H^ |u tlje ^u^um Court of tlje ^tate of Califorttix M^RY AVELCH, APPELLEE, VS. APJn-LLANT. ^ ARGUMENT FOR APPELLANT, (;OXOE!IN1XG THE OWNERSHIP OF LANDo BY PCK' N. BENNETT, of Counsel. •^ '^ AN FRANCISCO: O'MliAUA * I'AINTKU, I'KINTERS, 182 Cl-AY STUKKT. - ^ — :^ if';>4^/a5oo- cyf^H^^ SUPREME COURT. MARY WELSH, vs, f BRIEF OF APPELLANT. JOHN SULLIVAN, T And Others. / § 1 . In ejectment, the plaintiff must recover on the strength of his own title. Every substantive fact, required by law to make out his claim, must be proved. No fact will be presumed in his favor. In the deduction of title, every mesne convey- ance, through which he claims, must, like any other fact, be established by proof. If he claims under an execution sale, he must not only prove the execution and judgment, but he must also establish ownership of the land in the judgment debtor, as one of the necessary steps in the deduction of his title. These are elementary propositions. § 2. This is an action of ejectment. The plaintiff claims under an execution sale. The judgment debtor is the city of San Francisco. The plaintiff can recover only what the city of San Francisco is proved to have had, and, if the city had nothing, the plaintiff can recover nothing. Again, though the city may have had an interest, yet, if it were of such a nature that it could not be taken under a forced sale — for instance, if the city were a naked trustee, holding the premi- ses in trust for the inhabitants in general, without any bene- ficial interest in herself, then she had no interest which passed to the plaintiff upon which ejectment can be mantained. From these considerations two questions arise : '€_ ■\ [ 2 J First, did the city of San Francisco own the premises? In other words, was the fee of the land vested in the city, or did it still remain in the government ? •Secondly, conceding that the city of San Francisco held the fee, or had some claim, right or title, legal or equi- table, in the premises, was such claim, right or title, whatever it may have been, the subject of levy and sale on execution ? § 3. I maintain the negative of both the above questions, and I assert as propositions, which I shall endeavor to make clear- First, the city of San Francisco was not the owner of the premises — that is to say, the fee of the land was not in the city, but still remained in the government. Secondly, conceding that the city had some estate right or interest — it was not subject to sale on execution. § 4. First then, as to the vested estate in the city — I have said that the burden of proof lay on the plaintiff to prove the interest of the city, but a very strange anamoly in|}i|B nisi prius trials presents itself in the progress of this cause. The rule I have stated, had been adhered to by lawyers and judges in this country and in England, from the earliest ages of our juridical history ; and it had been supposed to be settled, that, in an action of ejectment, it lay with the plaintiff to establish by proof, that he and those under whom he claimed had the title, and that the burden of proof was not, in the first place^ cast on the defendant to prove that the plaintiff had no title. And this rule of law was supposed to be so well founded on good sense and justice, that it had been held universally ap- plicable, not only in actions of ejectment, but in all other actions, so that it might be said to have become an axiom in legal science, that the law would not require a party to prove a negative — that it would not call upon the defendant to dis- prove the alleged title of ihe plaintiff, until the plaintiff him- self had adduced some evidence tending to establish it — that it would not deprive a person of the enjoyment of a right in possession solely because he might not be able to disprove every unsupported claim which could be alleged against him. [ 8 ] This rule however, by which justice had been administered for a thousand years, was deemed inapplicable to the condi- tion of affairs in San Francisco, and derogatory to the ad- vancement of legal science in the nineteenth century — while the strange doctrine was sustained by the Court, that, in an action of ejectment, where the plaintiff claimed under an exe- cution sale, title in the judgment debtor would be presumed without proof, and that the^'burden of disproving this unsus- tained allegation of the plaintiff lay upon the defendant. Is this law? § 5. I notice this here, to show how far the settled rules of evidence have been departed from, in order to help the plaintiff to recover. If the plaintiff had been held to abide by the law, and to prove her case like other plaintiffs, there would have been no cause for apprehension on the part of the defendant ; but as it would have been highly inconvenient for the plaintiff to be obliged to prove a fact which did not exist, the Court kindly helped her out of the difficulty by presumption, § 6. But, notwithstanding all the aid which the plaintiff may deiive from the unheard of presumption above referred to, it appears beyond doubt, from the law applicable to the case, THAT THE CITY OP SaN FrANCISCO HAD NO TITLE. And I shall proceed to show that this is so: First: By the decisions of this Court: Secondly: By the decisions of the Board of U. S. Land Com- missioners for California: Thirdly: By the decision of the Circuit Court of the U. S., for this circuit: Fourthly: By the decision of the Supreme Court of the United States. Fifthly: By the Spanish and Mexican law. § 7. First, then by the decisions of this State. The first case in which this question was presented, was the case of Woodworth vs, Fulton (I Cal. Rep., 295.) In that case there was no proof of ownership in the city of San Francisco, or in the town or pueblo of that name, nor [ 4 ] was it explained whence or how any title was acquired. The Court there held, that if the city had any title, it should have been proved, — that not having been proved, it could not be presumed, — and that the lands lying within the corporate limits of San Francisco, which had not, previously to the conquest of the country by the American forces, been grant- ed by the Mexican Government or its officers, constituted a part of the public domain of the United States. This deci- sion was founded upon the general doctrine, that a plaintiff in ejectment must prove title in those under whom he claims, in order to show title in himself, and that in the total defect of proof that the Mexican nation had parted with its right, the Court could not presume that state of facts ; consequently the legal presumption was, that at the time of the military occupation of California by the Americans, the title to the soil still remained in the Mexican Government, In other words, all title being derived from the sovereign, no pre- sumption could be indulged that the sovereign had parted with the title. If the fact existed, it must be proved. The Court say, (page 306) " It is claimed that San Francisco, as the lawful successor of Yerba Buena, was what is termed in Spanish law, a pueblo; and that being such, there was in some undefined manner, and under some vague system of things, vested in the people of the pueblo, or in the alcalde, or justice of the peace, or ayuntamiento, as representative of the pobladores, an absolute title to a large tract of land, the limits of which have never, as yet, been ascertained farther than the city surveyor has been directed to run the lines of city lots. Whence or how that title was acquired, was not attempted to be explained on the argument ; and I am not aware of any legislation, general or special, of Spain or Mexico, which vested the pueblo of Yerba Buena, or the town or city of San Francisco, with a title to a foot of land with, in their assumed boundaries." The Court farther say, (page 306-7,) " It does not appear that San Francisco, or Yerba Buena, was ever constituted a pueblo, or had the rights of one ; a fact which, I think. [ 6 ] should be established by proof, and of which Courts cannot and ought not to take judicial notice ; and further, even admitting that it was a pueblo, there is still nothing in the case showing the boundaries of the pueblo, or that the lot in controversy lies within those boundaries." Since that decision was made, the extensive and minute examinations which have been made, have proved utterly unavailing to show, either that any title was acquired by express grant from the sovereign, or that " any legislation, general or special, of Spain or Mexico, vested the pueblo of Yerba Buena or the town or city of San Francisco with the title to a foot of land within their assumed boundaries" On the contrary^ every additional fact which has been discovered, every addi- tional document which has been brought to light — the elaborate and learned investigations which have siiice been made into Spanish and Mexican law — all have tended to establish the position then taken by the Court ; until at last the proof of the correctness of that position has become so accumulated and clear, as no longer to leave any room for doubt in the minds of thinking and intelligent men, who have been at the trouble to inform^themselves upon the sub- ject, and who do not deem themselves forever committed to error, because they have once happened, inadvertently per- haps, to go estray. § 8. The decision in Woodworth vs, Fulton, was made at the December term, 1851. The doctrine of that case was reaffirmed in this Court in the subsequent cases of Reynolds vs. West, (1: Cal. Rep., 322, 325,) Brown vs. O'Conner, (id. 419, 421,) and in