him or his successors of the general powers given him by law, or of the right to act directly in special cases by making the grant himself, or by ordering the Governor to . do so.
The Governor of a Department had no power to grant lands by virtue of his office, or conferred on -him as such by law.
All his authority to grant was derived from the regulations of the Executive, of whom he was but the agent and the instrument. He was at all times subject to Executive instructions, and the President might at his discretion withdraw any lands from colonization, prescribe new qualifications for grantees, or in any other inanner modify the Governor’s authority with respect to grants, or direct him as to its exercise.
That he did so interpose with regard to certain Mission lands which the Governor and Assembly were about to grant is well *343known, and this Court has decided grants in violation of the order of the Executive to be invalid. The islands cases and the case at bar furnish additional instances of the exercise of the same power.
I .confess myself unable to understand how a grant by the President, still less an order to Ms local subordinate to make a grant, can be deemed such a violation of the law as no absolute monarch could commit, or indeed any violation of law whatso ever.
3d. The question is decided by the Supreme Court in the case which has been referred to.
If the Supreme Government had power to direct the title-papers to be issued, and the dispatch operated to adjudicate the title in that case, it must be deemed to have possessed the same authority, and a similar operation must be attributed to the dispatch in the case at bar.
But it is urged that a distinction should be drawn between the cases, on the ground that islands on the coast were not within the Colonization Law of 1824, and therefore might be granted directly by the Supreme Executive, but that he had no authority to act in relation to lands embraced within the provisions of that law, except in obedience to it, and in conformity with the regulations of 1828.
It has already been shown that under the Colonization Law the President had authority either directly to grant, or to order the Governor to grant, public lands in the territories. But his power to grant islands was also derived from the same law, and in making the grant of the island of Santa Cruz, the validity of which has been affirmed by the Supreme Court, he acted in strict obedience to it.
It will also be seen that the judgment of the Supreme Court is not based on the supposed existence of any authority in the Executive not derived from the law of 1824; and also that his right to repeal' or modify at his will, in a particular case, his own general regulations which imposed rules on the- subordinate Jocal authorities, is impliedly recognized in the decisions referred to.
*344The 4th article of the law of 1824 provides, that “ the lands embraced within the twenty leagues bordering on any foreign nation, or within ten leagues of the seacoast, cannot be colonized without the previous approbation of the Supreme Executive power.”
As by the previous section of the law, the Congresses of the various States were directed to enact laws and regulations for colonization within their respective territories, while by Art. 16 a similar duty was enjoined upon the Supreme Executive with respect to lands within the territories, it is obvious that the 4th article was intended chiefly to restrict the power of the States rather than that of the Executive, whose assent to the grant was all that was required.
In the case of The United States vs. Arguello, (18 How., 548,) it was held by the Supreme Court that the " colonization” spoken of in the 4th article must be construed to mean colonization by foreigners, and not the distribution of. lands to individuals and families.
The power of the Governors of California to grant lands within the ten littoral leagues might perhaps have been sustained, even if the 4th article be construed to apply to grants to individuals, on the ground that the absence of any express prohibition in the regulations, and the constant exercise of the power with the full knowledge of the Supreme Government, authorize the prelumption that the approval required by the 4th article was in act given.
However this may be, it is clear that the Governors of California .did not assume to grant the islands on the coast’without the previous permission of the Supreme Government. Application for such permission was accordingly made, and it was final h communicated to the Departmental authorities in the dispatch of Pesada of July 20, 1838.
When, therefore, the President ordered a grant of an island tc be made, which order the Governor obeyed by issuing the title-papers the grant was in strict conformity with the colonization laws.
Foi that law confided to the Supreme Executive, as has beeB *345observed, the whole subject of colonization within the territories, nor did it impose any limits on the exercise of his discretion, except that the colonization was to be conducted according to the principles established by the law.
Those principles were of a general character, and fixed nothing as to the particular agencies or mode to be adopted in conferring the title upon the colonist.
In the case of lands within the ten littoral leagues, the law itself forbade their colonization without the previous approbation of the Supreme Executive power. The general regulations therefore, by which the Supreme Executive authorized the Governors and Juntas ofthe Departments to grant public lands, were never construed to authorize them to grant the islands on the coast, and as observed by the Supreme Court, the power to make such grants was neither claimed nor exercised by the Departmental authorities prior to the 20th day of July, 1838, when the “previous- approbation of the Supreme Executive” required by the law was communicated to them.
That approbation having been thus obtained, the Departmental authorities proceeded to grant; and in so doing, acted in precise conformity with the colonization laws.
It had appeared to this Court, that the effect of that dispatch was simply to communicate to the Departmental authorities the assent of the Supreme Executive that the islands should be granted, and thus to bring them within the general regulations which prescribed the mode in which all grants should be made.
Those regulations required the concurrence of the Departmental Assembly to give definitive validity to the grant by the Governor; but inasmuch as the Supreme Court had decided that even without the concurrence the grant was valid, unless the grantee’s right had been forfeited by abandonment, it seemed to me that a similar rule should be observed with respect to the .grants of islands, which, by the previous assent of the Supreme Executive, had been brought within the general regulations.
• This view, however, the Supreme Court decided to be erroneous, and held that the dispatch prescribed a new rule on the subject, and that the general regulations did not apply to it. *346The mode of granting indicated in the dispatch of Pesada was therefore, to be strictly followed, and inasmuch as the Depart mental Assembly Bad not concurred, the grant to Osio wa* adjudged to be void.
But the reversal of the decision of the District Court on this point, in no way shows that the Supreme Court did not consider grants of islands, when made in pursuance of either the general or special regulations of the Executive, as not made under the colonization law.
On the contrary, it appears to me manifest, that neither in the case of Osio, nor in that of Castillero, do the Supreme Court base their decision on the idea that grants of islands were not within the colonization law of' 1824; but that they reject the first claim, because in their opinion the grant was not made in the manner prescribed by the Executive, to whom that law committed the whole power over the subject, and they confirm the second claim because the Executive instructions were followed. It is explicitly stated in the opinion, “ that it is immaterial whether or not the power to grant the islands on the coast was vested in the Governor,” (i. e. by the General Executive regulations of 1828), for the effect of the dispatch “ was to repeal the previous regulations on the subject, and to substitute a new one in their place.”
As this power of making regulations, with respect to colonization in the territories, was conferred, in terms, on the Supreme Executive, by the Colonization law, and was precisely that which it exercised when the General Executive regulations of 1828 were framed, I confess myself unable to perceive how a grant of an island on the coast, made in obedience to Executive instructions, was not, in every respect, a grant under the Coloni zation laws, nor can I discover any foundation for the distinction attempted to be drawn between the case at bar and that of the island of Santa Cruz. The lands, in both cases, were open to grant under the general law; and even, if the granting of the islands on the coast to individuals be considered to be embraced within the provisions of the 4th article, and that grants of lands within the littoral leagues were not, the only distinction between *347the eases would be, that in one the previous assent of the Executive was necessary, while in the other it was not. Each, when regularly granted, must be held to have been granted under the colonization laws. When, therefore, in the Santa Cruz Island ease, the Supreme Court held that the dispatch of the Minister, ordering one of the islands to be assigned to Castillero, “operated to adjudicate the title,” the same construction must be given to the dispatch in this case, which states that the President has acceded to a petition for two leagues, and orders the Governor to put the petitioner in possession.
As, then; the Lanzas dispatch “ operated to adjudicate the title” to the claimant, he must be held to have acquired an inchoate title, which, if founded on such equitable considerations as would •have bound the former Government to complete it by issuing the formal title-papers, this Government is equally bound tc respect.
Had the claimant, been an ordinary colonist, and relying on the action of the Supreme Government on his petition, settled upon and occupied the land, building a house upon and cultivating it, and had the United States found him in the enjoyment of an undisputed possession, it cannot, I think, be doubted that his possession would have been undisturbed and his title confirmed, even though he had neglected to obtain from the Governor the formal grant.
But no such possession was taken in this case, nor was the concession received in California or even known to have been made, until after the subversion of the Mexican authority.
The question therefore arises: Were there any antecedent equitable .considerations on which the concession was founded, such as would have bound the conscience of the Mexican Government to perfect it ?
That an antecedent consideration, such as the patriotic and public services of the grantee, is one which a Court of Equity cannot disregard, has been expressly decided by the Supreme Court.
In the case of Fremont vs. the United States, the Court says:
“The grant was not made merely to carry out. the policy of *348the colonization laws, but in consideration of the previous public •and patriotic services of the grantee; and although this cannot be regarded as a money consideration, making the transaction a purchase from the Government, yet it is the acknowledgment of a just and equitable claim, and when the grant was made on that consideration, the title in a Court of Equity ought to be as firm and valid as if it had been purchased with money on the same conditions.” 17 How. 558.
If, then, antecedent considerations of this nature are to be looked to, in determining whether the former Government was under any equitable obligation to perfect the title of the claimant, it is perhaps not easy to imagine a case where, the merits of the petitioner and the consideration rendered by him for a .small tract of land in a remote Department could be greater.
The immense value of the discovery .he had made to the great mining interests of Mexico, need not be dwelt upon. Our own experience in California enables us at once to appreciate how indispensable is an ample and cheap supply of quicksilver to the development of mines of the precious metals. . But to Mexico the discovery was, as justly observed by one of the counsel for the claimants, “the unsealing of a hidden fountain of wealth, as precious to her as the rains and dews and living streams are to the nations that live by tillage.”
Eor years it had been the policy of Mexico to stimulate, explorations for and to encourage the working of quicksilver mines. By the laws of February 20, 1822, and 7th October, 1823, which imposed duties on gold and silver, quicksilver was expressly exempted from contribution.
in 1842, the Junta de Fomento was established, and empowered “to fix the mode in which the working of quicksilver mines was to be supplied, rewarded, stimulated and-protected.”
By the decree of May 24, 1843, rewards of $35,000, and of $5 per quintal, were promised to successful miners; and by the decrees of July 5th and September 25th of the same year, the Junta was empowered to work, to supply and protect quick silver mines, and te cause researches for them to be made throughout the Republic.
*349When, therefore, Castillero announced the discovery of a mine surpassing in richness that of Almadén in Spain, upon which Mexico had so long been dependent, and desired a grant of two leagues in a Department where land was commonly distributed gratuitously in tracts five times as large, he had equitable claims upon the Government far surpassing “the public and patriotic services of Alvarado," which the Supreme Court declares to have been an equitable consideration, as strong as if the grant had been purchased with money.'
Compared with the service rendered and about to be rendered to the Mexican nation by Castillero, the consideration on which the ordinary colonization grants were founded was insignificant; for that consideration merely consisted in building a house, cultivating a few acres of an immense tract, and suffering wild cattle to roam at will over the remainder.
The fact that-he was working the mine showed that Castillero had already effected a settlement upon the land, and its further development insured an accession to the population of the ■ country far greater than -could have been obtained by any other disposition of the public domain.
The purpose for which he sought the land, apprised the Government that it was of a kind not usually fit for cultivation, for it was required to supply wood for his burnings. In thus assisting his enterprise, the nation had as great an interest as Castillero himself, for it was the attainment of an object to which their attention, their efforts, and no inconsiderable portion of their revenues had long been devoted.
It has appeared to me that all these circumstance^ constitute an equitable consideration for the inchoate title dr concession obtained by Castillero, and that they were sufficient to create an equitable obligation on the former Government, and therefore, on this, to complete and make good the inceptive rights he had acquired.