numerous other: cases not reported, both in this Court and in the inferior Courts of the State during the years 1850, 1861, 1852 and 1853. The same view was again taken of the law in the case of Vanderslyce vs. Hanks, (3 Cal. Rep., 28, 45.) In this case, the defendant claimed under a grant from the pueblo of San Jose, which was the oldest pueblo in California, and the best known, and contained the great, est population ; so that it would seem, if the extraordinary doctrine of presumption, which I am ^combatting, could be [ 6 J properly applied in any case, it should have been applied to a claim arising under the pueblo of San Jose. But the Court say, (p. 45,) per Hydenfeldt, J., "I now come to the consid- eration of the defendant's title. He claims by virtue of a grant from an Alcalde of San Jose. The regularity of this grant is assailed on various grounds, but the view I have taken renders it unnecessary to consider them. To sustain this grant, it was necessary in the first place that the lands in dispute had been the property of the town of San Jose. JVo title was exhibited establishing this fact, and the only evidence in relation to it was derived from reputation as to the bounda- ries of the town." The learned Judge then proceeds to state that, in as much as this evidence derived from reputa- tion was insufficient, the alcalde's grant could not be sustained. Several points are affirmed by the Court in the case last above cited. First: That a pueblo and town are the same thing in Mexican law — for, the Court at one time designates San Jose as a pueblo, and at another, as a town. Secondly: That where a party claims title under a Mexican pueblo or town, it is necessary to show " that the lands in dispute had been the property of the town ; that is, the ownership of the^town must be proved the same as the ownership of any other individual under whom a party claims title. Thirdly: That where no proof is produced establishing ownership in the town or pueblo, the Court] cannot presume and decide, as matter of law, that the pueblo or town was the owner of the lands. , ; Fourthly : In this case there is no presumption in- dulged, independent of proof, as to the limits of , the town or pueblo, nor do we find the still more astounding doctrine that whatever lands a local officer might see fit to give away to any person, were to be presumed, in law, to be included within the limits oj the pueblo or town. Fifthly : We hear nothing of the doctrine that the grant of a lot in a pueblo, made by an alcalde, raises the [ 7 ] presumption that the alcalde had authority to make the grant. The novel doctrine of presumption afterwards advanced^ does not seem at this time to have occurred to the minds of the Court, and, therefore, the positions taken are in accord- ance with law. § 9. But, again, in the case of Leese 4' Vallejo vs. Clark, (3 Cal. Rep., 17,) the Court holds a doctrine equally strict.' In that case, the plaintiff claimed under a grant made by the Governor, of a water lot at the embarcadero of Yerba Bu- ena, (being near the very centre of San Francisco). On the trial of the cause below, the plaintiff offered the original pe- tition and grant executed in proper form, in evidence, but the Court below rejected the offer, whei eupon a verdict and judg- ment were rendered in favor of the defendant. This Court, on appeal, affirmed the judgment. Mr. Ch. J. Murray delivering the opinion of the Court, says, (p. 25), after citing certain Mexican laws and regulations concerning the grant- ing of lands, " I have cited these regulations to show that the alienation of the public domain of Mexico was a subject of careful consideration with that Government, hedged around with an infinity of restrictions for the protection of the sovereignty, and that the loose and careless conduct of her governors, in executing this trust, was not approved by the Supreme Government, although removal from the scene, and the insignificant value of the lands at that time, seemed to direct public attention from these abuses. " To these regulations this Court can alone look, and by them every grant must be determined. Had we the pow- er to discriminate, its exercise would be more dangerous, and productive of more iDJustice, than the total inability to go beyond them. " If the officers of the Mexican Government, to whom was confided this trust, exceeded their authority or neglected the solemnities and formalities of the law, this Court is bound to take notice of it, and cannot shield those claiming under such titles from the necessary consequences of ignorance, carelessness, or arbitrary assumptions of power. [ 8 I "The grant from Alvarado to Leese and Vallejo con- tains nothing but a petition and grant of the Governor, There is no map attached, no survey, record, or evidence, that the plaintiffs have ever been put in judicial possession, no act of the territorial deputation confirming the act of the Governor, or evidence that the grant, together with a map, were recorded in a book kept by law as a record of said grants, as provided in section 9th of the act of '28. But that these requisitions must be fully complied with, this Court has no doubt, without which a severance of the land from the public domain, and a rigid adherence in all other respects, the title did not pass to the grantees, but remained in the Government of Mexico. "The title at best can only be considered as inchoate. It passed with the map of the property of Mexico to the United States, who now hold it, subject to the trust imposed by the treaty of cession and the equities of the grantees." And again in the same case the Court uses the following language: *' Holding as we do that the law of ^24, and the regulations of '28, must be strictly complied with, that the title of the plaintiffs at best is inchoate aad incomplete, and therefore insufficient to maintain ejectment, we are of opinion the Court below properly excluded it as testimony." § 10. There are several things worthy of note in this case : First: That, in granting lands in the city of San Francisco, the officer making the grant was obliged to follow strictly the laws and regulations which had been prescribed for that purpose by the Mexican Government, and that any grant of a city lot, not made in strict conformity with the laws and regula- tions^ would be held invalid. Secondly: That a party could not recover a lot in the city of San Francisco merely upon the strength of his petition and a Mexican grant made in due form in pursuance thereof. Thirdly: That the land in controversy, although clearly situated within the limits of the then city of San Francisco, I 9 ] and what the Court has since recognized as the former pueblo or town of San Francisco, constituted a part of the ^'public domain" of Mexico, and that without a rigid adherence to the Mexican laws and regulations the title did not pass to the grantee, but '^remained in the Government of Mexico," and had afterwards '^passed with the map of the propirty of Mexico to the United States, who now hold it, subject to the trust im- posed by the treaty of cessioij and the equities of the grantees." Fourthly : In this case, as in Vanderslyce vs. Hanks, we hear nothing of the subsequent doctrine of the Court that they would pre^w me, as matter of law, that there was a town — thai any land granted was within the town — and that the officer had authority to grant — and that a simple grant, without any other evidence whatever, was sufficient to enable a party to recover in ejectment. § 11. Thus we see that the principle of the case of Wood- worth vs. Fulton, was sustained in this Court, and in all the inferior Courts during the years 1850, ^51, '52 and '53, and was supposed to be the established doctrine of this Court. The business of the community, tie buying, selling and mort- gaging of lands, had proceeded upon the faith of that case — interests of great magnitude had grown up under it, and people considered it, and had a right to consider it, as the settled law of the State — and so in fact it remains, so far as any decision of this Court, based upon reasoning, is concerned. But, unfortunately for the community, unfortunately for the owners of real estate, and doubly unfortunately for the Court, so far as regards confidence in the stability of its decisions, and in a correct administration of law, a labored attempt was made by one of the judges of the Court, in an opinion deliv- ered at the October term, 1853, to discredit the case of Wood- worth vs. Fulton, and the ground upon which it was founded, and the conclusions therein arrived at — I refer, of course, to the opinion of Mr. Justice Heydenfeldt, in the case of Cohas vs. Raisin, (3 Cal. R., 443.) I speak of this emphatically ag the opinion of Mr. Justice Heydenfeldt, for two reasons : first, I 10 ] it is well known to the profession that Mr. Ch. J. Murray delivered an opinion in the case distinct from that of Mr. J. Heydenfeldt, and although it is not reported, it nowhere ap- pears that the Ch. J. concurred in the reasoning of his asso- ciate, farther than the statement of the reporter, which would undoubtedly be sufficient to show the concurrence of the chief justice, were it not for the fact that a separate opinion was delivered by him. Secondly, the entire opinion of Mr. Justice Ueydenfeldt is extra judicial, being wholly uncalled for by the facts of the case. It is not, therefore, entitled to be consid- ered as authority — the case being on6 of that class, in which Courts are said to arrive at a correct conclusion upon