It is urged by the counsel for the United States, that even if . the Castillo Lanzas dispatch be considered a grant, it nevertheless is void, because no possession of the land was given before the 7th of July, 1846, when the Mexican authority in California was *350subverted, and tbe United States acquired tbe land by tbe adverse title of conquest.
It is not denied that, as maintained in the brief of tbe counsel for tbe United States, in questions of prize or no prize, tbe liability of tbe property captured to condemnation depends upon tbe fact whether tbe possession and actual control of it have passed from tbe bands of tbe enemy to those of a neutral.
Nor is it questioned that, where tbe territory is ceded by one Sovereign to another, tbe nationality of tbe inhabitants of the ceded territory is not changed until tbe stipulations of tbe treaty are executed by a formal delivery given, and by possession taken.
It is also admitted that, by the Roman law, and by most systems of jurisprudence, the property in a thing cannot be transferred without a delivery of tbe possession of the thing, either actual, or feigned and constructive; and that ordinarily, he who first’ obtains possession shall bold tbe thing even as against a prior purchaser, to whom it has not been delivered. In tbe transfer of land tbe same principle prevailed at tbe common law, and a symbolical delivery of tbe land, or livery of seizin, whs indispensable to render a feoffment operative.
This, however, is now unnecessary in conveyances under tbe Statute of Uses.
In tbe grants made by tbe Governors of California, we ac eordingly find that “tbe judicial delivery of possession by tbe corresponding Judge ” was always contemplated. This proceed ing would seem to have been designed for a double purpose : 1st. To complete tbe transfer of tbe property, by a formal delivery or tradition of tbe thing, thus adding tbe jus in re to tbe jus ad rem; and, 2d. To designate and sever from tbe public domain tbe tract granted by measuring its extent and establishing its boundaries.
Whether, if tbe boundaries are distinctly designated in tbe grant, tbe judicial delivery of possession was in strictness necessary to complete tbe right of property in tbe grantee, may be doubted; for at common law tbe King’s grant was bold to im *351port livery of seizin, and the same principle is said to prevail at civil law. .
But whether technically necessary or not, it is settled by the decisions of the Supreme Court, that the want of a judicial delivery of possession is no obstacle to the' confirmation of a grant of lands in California.
The occupation and settlement which, in the Louisiana and Florida cases, were considered to constitute the true grounds of the claimant’s equity, were required by the Supreme Court to be shown, not because the technical rule required a formal delivery of ', possession to complete the transfer of the right of property, but, because the petitioner, by occupying and cultivating his land under an inchoate title, and an implied promise of a grant, had rendered to the former Government a consideration which bound its conscience and that of- its successors to perfect the title.
The question then, in this and other cases, is not whether a formal and technical delivery of possession has been made/ but whether a consideration has been given for the grant, either antecedent by public services, the payment of money and the like, or subsequent, by occupation, settlement, &c., which in equity required the. former Government to convert the inchoate title actually obtained into a perfect title. If, at the acquisition of the country, the conscience of the former Government was bound by this obligation it is equally binding upon us; and the claimant, whether a resident or a foreign Mexican, has a right of property which the United States have agreed by the treaty to respect.
Whether the consideration rendered, and the equitable claims on the bounty of the Mexican Government possessed by Castillero, are sufficient to create such an obligation, is a question which, perhaps, depends rather on the spirit in which his claims are looked upon, than upon any definite rule of law. It has appeared to me, as before stated, that the consideration rendered by him to the Mexican Government did not merely constitute a claim upon its bounty; but that when he had obtained the assent oi the Supreme author ity to a grant of a specific trflet *352of land, when orders had been issued to make him a grant and to put him in possession, the execution of which was prevented solely by the outbreak of war, the inchoate title so obtained ought to be respected by the United States.
But if the fact of possession and occupation be insisted on as indispensable, it is to be remembered that the land solicited and ordered to be granted to Castillero, was two leagues “on the land of his mining possession.”
It is not disputed that early in December, 1845, he had occupied and worked the mine.
Possession of it had been given to him by the Alcalde, in a loose and informal manner, it is true, but still sufficient to give an official sanction to his occupation, more than six months before the conquest of the country; and from December, 1845, he and his assigns have continued to hold it. As, then, the mine was within the two leagues solicited, and as he had already taken possession of, and was working it, he may, perhaps, be considered, after the order of Lanzas was issued, to have been in possession of the lands referred to in that order.
In no cases was any other possession taken by the California rancheros of the large tracts — sometimes eleven square leagues in extent — granted to .them, than by building a rude house of abode, cultivating a small portion of the land, and stocking the remainder with a greater or less number of wild cattle or horses.
I am aware that in this view of the claimant’s equities, I have the misfortune to differ from the Circuit Judge.
But on the best consideration I have been able to give to the subject, it has appeared to me not only warranted by the decisions of the Supreme Court, but in accordance with the dictates of the enlarged, and, so to speak, generous justice, which should animate a great and a' conquering nation in dealing with the rights of the vanquished.
But it is said that if Castillero obtained from the Supreme Government a grant of two leagues on his mining possession, it proves one of two propositions, — either that he was guilty of a gross fraud in suppressing the fact, that such a. grant would include private land, or that the Supreme Government committed *353a violation of law equally gross, in attempting to grant the lands of private, individuals.
■ Had the title set up been a formal and absolute grant of twp leagues, to be measured in every direction from tbe mouth of the mine, the. observation would have possessed much force. But such is not the import of the Lanzas dispatch ; on the eon . trary, it directs the Governor to put the petitioner in possession of the land- solicited, “ in conformity with the laws and disposi-, tions on colonization,” a direction which rendered it certain that; in the location of the grant, private rights' would be respected.’ Had the Supreme Government known that a tract of two leagues, measured in every direction from the mouth of the mine, would include private land, the precautions used in framing the order to the Governor would have sufficed for the protection pf the owner; and the dispatch is, in effect, but the expression of the President’s assent to a grant of two leagues on land of the petitioner’s mining possession, and an order to the Governor to execute the grant; provided, and so far as it could be done, without .injury to third persons;
It cannot, therefore, be inferred, from this dispatch, either that Castillero practiced a fraud on the Government, or that the latter committed, or intended to commit, a violation of any private rights whatever.
The last objection to the validity of the Lanzas dispatch which I shall notice, is that contained in the seventh division of the printed argument filed by the counsel for the United States.
The same point had been raised and fully considered by the Court in the case of Palmer vs. The United States. As the decisions of this Court have not been reported, it has been thought most convenient to append that opinion to this, adding toit such further observations as may seem appropriate:
“ Before proceeding to an examination of the merits of this case, a general objection to the validity of the grant must be considered. The grant purports to have been executed on the 25th of June, 1856, subsequently to the declaration of war between the United States and Mexico.
*354It is contended, on the part of the United States, that on general principles of public law, grants made flagrante hello when conquest has been set on foot, and actual occupation is imminent and inevitable, have no validity against the subsequent con queror. The question has not heretofore been presented to this Court. It has been discussed with much ingenuity and ability.
It is urged that in the conduct of war, and the determination of its objects, the political department is supreme; and that the judiciary are bound by the view taken by the political branch of the Government; that, although Congress has alone power to declare war, to the Executive is given the right of shaping it to its ends, or of declaring its objects.
To ascertain its objects, resort must, therefore, be had to ■ Executive acts, and as the Executive acts in this case unequivocally indicate that a principal object of the war was to acquire California, that acquisition was thus brought within the scope of the war, and must be so regarded by the Courts.
To this point, the case of Harcourt vs. Gaillard, (12 Wheat.,) is cited.
Such being the object or scope of the war, it is urged that the intended conquest of California embraced not only the establishment of sovereign rights in the Territory, but also the acquisition of the public property within it.
That the proprietary rights to be acquired by the conquest are as essential, though not as important a part of the fruits of, conquest, as the political, the commercial, and other advantages proposed to be obtained, and that no part of these objects of the conquest is to be ignored.
The conquest of California, including the acquisition of the public domain, having been thus shown to have been the object, or brought within the scope of the war, it was urged that any grants of public land made after the conquest was projected, and when it was about to be effected, though before it actually occurred, must be deemed to be in fraud of the rights of the incoming conqueror, and invalid as against him.
The foregoing statement is believed to present the outline cf the argument submitted on the part of the United States.
*355' Both the premises and the conclusion must be examined.
If the conquest of California was the object of the war, it must be so considered because that object was avowed by competent authority when war was declared; or because" it was made the object of the war, after its commencement, by the political branch of the Government.
It may be admitted that this Government had long regarded California, or the Bay of San Francisco, as an important and desirable acquisition. The instructions of the President to Mr. Slidell indicate the wish of the Executive to obtain it by purr chase and cession, as Louisiana and Florida have been acquired.
' It by no means follows tha; the intentiou to obtain it by force of arms, or conquest, can be attributed to Congress,.still less that. such was its object or motive in declaring war.
The law by which war was declared, recognizes it as previously existing by the act of Mexico; and it is known that hostilities arose .by.the- invasion by Mexico of a territory claimed by the United States to be within their limits. Such was not, therefore, the object for which war was declared, or its existence recognized —nor could it constitutionally haye been.
It is observed by Mr. Chief Justice Taney, in Fleming vs. Page, (9 How., 614,) “ The genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purpose of aggression or aggrandizement, but to enable, the General Government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acqui-" sition of territory.”
As a limitation upon the power of Congress, this distinction, may, practically, be unimportant. As every war in which the country may be engaged must be regarded by all branches of the Government, and even by neutrals, as a just war; and as nations can readily cloak a spirit of rapacity and aggression under professions of justice and moderation, it is at all times' easy, should oiir country be actuated by such a spirit, to 'declare an aggressive var, to be undertaken in self-defense and an in*356tended conquest to be desired only as a compensation for past or security against future injuries.
; But tbe distinction is important when a Court is asked to presume that conquest was the object of the war.
Under our Government,.at least, such a presumption cannot be indulged.
' The conquest of California being thus shown not to have been the object for which war was declared, we may next inquire whether, by the acts of the Executive under its power to conduct the war, it became such, or was brought within its scope, in the sense in which the phrase was used at the bar ?
In his annual message to Congress, in December, 1846, the President distinctly states that the war originated in the attempt of Mexico to re-conquer Texas to the Sabine. After adverting to the considerations which had induced the Executive to interpose no obstacles to the return of Santa Anna, the latter being niore favorably disposed to peace than Paredes, who was then at the head of affairs, the President observed: ‘ The war has not been waged with a view to conquest, but having been commenced by Mexico, it has been carried into the enemy’s country, and will be vigorously prosecuted there, with a view to obtain an honorable peace, and thereby secure ample indemnity for the expenses of the war, as well as our much injured citizens, who have large pecuniary demands against Mexico.’
Similar declarations are frequently and emphatically repeated by the President in various communications to Congress, and in the correspondence between the American Commissioner and the Mexican authorities.
The object of the war, therefore, as indicated by executive acts and declarations, was not conquest; or, if conquest,' it was that of a safe and honorable peace.
It is true, that after the military occupation of California, and after our arms had been everywhere successful, and perhaps at thé commencement of hostilities, the Executive and the nation may have confidently anticipated that by the treaty of peace we ■ would acquire California. As Mexico was known to be impoverished, and distracted by civil dissensions, it was obvious *357that the only indemnity she could afford us for the expenses of the war was the cession of a portion of her territory.
The instructions of the Secretary of State to Mr. Trist, show that the extension of the boundaries of the United States over New Mexico and Upper California, for a sum not exceeding' $20,000,000, was a condition sine qua non of any treaty.