erro- neous reasoning, or upon no reasoning at all. Great consid- eration, undoubtedly, should be awarded to the opinion as emanating from so profound and experienced a jurist; but it is entitled only to the consideration due to its reasonivg, and does not come to us with the authority of a decision of the Court. The facts in this case are as follows : § 12. The plaintiff, Cohas, whose title was derived under a grant made by an American Alcalde in 1847, executed a bond on the 12th day of December, 1850, to Legris & Laranchy the condition of which was, that, upon the payment of certain promissory notes made by L. & L., amounting in the whole to the sum of $3,<)00, the plaintiff would execute and deliver to L. & L. a warranty deed of part of lot 233, in the city of San Francisco ; and upon the nonpayment of either of said notes at maturity, Cohas was to have the right to take back the property. On the 1st day of March, 1851, Laranchy assigned his interest in the bond to Jules Raisin. At the date of the bond, the plaintiff, Cohas, was in the peaceful possession of the lot, which was delivered over in pursuance of the agree- ment, and the defendants had been, ever since the date of the bond, in peaceful possession, and had never been disturbed in any manner whatever, and, at the time of bringing the suit had a bakery on the lot in full operation. Fourteen hun- dred dollars of the purchase money had been paid, but three of the notes for $300 each, which had becom^ due on the [ n ] 15th of June, July and August, had not been paid. Upon this state of facts the plaintiff brought his suit, and asked that the premises might be restored to him • and this was all he did ask. It appears that Kaisin, the assignee of the bond, was the otily one who answered the complaint. The substance of his answer was, that he had discovered that the plaintiff had no title to the premises, and that the plaintiff Gould not comply with bis covenant to' execute a good war- ranty title, and he asked that the contract might be rescinded, and for judgment in his favor for the amount of the purchase money which had been paid. § 13. NoAV every lawyer must see, at a glance, that this is one of the plainest cases in the world in favor of what the plain- tiff demanded, and against what the defendant, Raisin, asked. The defendanis had obt(nned possession of the lot from and under the plaintiff, and then neglected to perform their part of the very contract under which they had entered into possession, — Whether the plaintiff had title or not, was immaterial, for the defendants had obtained possession from him, and still held possession under him, and, therefore, they could not dispute or question his title; and, besides, the plaintiff had only covenanted that he would execute a good warranty deed, and, whether he bad title or not he cotfld, unquestionably, execute a good warranty deed, upon the covenant of warranty, in which the defendants, if ever evicted, could have maintained their action. For, that there is no breach of warranty until there is an actual eviction, and that the covenant that the plain- tiff will execute a good warranty title refers to the deed itself. and not to the title to the property, are rudimetats in law. (See 4 Kent's Comm., 471, and 20 Johns., 129.) § 14. The case then was simply this : the defendants having procured possession from the plaintiff', they were estopped, so long as they retained such possession, from questioning the title of the plaintiff. § 15. The facts of the case bring it within that class of cases of which Hoen vs. Simmons, (1 Cal. Rep. 119,) Tartar vs. Hall, (3 id. 263,) and Redman vs. Bellany, (4 id. 247,) are examples. [ 12 ] § 16. In Hoen vs. Simmons, the defendants claimed that the plaintiff had sold them the premises in question, and that they had taken possession on the faith of such contract ; but they had neither fulfilled nor offered to fulfill the terms of the con- tract which they set up. In a suit brought by the plaintiff to recover the premises, the defendants relied, in bar of a re- covery, on want of title in the plaintiff. But the Court say, '' The defendants having entered into possession, claiming under the plaintiff and in subordination to his title, are es- topped from questioning it." § 17. In Tartar vs. ffa//, the plaintiff executed and delivered a conveyance to the defendant of 160 acres of land, belonging to the United States, and delivered possession thereof to the defendant, and the latter gave his note and executed to the plaintiff a mortgage upon the same land. In a suit brought by the vendor and mortgagee, to enforce payment of the note and mortgage, the defendant set up that the plaintiff had no right, title, estate or interest in the premises, and had no power or authority to convey the same. § 18. But the Court, per Heydenfeldt, J., say, (p. 266,) "The ino':rtgago executed by the defendant operates an estoppel to the defence he has set up, according to well established prin- ciples of public policy, for the security of good faith and fair dealing, a party is not allowed to controvert the declarations which he has made by deed, or to deny the enforcement of rights which he has thus attempted to confer. § 19. In Redman vs. Bellamy, the defendant had executed a mortgage upon premises of which he claimed to be the owner. Having availed himself of the consideration for which he exe- cuted the mortgage, he set up, as a defense to an action of ejectment, brought by the purchaser, under a judgment in a suit of foreclosure, that he was not the owner, but that the title was in another person. But the Court, per Heydenfeldt, J. say, (p. 250.) " The plaintiff claims under a Sheriff's sale. The execution was upon a decree of foreclosure of a mort- gage executed and given by the defendant. He is, therefore, estoppqd from setting up the defenses attempted in this case." [ 13 ] And the Court cite the above case of Tartar vs. Hall, as an authority in point. § 20. These cases proceed upon the principle, that a person shall not be permitted to enjoy a right, and at the same time controvert or deny the validity of the title under which that right is enjoyed, and thus t^void the obligation which he has incurred. And the same principle is applied to the case of Cohas vs. Raisin — and it is the only principle, either of law or of ethics, which is applicable to the facts upon which the Court was called upon to pass judgment. Indeed, the case of Hoen vs. Simmons was cited by counsel, but the learned judge, preferring originality to law, leaves the real merits of the case to themselves, and launches forth into a disquisition, which would have prefaced almost any other judgment of the Court, as well as the one at bar. And I will add further, that I have the best authority for asserting, that neither of the ingenious and learned counsel who argued the cause, raised or suggested the point upon which the opinion is based. f^, § 21. But, vitmf^ the opinion in Cohas vs. Raisin is to be taken as the decision of the Court or not, if it be in all res- pects erroneous, if it mistakes facts and misapprehends authori- ties, if, in fine, it be found to be one series of blunders from beginning to end — then, surely, it ought not, in any view, to be regarded as authority. § 22. I shall now show that, that opinion is illogical in rea- soning — unsustained by the authorities cited — exposed to the imputation of unfair construction of prior decisions of this Court — mistaken in the facts of the very case then under consideration, as well as in its apprehension of Spanish and Mexican law — resting for support upon presumption deduced from presumption in infinitum — erroneous in its application of the principles of the common law — and founded solely upon the assumption and decision by the Court, as matter of law, of a point which is clearly a question of fact, and deter- minable as such by a jury. § 23. The opinion sets out with the statement, " that the plaintiff sued on a note wlii<5h was given for part of the pur- [ 14 ] chase ftidney of a lot " — Thus, the opinion commences in mis- take, and the first line perpetrates an error. The plaintiff did not sue up«m a note. He brought his action to recover back the lot, upon that portion of the agreement, which entitled him to restitution, in case either of the notes was unpaid at maturity — The only prayer of the plaintiff, as appears from the report of the case, (p. 444,) was, that the property might be restored to him, or to use his languoge as reported " might be reMuted to him." Not only this, but it appears further, that Jules Raisin was the only defendant who appeared and answered the complaint, so that the litigation was, in reality^ between the plaintiff and himself. But Jules Raisin was the assignee of the bond given by the plaintiff, and was in no res. pect a party to, or liable upon, the notes, or either of them^ and could not, by any possibility, be sued upon them. How, then, could the Court start off with the assertion that '' the plaintiff sued on a note," &c ? And what pan be expected from the balance of an opinion which perpetrates such a blunder at the start ? § 24. The opinion, then, in the next line, goes on to say, " The sale of the lot was by vrarranty." Thus, the second line contains the second mistake. There had been no sale, either by warranty or otherwise. There was a contract to sell, and to give a warranty deed, at a future time, upon the happening of a future contingency, the payment of the notes. ►That, however, is a very different thing from •' a sale by wai-- ranty,'^ which the opinion asserts it to be. Thus, in the first two lines of the opinion, there are found as many mis- takes of fact ; and how can an opinion be regarded as authority, which is founded upon an entire misapprehension of the facts of the case ? § 25. The opinion then proceeds, *' The defendants set up that the plaintiff has no title, and therefore cannot comply with his warranty, and they pray a rescission of the con- tract." Now, every lawyer will see, at a glance, that this defense is no legal or equitable answer to the complaint or bar to the action, and that, if judgment final had been rend- I 16 ] ered in favor of the defendants on this ground, it would have been bad, and would have been stayed on motion in arrest. The point of law on which the merits of the case turned, was, as has been shown above, very different from that set up in the answer, and on which the opinion is based. § 26. Then, solely upon the admission in the record that the plaintiff derives title from the grant of an American alcalde, which was made during the war between Mexico and the United States — a fact, which, in any proper legal view, was entirely irrelevant and immaterial, inasmuch as the same judgment ought to follow, whether he derived his title from an American alcalde, or from a Mexican alcalde, or from the Mexican or American government, or from any other source— the opinion proceeds to the statement of the following proposition : " This involves the consideration, whether, under the Mexican domination, towns weie invested with property in lands, whether alcaldes of towns had power to grant, and if so, whether the qualifications of the officer, and the circumstances of the country at the time of the grant, will affect its validity." § 27. But, the facts of the case did not involve the consider- ation of any, or either of, the matters thus stated to be in- volved. And this admission of the parties, that the plaintiff claimed under an American alcalde, upon which this state- ment in the opinion proceeds, has been shown to be wholly immaterial. § 28. " The laws of Spain fully recognize the right of cities, towns, and villages, to acquire and dispose of real estate, subject to the royal regulations, which were made from time to time for their government." Undoubtedly, the laws of Spain, like the laws of all civil- ized communities, recognized the right of cities, towns and villages, as well as of individuals, to acquire and dispose of real estate, subject to the royal regulations, or, which is the same thing, subject to the laws. But what has this to do with the matter in hand ? even conceding that matter to be the immaterial proposition which the opinion has just above [ 16 ] announced as being involved in the case. Because cities, towns and villages had the right to acquire^ does that prove that they did acquire in all cases? Does that prove that the town of San Francisco had acquired ? And because thej could '' dispose of," accordinfr to law, docs that prove that they could '• dispose of," without law, or contrary to law ? § 29. "And," proceeds the opinion, " when once acquired, neither the king, nor his officers, can take away, or grant to others, any of those municipal lands." What municipal lands ? for, this is the first place, in which any thing is said about municipal lands. The opinion, assuming to be learned in logic as well as in law, should hardly have stated, that neither the king nor his officers could take away or grant *• municipal lands," because towns, cities and villages, had the right to acquire and dispose of, and had acquired "real estate." This proposition assumes the very point which is to be proved — that is^ that the lands had been acquired by the town of San Francisco ; for, we deny that the town of San Francisco ever did acquire any lands. It will be shown, here- after, that this sentence is not only bad in logic, but, what is equally, perhaps more important, assumes a position which is incorrect in law. § 30. The opinion then proceeds with the following quota- tion from Spanish law : " Our will and pleasure is that cities, towns and villages shall retain their rights and revenues, and municipal lands (propio?), and that no grants be made of them, and we command that all grants of the same or any part thereof which we make to any person, be of no value whatever." § 31. I would, in all seriousness, ask, what support for the doctrine sought to be sustained, can be derived from this law ? In order to be of any avail to the opinion, the reason- ing must be this : It is the will and pleasure of the king, that cities, towns and villages shall retain their rights, revenues and municipal lands — therefore they have a right to part with them — but, says the king, it is our further will and pleasure, that no grants be made of such lands — therefore, a grant of 1 17 j such lands by an American alcalde is good. Again, says the king, we command that all grants of the same or any part thereof, which we may make to any person, be of no value whatever — consequently, says the opinion, because grants by the king are void, grants by an American alcalde are valid. § 32. I might proceed with the rest of the paragraph in the same way, showing an unmeaning citation of authorities, upon points which were never doubted or disputed, or false deductions from such authorities, if they can be considered as having any applicability at all. The law cited in the last quotation of the opinion, as Law I, Tit. XVI, Lib. VII, of Nov. Rec, which is the same as Law, 2 Tit. 5, Lib. 7, R., has been as often misunderstood and perverted, as it has been cited in our Courts. The law when correctly translated, is as follows ; " Our will and pleasure is to preserve to our cities, villas and lugares, their rights, revenues and prnpios, and not to make any grant of any thing thereof : Wherefore we com- mand that the grant or grants, of them or any part thereof, which we may make to any person whatever, be not valid." This law speaks of such things only as have been already acquired by cities, villas and lugares, but it confers no new property or rights upon the places spoken of. So, also, when the law guaranties to the towns their privileges, offices, uses, customs and franchises, (as in Laws 1, 2, 3, 4 and 5, Tit. 2, Lib. 7, Rec; and Law 3, Tit. 5, Lib. 3, Rec), or rights, rev- enues and propios as in Laws 1 and 2, Tit. 5, Lib. 7, Rec, (the first being the law quoted in the opinion), or Jildeas, for- tresses, &c, (as in Law 6, Tit. 5, Lib. 7, Rec), it speaks of those things which have been expressly granted to them, or acquired by some legitimate title, and is only in affirmance of the principles of natural justice equally applicable to the rights of individuals and of corporations ; and when it gives a solemn pledge to preserve to the towns and cities in Spain, their termirws comunes, or valdios ejidos, monies and pastoSj (as in Laws 1 and 2, Tit. 7, Lib. 7, Rec), and that the sove- reign will not sell any part of the terminos publicoSj or valdios, [ 18 ] (as in Laws 8 and 10, Tit. 5, Lib. 7, and in Law 11 of same Title, which refers to the solemn contract between the king and the people known as the " Condicion de Millones), it has exclusive reference to vacant lands in Spain, of which the citizens of the towns had enjoyed the use in common for many centuries, and proposes the perpetuation of a system of policy in reference to the public lands which was completely abandoned in 1813. § 33. These laws, with others of a like nature, so fre- quently cited in our Courts, recognizing certain rights, prwi- leges, exemptions and pr(»perty in towns, refer to such rights, &c., as had been conferred by special and formal acts of the legislative power, and prove this, and this only, that the sacred right of property, founded in the law of nature itself, was respected by the sovereign, whether vested in individuals or corporations. But to cite these laws for the purpose of establishing the fact that a town is the owner of any speci- fied or defined tract of land, store, apothecary's shop, rural estate, or other property, would be no less absurd, than to cite in support of some private individual land claim. Law 7, Tit. 13, Lib. 4, and Law 6 and 10, Tit. 10, Lib. 5, of the same RecopUacion, to establish the fact that the claimant had acquired a valid title to the property claimed by him, because these laws contain guaranties equally ample in favor of the private property of individuals. For all the rights or pro- perty which individuals, towns or corporations had acquired, must appear in the documents by which they were acquii-ed, or in the general guaranties of the common law of Spain extending alike to individuals, towns, villas, cities and cor- porations. § 34. But again, " The manner of granting municipal lands to towns, and the manner in which they were allowed to rent or dispose of them, depended on royal regulations which were changed from time to time. At one period they Could grant or sell them, and at another, they could only lease them, either for a term of years or forever, the rents forming ft fund for municipal expenses. But these grants, sales and ■ [ 19 1 leases were always made by the municipal authorities, with the permission of the crown, but neither the king nor the crown officers could themselves dispose of the lands once granted or acquired by the towns." Now, if this statement has any applicability at all, it tends to overthrow the very doctrine in support of which it is cited. There is no doubt but the