The extraordinary success of our arms, the fact that we already held possession of a great part of the territory of the enemy, and virtually of his capital, our great expenditures of blood and treasure, entitled us to retain a portion, at least, of our conquest ■as the only indemnity we could obtain. But we were willing to restore a considerable part of our possessions, and to pay for that retained by us a large amount of money.
But such views and intentions on the part of the Executive, as to the condition on which the war should cease, are very different from waging it with a view to conquest. The war cannot, then, in any just sense, be deemed to have been declared by Congress, or conducted by the Executive, with a view to conquest.
The power of the President in the conduct of the war was that of. a commander-in-chief of the army and navy. He had authority to direct and control military operations. As part -.of the treaty-making power, he could .determine when and on what conditions a treaty of peace should be made. But he had mo power to impress upon the war a purpose different from .that with which it was commenced, and which, as Mr. Chief Justice Taney, declares, Congress could not constitutionally entertain. ‘ The law declaring war,’ observes the same great authority in the case above cited, 'does not imply the authority to the President to enlarge the limits of the United States by subjugating the enemy’s country. The United States, it is true, may extend its boundaries by treaty or conquest, and may demand the cessation of territory as the condition of peace, to indemnify its citizens for the injuries they suffered, or to reimburse the Government for the expenses of the war.
‘ But this can be done only by the treaty-making power, or the legislative authority, and it is not a part of the .authority *358conferred upon the President by tbe declaration of war. His duty and bis. power are purely military. As commander-in-chief, be is authorized to direct tbe military and naval forces placed by law at bis command, and to employ them in tbe manner be may deem most effectual to harass and conquer and subdue tbe enemy., He may invade tbe hostile country, and subjugate it to tbe sovereignty and authority of tbe United States. But his conquests do not enlarge tbe boundaries of tbe United States, nor extend tbe operations of our institutions and laws -beyond tbe limits before assigned them by tbe legislative power.’
It is true that in tbe case in which these observations are made, tbe point to be determined was, whether enemies’ territory, which in tbe course of hostilities bad come into our military possession, became a part of tbe United States, and subject to our general laws. But they are important to this case ¡as defining tbe power of tbe President in war, to be merely that of tbe military commander-in-cbief; that territory can be acquired only by tbe treaty-making and legislative authority, and, consequently, that tbe fact that hostilities are by tbe military authority directed against a particular portion of tbe • enemy’s territory, cannot be said to make the acquisition of that . territory tbe object of tbe war.
It is therefore apparent that tbe war with Mexico cannot br> regarded by tbe judicial department of this Government as com menced, or conducted, with tbe object of effecting tbe conquest of California.
The most that can be said is, that its military occupation was • effected as a means of crippling and subduing tbe enemy, and with tbe expectation, on tbe part of tbe Executive, that we would retain and finally insist upon tbe cessation of tbe territory so subjugated by our arms as an indemnity for our injuries and expenses..
. The natiire and amount of indemnity to be* required, tbe extent ' of territory to be ceded, depended upon tbe will of tbe Senate and tbe Executive as tbe treaty-making power, and until that will was expressed in tbe treaty, tbe intention to effect tbe per tuanent acquisition of all California cannot be attributed to tbe *359political power, any more than a similar intention with regard to those conquests which at the close of the war was restored.
If, then, it were a principle of public law that all alienations of públjc domain by a sovereign are invalid as against an .enemy who has commenced or is prosecuting a war, with the object of conquering the territory within which the property is situated, or who has set on foot expeditions for the purpose, with sufficient power to attain the end, as proved by the event, the facts of this case would hardly admit of its application.
But assuming the facts as contended for by the United States, we. proceed to inquire whether such a rule of law exists. The right of Mexico to dispose of her public domain in California before the war is admitted. It is not denied that that right ceased, as against the United States, when the latter effected the conquest of the country, and subverted the Mexican authority.
. If it ceased before the actual conquest and displacement of the' Mexican authority, it must be because the determination of the United States to effect the conquest, and the making preparation to carry out its determination, gave to the latter some inchoate or inceptive right to the territory subsequently conquered, and the title consummated by the conquest relates back by a kind' of fiction to the date .of its inception.
We have been unable to discover any trace or intimation of such a doctrine in any writer on the laws of war.
The rights derived from conquest are derived from force alone. They are recognized because there is no one to dispute them, not because they are, in a moral sense, rightful and just. .The conquest of an enemy’s country, admitted to be his, is not, therefore the assertion of an antecedent right.
It is the assertion of the will and the power to wrest it from him.
Even where a conquest is effected to obtain an indemnity justly due, it is not the assertion of any antecedent right to the particular territory conquered, but only of the general right to a compensation for injury.
The right of the conqueror is, therefore, derived from the conquest alone. . t originates in the conquest,' rot in the intention *360to conquer, though, coupled with the ability to effect his purpose, nor even in the right to conquer as means of obtaining satisfaction for injury.
It is the fact of conquest, not the intention or power to conquer, which clothes him with the rights of a conqueror.
The rights acquired by the conquest are temporary and precarious until the jus post liminii is extinguished; and if a reconquest is effected, the rights of the sovereign who has temporarily been displaced revive, and are deemed to have been uninterrupted.
The term 'title by conquest’ expresses, therefore, a fact and not a right. Until the fact of conquest occurs, the conqueror can have no rights. To affirm that a title acquired by conquest relates back to a period anterior to the conquest, is almost a contradiction in terms.
Until, then, the conquest is effected, the rights of the existing sovereign remain unimpaired. He can, therefore, dispose of the public property at his discretion, nor can that right be effected by the determination of an enemy to conquer the territory, and by his preparations .for the purpose, though the event "may demonstrate the conquest to have been practicable.
The case of Sarcourt vs. Q-aillard has been cited by the counsel of the United States in support of the doctrine contended for by them. •
The distinction between that, case and the case at bar is obvious.
In Harcourt vs. Gaillard the question was as to the validity of a grant by a British Governor of land within a territory claimed to belong to the United States. As our Government had asserted and maintained by arms its title to the disputed tract, the Judicial Department were not at liberty to declare the claim to be .wrongful, and- to recognize the right of any other Sovereign over the territory in question.
The title of the United States was in no sense acquired by conquest, Her title was antecedent to the war — it was merely maintained by arms and recognized by the treaty of peace.
The question presented was,' in the language of the Court. *361‘one of disputed boundaries, within which the power that sue' ceeds in war is not obliged to recognize as valid any acts of ownership exercised by his adversary.’
Had the claim been that of conquest alone, the case would have presented, says the Court, more difficulty. ‘ That ground would admit the original right of the Governor of Florida to grant, and if so, his right to grant might have continued until the treaty of peace, and the grant to Harcourt might, in that case, have had extended to it the principles of public law which are applicable to. territories acquired by conquest, whereas the right set up by South Carolina and Georgia denies all power in the grantor over the soil.’
The distinction is made still more apparent in a subsequent part of the opinion of the Court: ‘ War is a suit prosecuted by the sword; and-where the question to be decided is one of original claim to territory, grants of soil made flagrante hello by the party, that fails, can only derive validity from treaty stipulations. It is not necessary here to consider the rights of the conqueror in case of actual conquest? (P. 528.)
The latter is precisely the question to be considered in the case at bar.
The argument of the counsel for the United States can, therefore, derive no support from the case referred to.
It is proper, however, to observe that the case of Harcourt vs. Gaillard, was not cited by the counsel as directly in point. It was thought to establish that -all grants of territory brought within the scope of the war are invalid; that the case of disputed boundaries presents one illustration of the general principle, while the case at bar furnishes another.
It has seemed to me, however, that the principle of that decision relates exclusively to the case of disputed boundaries, and that the distinction is clearly drawn between that case.and one like the present; that between them the obvious difference exists that the former is a case of ‘ original claim to territory,’ while the other is ‘ one of actual conquest.’
It is said, on the part of the United States, that if a belligerent can, after a dec laration of war, grant any portion of his property *362he can grant the whole, and thus might, by granting himself away, escape responsibility. The case supposed is an extreme one. It can rarely occur that a nation will seek safety by self-destruction..
But in such case the adversary might refuse to recognize such a voluntary suicide as affecting his rights. For the purpose of obtaining satisfaction he might justly treat the nationality sought to be extinguished as still existing. But in all Courts his rights would be enforced against the successor or grantee of the extinguished Sovereign.
The question would then be purely political, for the new Sovereign, whether to carry on the war or accede to the demands of the enemy of his grantor, and for the latter whether to prosecute the war against the new Sovereign. Little aid, however, can be derived from the consideration of such extreme and improbable cases.
It is further urged, that the doctrine contended for on behalf of the United States is in the prize law.
It may, perhaps, be admitted that a theory of maritime prize formerly obtained, whioh assumed that a belligerent has a vested right by the declaration of war in all sea-borne private property of .the other belligerent; that no such property can be the subject of lawful sale; that all contracts of sale touching belligerent property of any sort, though valid on land, are invalidated by the mere fact of such property being embarked on the ocean, and that if transferred to a neutral after the declaration of war it is a lawful prize to the other belligerent.
Such is not now the received law of nations. It is now admitted that the bona fide sale of the ships of belligerents to neutrals in time of war is lawful and valid unless made in transitu.
In the Johanna Emilia, 29 Eng. L. & Eq. R., p. 562, Dr. Lushington says: ' It is not denied that it is competent for neutrals to purchase the property of enemies in another country, whether consisting of ships or anything else. They have a perfect right to'do so, and no belligerent right can override it'
*363Such is the doctrine maintained by our Government. See opinion of Mr. Attorney-General Cushing, October 8, 1855.
If a sale to a neutral of a ship in transitu is held invalid as against a belligerent, it is not by reason of any inchoate right or lien acquired by the latter by the mere declaration of war, or because the right of the.enemy to dispose of his property is invalidated by the declaration of war, but because a sale of a ship - in transitu is taken as proof of collusion and fraud, and as showing that no absolute transfer has, in fact, been made. The soundness of even this rule is doubted by the Attorney-General in the opinion referred to. •
A sale of a ship not in transitu by a belligerent to a neutral is valid as against a subsequent captor, no matter how imminent the danger of capture would have beep had she remained enemy’s property, and no matter what may be the number of hostile fleets fitted out to cruise against her and similar property of the belligerent.
It appears, then, that the law of nations, with regard to prize of war, does not recognize the principle contended for.
It is urged, however, that this principle lies at the foundation of the doctrine of post liminii.-
It is argued that a state of war implies the reciprocal denial, - by each belligerent, of all rights on the other.
That each relies upon force alone — force to retain or force to take.
They are thus in sequalijure.
The principle, therefore, by which, on a reconquest, the original title revives, and is deemed to have been uninterrupted, is founded on the presumption that the displacéd Sovereign intended a reconquest when he was displaced, and his title on a reconquest relates back to the time when he is presumed to have formed such intention. If, then, (it,is argued,) the title by reconquest relates back to the time of the formation of the intention to reconquer, the title by conquest must relate back to a similar period; for a state of war implies the negation of all antecedent right on either side. The only difference between the cases being, that in the case of a reconquest, the intention to *364reconquer is presumed until the jas post liminii is extinguished, -while in the case of conquest that intention must be shown by the political acts and declarations of the conqueror.
The argument is ingenious, but the premises are, I think, erroneous.
It is assumed that a new title is acquired by a Sovereign who recovers territories from which he has temporarily been driven.