manner of granting lands to towns, and the manner in which they were allowed to rent or dispose of them, depended on regulations of the king, or of the legislative power. But it is absurd to cite any such doctrine for the purpose of establishing the fact that a grant of lands had been 'actually made to San Francisco : or, if such grant had been made, that an alcalde had the power to dispose of lands thus granted, in violation of regulations of the king or legislative power. Further, does the opinion intend to have us infer, because towns were at one time authorized to grant or sell lands, and at another time to lease them, that an American alcalde ol 1847, h^d power to make an absolute gift of any quantity of lands to any person he deemed proper? It so, I answer, that is clearly a non sequitur. The most singular part of this last quotation is yet to come. These grants, sales and leases, it says, were always made by the municipal authorities, with the permission of the crown — consequently, the reasoning must be, a grant made without such permission, will be upheld as valid ; for it will not be pretended, that any permission to alienate was given to an American alcalde, by the sovereign power either of Mexico or of the United States. § 35. To proceed — *' In forming new towns, the viceroys were directed, not only to mark out to them common lands, but also to give municipal lands (propios) to those who had none, the proceeds of which will serve to pay the corregi- dors." But, is it to be inferred, because viceroys were directed to give municipal lands to new towns, that, therefore, a vice- roy, or anybody else, had given municipal lands to San Fran- cisco ? That would be a strange process of reasoning ; yet, this would seem to be the only inference intended [ 20 ] to be drawn, or which can be drawn from this statement. There is, however, another difficulty which occurs, before any such inference can be deduced from the authority cited — and that is, the Spanish word *' propios " happens to be incor- rectly translated " municipal lands. ^^ The term has a much broader signification. " In some of these orders and decrees the municipal authorities were allowed to alienate the municipal domains only in case such measures were necessary for the good of the towns." In what orders or decrees? No order or de- cree has been mentioned before- Would the opinion have us infer, because the municipal authorities of some towns, were, by express order or decree, authorized to alienate municipal lands, in case such alienation was for the good of the town, Ihat, therefore, the municipal authorities of San Francisco might, without any order or decree, alienate the lands of San Francisco, not only where it was not necessary fcyr the good of the town, but where it was highly prejudicial to its interests. " In others they were forbidden to sell, and directed to lease only." -^ . Therefore, without any directions either to sell or to lease, the alcalde had the power to sell. • § 36. I have now gone through that portion of the argu- ment from which the two conclusions are drawn ; First : That the pueblo, town, village or city of San Fran- cisco, owned all the lands which an alcalde might choose to grant ; and Secondly : That the municipal authorities of San Fran- cisco had power and authority to alienate any lands which they might choose to claim belonged to the city, village, town, or pueblo ; for, I have been unable to find anything in any other portion of the opinion, which can be claimed as even tending to show ownership in the pueblo, 'or authority to convey. I leave it with the Court to say, with how much propriety, such conclusions can be drawn from such premises. § 37. After stating that, on the founding of new towns in [ 21 ] California, the population being too small to authorize ayun- tamientos, the granting of town lots was confided to the governors, the commandants, and to the captains of the pre- sidios ; that in 1812 and 181B, the Cortes authorized the establishment of ayuntamientos in towns which had not be- fore that right, and authorized the propios as well as royal lands to be reduced to private ownership — and that the grant of lots in pueblos, was to be made in full property by the ayuntamientos — and that other laws fixed the organization of the ayuntamientos, of which the alcalde was the presiding and executive officer — propositions which will be fully con- sidered in a subsequent portion of this argument — the opinion proceeds as follows : " In the Colonization Law of 1824, it is expressly, stated that the objects of this law, are the lands of the nation, which are not private property, nor belong to any corporation or pueblo, and can therefore be colonized ; thus fully recognizing the right of ownership in the pueblos, to the land aquired by them, either by grant or purchase." § 38. *' Thus fully recognizing the right of ownership in the pueblos, to the land acquired by them either by grant or purchase" But who in the world ever doubted the right of pueblos to own land acquired by them, by grant or purchase, or by any other legal mode ? No one ever doubted or ques- tioned their capacity to hold lands. But the right of owner- ship, and the fact of ownership — the capacity to hold, and the fact of holding, are different things. Whereas, the opinion proceeds upon the supposition that the right of ownership cannot exist without the fact of ownership. Every indi- vidual has the right to own lands, but a man would not be commended for his reasoning, who should deduce therefrom that every individual did own lands. '' Of such stuff are dreams made." § 39. '' On the 6th of August, 1834, the Territorial Depu. tation of California authorized ayuntamientos of towns to apply for {egidob) common lands, and (propios) municipial lands, to be assigned to each pueblo." " Authorized ayuntamientos to apply for," &g. But how does that help the argument? Docs it necessarily follow, [ 22 ] because ayuntamientos had the authority to npply, that they did apply? And fuither, that their application uas granted^ and was followed up by an actual assignment of the land^? by actually marking them out, and specifically dedicating them for each particular purpose — some for propios^ others for ejidos, others for dehesas^ &c., in the manner in which the law required these things to be done? Every individual was au- thorized to apply for a grant of lands to the government ; but every person did not apply, and not every person, who did apply, was successful in bis application. § 40. Art. 2nd : The lands assigned to each pueblo for municipial lands, {propios) shall be subdivided into middling sized and small portions, and may be rented out or given at public auction, subject to an emphiteutic rent, or ground tax, &c." *' The lands assigned to each pueblo '' &c., not the lands, which each or any pueblo may apply to have assigned to them, but such as shiill have been actually assigned; and how can this citation of the law help the cause, until it appear that such assignment has been made! Further, the authority contained in this clause is to rent or give at public auction, subject to an emphiteutic rent or ground tax. It is scarcely necessary to suggest that, when an authority like this is given by law, it must be strictly followed, or the act done is a nullity. And, how can this authority be made to sanction an absolute gift or grants not made at public auction, nor with the m^ation of any rent or ground tax? Yet the opinion goes the full length of upholding an absolute grant, not made at auction, and with- out the reservation of rent. § 41. " By the law of August 9th, 1834, art. 5th, municipal lands were to be granted to the new pueblos formed out of the secularized mission." " Were to be granted," <3o, twenty-eeven per- sons, residing in Contra Costa, made an effort to be set apart from the partido of San Francisco, on account of the inconve- niences to them of serving on the ayuntamiento, which, at that date, was required to hold its sessions at the Presidio. The sessions continued to be held at the Presidio until some time in the year 1837, when they were removed to the Mis- sion, which, from that period to the war, was the residence of the local authorities, and the place where all elections were held. It would seem from the above, that if there be any particular portion of that large extent of country, known as the partido of San Francisco, which would be entitled to the rights, privileges, and property, which are supposed by some, not well acquainted with the subjecti, to be vested in a cor- porat'j being, which they have christened pueblo, it would, most naturally, be supposed to be either the Mission or the Preridio ; and no better legal reason can be given for locating that particular spot at the embarcadero of San Franciscoi than could be given for locating it at the embarcadero of Contra Costa, or of Sonoma, or of San Rafael, or of San Francisquito Creek. If an alcalde's grant be good, of a lot of land within the present limits of the city of San Francisco, upon the ground of the existence of an ayuntamiento for the partido of San Francisco, it must be equally good of a lot in any other por- tion of the territory within the jurisdiction of the ayunta- miento. But what would be said of a grant by an alcalde of San Francisco of a lot of land in Sonoma or Marin county ? Yet the validity of such a grant is a necessary deduction from the doctrine of this opinion in Cohas vs. Raisin, The truth of the matter, however, is, that this action of the