On the contrary, he holds it by his original title, which could only have been displaced by a permanent conquest. But the fact that he recovers the territory, proves that what seemed a conquest was but a temporary dispossession. The invader, therefore, acquired no rights, nor did the original sovereign lose any. He continues to rule, not by a newly-acquired title which relates back to any former period, but by his ancient title, which, in contemplation of law, has never been divested.
Nor is it true that waT is the reciprocal denial of all rights by the belligerents, with respect to the. territories of either.
A conqueror does not deny that the territory seized was, at the time of the conquest, the territory of his enemy, any more than the attaching creditor denies the property attached to be that, of his debtor.
On the contrary, he- asserts it to be his. He seizes it as -the property of his enemy, and because it is his. He asserts no antecedent title in himself. He declares, not that the territory .was his, but that he will make it his by conquest.
The title or right acquired by a conquest is not the same as that of the original possessor.
It is temporary and .precarious, and ceases the moment the conqueror' is expelled. If‘ indeed, a title by conquest can be said ever to have' existed when the event has proved that the attempted conquest could not be maintained. .
The title of the original owner is wholly unaffected by 'the temporary dispossession; and even during his dispossession, it is treated as valid and subsisting, until the jus post liminii has been extinguished.
The extinction of the post liminii is necessary to ripen the *365temporary and merely possessary right of the conqueror into such an ownership of the territory as neutrals can recognize.
If these views be correct, the case of a' reconquest does not present the instance supposed of a title relating back to the • period of the formation of the intention to reconquer. '
. But the further discussion of this subject would require more time and space than can be devoted to it.
It might, I think, be demonstrated, that a rule which supposes all rights of a Sovereign, with respect to territory subsequently ; conquered, to cease as against the conqueror, not when war is > declared, but when the war is prosecuted with the object of con quest, when expeditions are fitted out for the purpose, and when the conquest is ' imminent and inevitable,’ is not susceptible qf - practical application as a rule of international law.
That those rights must continue until the date • of actual conquest, or of the treaty of cession, or else must cease at the declaration of war, and that an attempt to estimate the ‘immi : nency ’ of the conquest at any intermediate period, or to try the validity of the exercise of sovereign rights, by calculating the chances of war at a particular moment, would be impracticable and illusory.
On the whole, I am of opinion that the right of Mexico to grant her public domain in California, continued until the con quest of the country by the United States.
It is further urged, on the part of the United States, that grants made after the 13th May are not protected by the treaty of peace, because such was not the intention of the parties.
That the Mexican Commissioners who negotiated the peace, and who represented the claimants as well as the Mexican Government, solemnly, and after special inquiry, declared that none such existed; and that the treaty was negotiated on the faith of this declaration.
■ It is admitted that such a declaration was made, and embodied in the project of the treaty submitted to the Senate.
Had this declaration been contained in the treaty as adopted and ratified, it might very possibly have been regarded as a *366covenant or stipulation that no such grants should be deemed > valid by the United States. • •
• But the clause containing,it was Struck out by the Senate, not by the general vote which struck out the. whole of the 10th 'article, of which this declaration formed a part, but by a distinct vote upon the question whether this particular clause should stand as a part of, the treaty.
The Court cannot assume, therefore, that a treaty was assénted to by. the United States on the faith of this declaration by Mexico, else why strike it out ? It may, not unreasonably, be supposed that the Senate refused to allow the declaration to remain, because they were willing that graftts made after the 13th May, if any such there..wefe, should be submitted to the Courts, and rejected or confirmed, as might be just.
But. assuming that the treaty was concluded on the faith of this declaration, the rights of an Individual to his property cannot be affected by it.
The stipulation in the treaty by which the property of the inhabitants of the ceded territory was secured, conveyed to them no additional rights. ‘ An Article to secure this object, so ' deservedly held sacred in the view of policy as well as of justice and humanity, is always required and never refused.’ 12 Wheat., 536.
' When such an article is submitted to the Courts, the inquiry is, whether the land in controversy was the property of the claimant before the treaty.’ United States vs. Arredondo, (6 Pet., 712.)
If, then, the land in controversy was the private property of the. claimant when the country was acquired, it must have remained such, though no treaty had been made. The United States do not claim to have acquired the ownership of any other-'property than the public property of the enemy, nor could they justly have demanded that Mexico should assent by the treaty to the confiscation of any property the right to which was vested in private individuals.
If, then, the United States have been wilfully or accidentally ■. deceived, as to the amount of property held in private ownership *367in the ceded territory, they may have' a right to demand a return of some portion of the pecuniary equivalent paid by them.
The fraud or mistake of the Mexican Commissioners can have no effect upon a private right held sacred by the laws and usages of all civilized nations, which was not derived from the treaty, and which, had it been known to exist, the United States would have been bound to respect.
' These observations’are made with reference to the general proposition maintained at the bar, viz., that the declaration by ' Mexico that no grants had been made subsequent to May 13, 1846, invalidated all such grants to the same extent as if a stipulation to that effect had been embodied in the treaty.”
In the brief filed in the case at bar, the Court is'invited to review the grounds of the foregoing opinion; and the question is discussed by the counsel of the United States with characteristic ingenuity and ability.
The authority Lchiefiy relied on in support of the position taken by the counsel for the United States, is Bynkershoek.
“We make war,” says the author, “because we think that our enemy, by the injury he has done us, has merited the destruction of himself and all his adherents; as this is the object of our warfare, it is immaterial what means we embrace to accomplish it.” * * * “A nation which has injured another, is considered, with everything that belongs to it, as confiscated to the nation that has received the injury. To carry that confiscation into effect, may certainly be the object of the war, if the injured nation thinks proper.”
The doctrine here maintained, that in war, poison and every . ' species of fraud may rightfully be used, has received the general condemnatian of mankind. It may be the censure on Bynkershoek is not wholly deserved, inasmuch as he expresses no approval of those practices, but differs from other writers mainly in distinguishing between the absolute rights of war and those . voluntary relinquishments of them which are dictated by humamtv and generosity.