Territorial Deputation, the election of the ayuutimiento, and all the subsequent actions of that body, had nothing to do ■^ [ 25 ] ■ with the municipal organization of any town, but was a tem- porary organization for the entire northern portion of the territory. § 44. Further, at the date of this proceeding .of the Territo- rial Deputation, the power of establishing pueblos or towns did not rest with the deputation ; it coiild only be exercised by the supreme Government. The deputation could merely take the initiatiA and thej^recommendation was to be trans-^*^*^ mitted through the proper authorities to the Supreme Got- ernment for its final action. But further, the proceedings of the Territorial Deputation do not purport to direct the establishment or organization of a pueblo or town, or villa, or city, or any other municipal body — it simply directa that the partido, or district of San Francisco— thus speaking of something already existing — proceed to the election of a constitutional ayuntamiento, to be established in the presidio of that name. § 45. Above all, the proceedings of the Territorial Deputa- tion and the action had in pursuance thereof, were, at the utmost, but the organization of a political body, charged with the government of a limited district of country, and ' were in no wise connected with, or followed by, a change in the pro-perty to a single foot of land. The opinion proceeds upon the assumption that a political organization cannot exist under the Spanish system, without being, by the bare fact of - its organization, lasted with the absolute title to all the land within the limits of its jurisdiction. Is it necessary to sug- gest a doubt, whether this can be law ? § 46. But, further, neither in the decree of the Territorial Deputation, nor in the order of Governor Figueroa, in con- formity therewith, is any diotion contained to the ayunta- .s^fti miento or any other body, '^ to mark out, in the shortest time," or in any time, " the boundaries and limits of its muni- cipality," or any boundaries, or any limits. The ayunta- '* miento was elected for the partido or district of San 'Francisco, a district of country, the extent and boundaries of which were supposed to be known, and required no marking out by the ayuntamiento. 2 [ 26 ] The original decree and the whole thereof is as follows : *' 1st. That the political chief direct the district (partido) of San Francisco to proceed to the election of a constitutional ayuntaraiento, to be established in the presidio of that name, to be composed of one alcalde, two aldermen, (regidores,) and one town-attorney, (syndico procurador,) conforming, for that purpose, in all respects to the constitution and the laws of the 18th (12th) of July, 1830. 2d. That report be made through the proper channel to the Supreme Government for an approval." And the origin&l order of Figueroa is as follows : " Seal op the Political Government > OF Upper California. J " The most excellent Territorial Department using the powers conferred on it by the law of the 23d June, 1813, on yesterday passed the following instruction : [Here follow the resolutions of the department, as copied above.] " And I transcribe it to you for your information and com- pliance, recommending that the election be carried into effect on the day appointed by said law of the 12th of June. I also notify you, that the ayuntamiento, when installed, will exer- cise the political functions with which you have been charged, and the alcalde the judicial functions, which the laws, for a want of a judge of letters, confer upon him, you remaining restricted to the military command alone and receiving in anticipation the thanks due for the prudence and exactness with which you have carried on the political government of that demarcation. God and Liberty. " November 4th, 1834. " JOSE FIGUEROA. "To the Military Commandant of San Francisco." § 47. In what mani-er this direction, concerning the demar- cation of boundaries of a municipality, came to be inserted in Wheeler's Land Titles, I am at a loss to conceive. It is certain, that this clause is not contained in the original, either of the decree, or of the order ; and it is equally certain, that the learned judge, although he refers to these documents, the decree as of record in the Surveyor- GeneraFs office, and ^^p [ 27 ] the original order of the Governor as on file among the alcalde's records, must have rested satisfied with the author- ity of Wheeler's Land Titles, which he quotes, without examining the originals. § 48. But, suppose such direction was contained in the decree, or order, or both of them, and, moreover, suppose the ayun- tamiento did mark out the boundaries, what then ? I)oes if S result from that, that the partido, pueblo, district or town, became the owner of any of the land within, or without, the boundaries thus designated ? No law has ever been pro- duced sanctioning such a supposition, no authority has been cited, nor can be — none such exists. § 49. I cannot illustrate the position which I maintain, better than by quoting from the decision of Governor Felch, in the case of the city claim. " The establishment of the pueblo is based on the action of the Territorial Deputation had at their session the 3d of November, 1834. At that time the ultimate power of estab- lishing pueblos or towns as municipal organizations, was with the supreme government. The Territorial Deputation was to take the initiative, their recommendation and action was to be transmitted through the political chief to the supreme government for the disposition of the latter It is not alleged that any action of the supreme power was had in the case under consideration, but the proceedings of the Territo- rial Deputation are claimed to have had the effect of creating such organization. I shall not stop to enquire whether with- out the approbation of the supreme government any action of that body could have that effect, but conceding that it could, these proceedings were not g^uchj^in my opinion, to ^ prove the establishment of an organized pUeblo within the limits defined in the decree of confirmation. ** The proof of the establishment of the pueblo consists chiefly, if not exclusively, of the record of the proceedings of the Territorial Deputation on the 3d November, 1834. The dispatch of Governor Figueroa, of the next day, designated as exhibit No. 1, annexed to the deposition of M. G. Vallejo, [ 28 ] and the document marked Exhibit No. 18, known as the Jgr iamorano document. All these are recited in the opinion of the majority of the commission filed in the case. *' From the examination of these documents I am of the opi- nion that the organization which took place at the Presidio in the fall of 1834, under the action of the Territorial Deputation of November 3d, was a temporary organization for the gov- ernment of the entire northern portion of the territory, and not the establishment of a municipal organization of a town within the limits described in the decree of confirmation. I do not esteem it necessary here to go into a protracted argu- ment on this subject, but the following, among other consid- erations tending to corrborate the view, may be stated : ** 1. The record of the proceediags of the Territorial Deputation, which is the basis of the organization, whatever was its character, does not establish or direct the establish- ment of ja pueblo or town, but simply directs that the partido (district) of San Francisco proceed to the election of a con- stitutional ayuntamiento to be established in the presidio of that name, &c. "2. The ayuntamiento so to be established, was by the order of the Governor Figueroa, transmitting a copy of these proceedings, with direction to proceed to the election of the proper ofl&cers directly stated to be not the exercise of merely municipal jurisdiction, but of political functions, and th^s not merely within the area now claimed to have been em- braced in the pueblo, but over the whole northern portion of California, where Gen. Vallejo, the commandant of the Pre- sidio, had previously exercised this authority. " 3. The testimony of the witnesses shows that in fact the ayuntamiento did exercise its authority not merely over this limited space, but over a tract of country extending many miles south of the present city of San Francisco, and embrac- ing a large tract of country on the opposite side of the bay, and almost an indefinite extent to the north of it. " It is argued that the existence of an ayuntamiento neces- 'sarily implies the munixiipal organization of a town over [ 29 ] which it presides. In the original use of the word in ancient Spain, it is probably true that ayuntamientos existed only in such pueblos, or towns. But the constitution of 1812 was the commencement of important changes in the internal econ- omy of Spain and her provinces, and under this and the subsequent laws of 1812 and 1813, and more especially under the Mexican law of 1830, the character of these organizations in Mexico was greatly modified. However, it might have been before, the powers and jurisdiction of an ayuntamiento might certainly, under these, embrace a large extent of coun- try, and include within their limits many parishes and pueblos. Their defined duties and powers were such as pertained, at least many of them, to the supervision of rural districts, as well as to towns or cities. We know, moreover, that the northern portions of California, wich its sparse population, was generally governed by officers or tribunals, whose duties and powers were anomalous in their character, and enlarged to meet the exigencies of the country. Thus, down to the time of the organization of the ayuntamiento, Gen. Vallejo, the military commandant of the Presidio, exercised full civil authority over that immense region of country. And thus Gen. Sutter, at a subsequent period, acted as judge of the entire Sacramento district, with powers understood to be ample, but which were both extraordinary and undefined. We should not be surprised, therefore, if it should appear that the new orgauization made to provide for an emergency, should be found to impose on the newly established tribunal a diff*erent or more enlarged jurisdiction than usually apper- tained to tribunals elsewhere bearing the same name. " The evidence shows that at the time the ayuntamiento was established there was no considerable settlement, or town within the limits specified to require a municipal organization and with the exception of the military forces stationed at the Presidio, there were very few inhabitants established there. The first house was not built at Yerba Buena until after this period, nor is it shown that any effort was made subsequently to build up a town, having for its centre the [ 30 ] plaza of the Presidio, with its streets radiating therefrom in the usual manner of constructing Spanish or Mexican towns." §50. And again Mr. Commissioner Felch says in another place, the dispatch is presented as evidence of two facts : " First, that the organization of the ayuntamento was the establishment of a municipal corporation or pueblo, and secondly, that the lines designated therein and previously recommended by Gen. Vallejo were adopted by the deputation as the boundary lines of the pueblo. " Gov. Figueroa had not the power to establish a pueblo or to fix the boundaries thereof or to make an assignment of lands for its public uses. His decree to that effect would be of no authority. The deputation alone had the power to take the initiation in this subject." ' 51. "And it must be presumed" continues the opinion, *' that the ayuntamiento did its duty in marking out bounda- ries as directed, especially as they immediately commenced making grants of the lands." 5 Cranch, 242 ; 3 Wheat. 594; 8 Peters, 320. §52. The foundation of this beautiful superstructure, raiscid by presumption, is overthrown by the cons?ideration, that no direction was given to mark out boundaries, as the opinion erroneously supposes. This has already been shown. But if it were otherwise, this doctrine of presumption does not apply, and the authorities cited do not sustain it. The first case cited in the opinion is Taylor vs. Brown, (5 Cranch, 234, 242.) The complainants claimed through a younger land warrant and patent, but older survey, under the land laws of Virginia. The defendants held the elder warrant and patent, but the younger survey. The counsel for the defendants contended that it did not appear that the warrant for the survey under which the complainants claimed, ever was in the hands of the surveyor, and that without his holding such warrant, his survey was invalid. On the other side, it was said not to be necessary that the warrant should have been in the hands of the surveyor. But, if it were necessary that he should have had it in his hands, the presumption arising r 31 ] from his having made the surv^ey, was strong that he had the warrant, and was sufficient proof of that fact, until the contrary were proved. Chief J. Marshall, in noticing this objection says : (p. 241, 242,) " It is said that the warrant was not in possession of the principal surveyor when the survey was made." . .k "The answer given to this objection is conclusive. Thte warrant is an authority to, and an injunction on, the surveyor to lay off 2,000 acres of vacant land which had not been surveyed by order of council and patented subsequent to the proclamation. Whether acts under this authority are valid or void, if the authority itself be not in possession of the officer is perfectly unimportant in this cause ; because the court considers the certificate of the surveyor as sufficient evidence that the warrant was in his possession, if in point of law it was necessary, that it should be lodged in the office* That certificate is in the usual form, and states the survey to have been made by virtue of the governor's warrant and agreeably to his majesty's royal proclamation." It will be seen at once that this case is no authority to sustain the position for which it is cited. If it were asked to presume that the ayuntamieato held the order of Gov. Figueroa — supposing such order to have directed what is asserted — from the fact proved to exist, that the ayuntamiento had actually marked out the boundaries, the case of Taylor vs. Brown would have been an authority — but it is no authority whatever to show that it may be presumed that an officer, or political body, did its duty because directed to do it. Does anybody suppose the doctrine of presumption is carried so far, that the Court, in Taylor vs. Brown, would have presumed that the surveyor had made the survey, from the fact of a warrant having been issued to him directing him to make if? Yet, the facts in the case must be thus transposed before it can be an authority upon the point cited. •♦) § 53. The next case cited in support of this doctrine of presumption, is Craig vs. Radford, (3 Wheat., 5 94.) The presumption in this case, as in Taylor vs. Brown, was of the r 32 ] "warrant being in the hands of the surveyor, from the fact of the survey — the facts being the same as in Taylor vs. Brown, and arising under the same law, and the decision of the Court being based upon that case. § 54. The next and last case cited, is that of Stringer vs. Lessee of Young, {^6 Pet., 320.) This case neither decides nor treats of the doctrine of presumption, in any respect } and is no authority either way, upon the point under discussion, unless a bare reference, in the decison of the Court, to the case of Taylor vs. Brown in support of another point, be deemed authority in support of this doctrine of presumption. § 65. How much more in accordance with law are the re- marks of the Ch. J. in Leese and Vallejo vs. Clark, (3 Cal. R., 25, 26,) speaking of the regulations of the supreme gov- ernment of Nov. 21, 1828, he says, "To these regulations this Court can alone look, and by them every grant must be determined. Had we the power to discriminate, its exercise would be more dangerous and productive of more injustice than the total inaUilty to go beyond them." *'If the officers of the Mexican Government, to whom was confided this trust, exceeded their authority or neglected the solemnities and formalities of the law, this Court is bound to take notice of it, and can not shield those claiming under such titles from the necessary consequences of ignorance,^ care- lessness, or arbitrary assumption of power." § 56. And again, " But that these requisitions must be fully complied with, this Court has no doubt, without which a sev- erance of the land from the public domain, and a rigid ad- herence in all other respects, the title did not pass to the grantees, but remained in the government of Mexico." § 57. But, upon principle, who ever heard of a party being presumed to have done an act barely because he was required or directed to do it ? A party is required to prove that he has done the act which the law, or his superior authority has directed him to do, when the doing of that act is neces- sary to sustain some right which is claimed. The law would hardly be guilty oi doing so foolish a thing, as to direct an [ 83 ] act to be done, and then presume that it had been done, from the fact, of its having directed it. § 58. But, it seems that this presumption may he indulged in, " especially as they (the ayuntamiento,) immediately com- menced making grants of the lands." The ayuntamiento was elected in December, 1834. The first grant of land, other than by special order of the government, was made in 1839. Thus, four or five years, at least, intervened between the elec- tion of the ayuntamiento and the making of the tirst grant. I am not so much astonished at the fancy which can indulge in such a presumptioUj as to the ownership of land, when I find that it has the faculty of condensing four or five years into " immediately." The reason for my asserting that the first grant was made in 1839, is as follows: It appears by the certificate of Wash- ington A. Bartlett, who then filled the ofiice of alcalde,- by appointment from Captain Montgomery, dated August, 1846» that he " applied to Don Jose de Jesus Noe, the alcalde of said town, under the late government of California, to surrender all public ai chives and documents, when this book (the one on which the certificate is endorsed) was given up, as con- taining the onlij reco7d of the grants of lots in said town of Yerna Buena," § 59. This book purports to contain the record of all the grants made in the pueblo or mission of San Francisco, and the place called Yerba Buena, at any time prior to the date of its delivery over to the American authorities. The dates of grants commence in 1839, and end with the 6th of June, 1846. It commences by recording the authority of the functionaries by whom the grants are made, and, for this purpose, has three titles or headings following each other successively. The first is as follows j *' Book in which are evidenced the possession of solares in the point (punto) of Yerba Buena, in virtue of the orders (lo dispuesto) of the Departmental