*368ü But if it be admitted that ■ humanity, Christianity, and the tisuges- and rules observed by all civilized nations (which constitute public law), forbid even in vyar the use of certain means, the discussion whether such rights abstractly exist, would seem to-be a disputation savoring rather of the subtlety of the schools than of that practical sense which seeks to discover and establish the' actual rules by which nations in a state of war are governed. ■ That the rights of war, as deduced by Bynkershoek, from a consideration of its abstract nature, are mitigated by the laws of* war as established by the general consent o." nations, with fespéct to the effects of conquest, as well as tc the mode of Warfare, is proved by the general recognition ol the principle that, on the conquest of an enemy’s territory, pri> 'ate rights of property are to be protected.
u! But if “ a nation which has injured another is to be considered ^’confiscated, with all that belongs to it, to the nation that has r'ebeived the injury,” this confiscation must extend to private as well as public property.
¡-«’¿¡^declaration of war undoubtedly involves the assertion of the right to measure and forcibly to exact an indemnity for the wrong which has occasioned the war.
-'"To seize, to conquer, or to destroy an enemy’s goods, In, territory or his armed adherents, are but the means of exacting thi¿; indemnity. -
matter of theoretical speculation, we may consider the seizure,«the conquest, or the destroying, as .done by virtue of a preViouN fictitious or hypothetical confiscation of property, or ibíMíür’etof dife, incurred at the date of the declaration of war. But the necessity of such a theory is not very apparent. For tffb’’right’'to'S'úbdue the enemy being admitted, as á means of tetdifi-inghn’-mdemnity for previous wrongs, the' supposed constructive bonfíscation can add nothing to the rightfulness of those hétsi:y' ft'ls'for this reason said, in the opinion above cited, that “'.thé’ ebhquest of an enemy’s country, admitted to be his, is not the1 assertion of. an antecedent, right. It is the assertion of the Will'and power to wrest it from him.” On which the counsel for he United States observes: *' Then all government? are high*369waymen! Forcibly to take without antecedent right is a very good definition of robbery.”
The inference is not just. Conquest is, undoubtedly, the assertion of a right, but it is the right to conquer which results from a state of war.
ít is not the assertion of a previous right or. title to the territories conquered.
Whether in so doing the belligerent is acting like a highwayman, depends upon the moral justification for the war,-an inquiry into which neither, neutrals nor the Courts of the belligerent can enter.'
The hypothesis of an antecedent confiscation, to enforce which the seizure is effected, in no way affects the question. The moral justification of the supposed confiscation has still to be considered — in other words, the justice and rightfulness of the war.
But whatever be the reasonableness or necessity of supposing this theoretic confiscation by belligerents, of everything belonging to the enemy, it is manifest that by the laws of nations the confiscation is waived where territory is conquered, so far as respects private property; and especially where the conqueror, by the terms of the treaty of cession, has bound himself to respect all rights of private property existing at the date of the conquest.
To repudiate that obligation with respect to any property held in private ownership on the ground that, though private pro perty when the conquest was effected, it was public property ten or twenty or thirty years before, when the war commenced, and that a writer on public law has said, that the declaration of war is a confiscation of all the property of the enemy, and that the conquest was merely carrying into effect the confiscation, would seem an attempt to justify the breach of a plain and positive obligation, which needs but to be stated, to be condemned.
The obvious and natural construction of the treaty is, I think, manifestly the true, one, viz., that all private property Iona fide acquired, and held as such ,by a legal or equitable title obtained under the former Government, is to be respected by the bellige*370rent, to whom by conquest and treaty the rights of sovereignty have been transferred.
I do not think it necessary further to discuss this question. ' It is enough to say that I have attentively considered all that is urged by way of argument or illustration in the brief filed by the counsel for the United States. I have found nothing to which the answer did not appear to me easy, or which has shaken my confidence in the justness of the views previously entertained by the Court.
The question might well have been dismissed without argument; for we have an authoritative decision of the Supreme Court on the point. In the case of The United States vs. Pico, (23 How. R. 326,) the Court says : “ In the Act of Congress of 1851, and the decisions of this Court that day (viz., July 7th; 1846, the date of the capture of Monterey and constructively, of the conquest of' California,) is referred to as the epoch at which the power of the Governor of California, under the authority of Mexico, to alienate the public domain, ceased.”
As, however, the point then before the Court was the deter mination of the precise date of subversion of the former Government, and to decide upon the validity of acts done under Mexican authority after that event — while the validity of acts done previous to it was not questioned, nor does the point raised in this case appear to have been presented to the Court — ■ I have thought it not improper to examine at some length the acute and ingenious argument submitted by the counsel for the United States.
I have given to this case much and anxious consideration. The preparation of this opinion has required more labor than even its great length would indicate.
Voluminous as it is, I am nevertheless aware that it is in many respects incomplete.
To have treated at length every point in the case would have extended it far beyond all reasonable limits.
I cannot conclude my labors on this most important 'case, without acknowledging the great assistance which .the Court *371has derived from the very, able and eminent counsel engaged in it.
Their indefatigable-and exhaustive industry has presented to . the Court every argument, authority and illustration which profound and patient study, not only of the American and English, but of the Mexican and Spanish laws, could suggest; together with every view of the complicated facts in the case, and of their relations to each other, which could assist the Court in its study of the mass of depositions which have been taken.
To the Court has been left merely the duty of considering the. suggestions, and collecting and combining the abundant materials contained in the briefs of counsel.
On the whole case my opinion is:
That the claimants are entitled to seven pertenencias, to' be measured in the manner, of the form, and of the dimensions prescribed in the Ordenanzas de Minería of 1783.
And, also, that they are entitled to two square leagues of land, to be. located on the land of their mining possession, but in such a way as not to include any land granted in private ownership, by competent authority, previously to July 7th 1846.”