Government." In the second : "Are evinced those granted in the estab- lishment of dolores in pursuance of the authority applied 5 [ 34 ] for (Jo pedido) by the prefecture of the district to the Govern- ment of the department, of which I have cognizance, as evidenced by the official note which is found on page 2." The third gives the " Formula, showing the mode in which possession of solares to form habitations, have been given to the citizens {vecinos) of the jurisdiction of San Francisco de Asis." The official note referred to, which was written by Jose F. Castro, acting as prefect ad interim, states, that he had received from the secretary of government an official commu- nication under* date of 16th of April, 1851, reciting that when the prefect Don Jose Castro made a visit to the north, he bore with him instructions from the government on vari- ous subjects, and, among others, it was ordered that solares might be granted to individuals in the establishment of Dolores, but they must not exceed fifty varas, which disposi- tion of the government was now renewed in consequence of the official communication of the prefecture, dated the 6th of the same month, which his excellency (the Governor) had seen. § 60. In this book are recorded fifty-five grants, in all, in- cluding those which had been made at the Mission and Yerba Buena ; of these, tea were made either directly by the Gov- ernor, or in pursuance of his especial order — four or five were made in pursuance of a special decree of the prefect made in each case. These grants made by the Governor and the prefect, are as well of fifty vara lots, as of hundred vara lots, and some of them are also for lots situated more than two hundred varas from the beach. Two of the grants were made by the Governor on the 22d April, 1846. The remain- ing grants appear to have been made in virtue of the author- ity given by the Departmental government, which is referred to on the first page. One of the grants made by the Gov- ernor, was in form of a license to erect some sort of machin- ery, ar.d the decree of concession contains these unequivocal ■^ords respecting the property in the land : — " It being un- derstood, that as soon as the said solar shall be disoccupied [ 35 1 by the machine referred to, it shall remain to the benefit of the nation for the uses convenient. ^^ It will be observed,^ also, that no mention is made in this book of any town or " pueblo,^^ although reference is frequently made to a plan. The place, in which the grants this side of Mission Creek are made, is designated and identified as the point {punto} or {parage) locality of Yerba Buena. But, as another reason against this presumption that the ayuntamiento marked out the boundaries is that, as late as May 1st, 1844, there were no fixed and determined limits, for, in a grant made on that day by Governor Micheltorena to Francisco and Ramon Haro, of the Potrero of San Fran- cisco, the following language is used : '' I have resolved to permit them to occupy the Potrero mentioned, subjecting themselves to the measurement which shall be made of the egidos of the establishment of San Francisco." (Wheeler's Land Titles, page 12.) The author cited very justly remarks, (id. page,) " By this it appears the lands of the town had not been marked out." § 61. It is true, the opinion states, or rather would have us infer, that the first grants by an alcalde were made in 1835. But it cit^s no authority for the assertion, and it must be pre- sumed, that it is an unintentional mistake. It is true, it also states, that, in the same year, Jose Joachim Estudillo ap- plied to the Governor for a grant of 200 varas square. But, did he get it 1 The opinion itself shows that he did not. And, besides, it is highly improbable that any grants were made by the ayuntamiento on its sole authority before 1839. For, it was not until the spring of 1839, that any lots were laid out, or any plan for a settlement formed. In the spring of that year. Governor Alvarado directed the alcalde at the Mission, Francisco Haro, to cause a survey of Yerba Buena to be made, and to lay out streets and lots, and in the Fall of the same year, under this direction, Jean Vioget, a surveyor, made the first plan and survey of Yerba Buena. That survey took in only the small portion of San Francisco, which lies between Pacific street on the north, Sacramento [ 36 ] street on the south, Montgomery street on the east, and Dupont street on the west, with three 100 vara lots on the west side of Dupoot street, and two 100 vara lots on the south side of Sacramento street, in addition — being equal in the whole to about eight or ten blocks of the present city. In fact, no grants were made by the ayuntamiento, at any time, without the express authority of the Governor in each case, though two of this latter character were made, one to Jacob F. LeesG, dated May 2ist, 1839, and. the other, about the same date, to Wm. A. Richardson. § 62. After stating that the alcalde was the proper person to preside over the ayuntamiento, and was the executive offi- cer to carry into effect its resolutions and orders, the opinion proceeds as follows : " Hence all grants of lots made in San Francisco, from the beginning of 1835 to the latter part of 1839, were made and signed by the alcalde — he being the first member, president, and executive officer, of the ayuntamiento. Some of his grants read : " By virtue of the authority in me vested, by the most illustrious ayuntamiento, I hereby grant," &c. ; others simply, '^ By virtne of authority in me vested, I hereby grant," &c. " All grants of lots made," &c. The word " a//" embraces two — as we have before seen that only two grants were made during the existence of the ayuntamiento, and that each of these was made upon the express and special authority of the Governor, and the phrase in the succeeding paragraph, "Some of his grants read," and the following correlative phrase, " others simply," must be taken as limited to the two grants above spoken of. But this passage last cited contains another error of the same nature, as numerous others, which have been pointed out in the preceeding pagesr—that is to say, in hold- out the idea, that the sole authority of the alcalde to convey landSj was derived from the ayuntamiento, as the proprietor thereof— whereas, we have already seen, and shall establish, before we conclude, beyond the possibility of doubt, that the alcalde acted as the mere servant or agent of the General Gov- [ 37 ] emment, in carrying into execution, in the distribution of lands, the orders of the Governor to the Jlyuntamiento. In other words, the Governoi- having directed the ayuntamiento to make a particular grant, the execution of such orders of the Governor, was carried out by the alcalde, as the proper ofl&cer of the ayuntamiento for such purpose. § 63. "In 1839, it was thought by the governor, that the number of the population in San Francisco, being greatly reduced by the secularization and partial ruin of the Mission, was not sufficient to authorize the maintenance of an ayunta- miento, and juezes de paz were elected in place of that body, as directed in the law of March ITth, 1837." „„ This substitution of justices of the peace in place of ayun- tamientos, instead of being made for the reasons set forth in the above paragraph, was* made for a much better reason, that is, because the whole system of government by ayunta* mientos, was abolished throughout Mexico, by the law referred to of 1837, and justices of the peace charged with the performance of their duties. *' The number of the popula- tion of San Francisco greatly diminished." Why, at the establishment of the ayuntamiento, there had not, as yet, been built the first house in " San Francisco," nc r was any effort made during the continuance of such body, to build up a town ; and, at no time, did the population exceed, at farthest, the number of half a dozen. It was, to say the least, very unfortunate, that it should have been found necessary to change the government by rea- son of a great reduction in the number of such a population. I have treated this paragraph, as if the opinion intended — as it clearly does — to speak of a great reduction in the popula- tion of that portion of territory which now constitutes the city of San Francisco — for the general context of the opinion clearly confines this expression to this definite locality, instead of permitting the extension of it to the whole partido. But, should it be meant by the word San Francisco, to desig- nate partido, the remark is equally incorrect, for I have yet to hear that there was any great reduction in the population [ 38 ] of the partido, or, if there was, that that had any influence in the change of the law. I should not have noticed this mis- take at such length, or perhaps at all, were it not for the fact, thiit this, like many other little things, noticed as errors in this opinion, show that the apprehension of the entire Mexican system from beginning to end, through all its ramifi- cations, and changes, is erroneous, and rests, for its basis, upon an utterly fallacious hypothesis. § 64. *' These juezes de paz commenced making grants of 100 vara lots, in the same manner as had been done by the alcalde. But a question now arose, whether the justice could, under the law of 1837 (vide acts 180-180), exercise that power in place of the alcalde, without a special ordinance of the departmental junta. To remove this doubt, a special ordinance was passed, and communicated by the Governor through the prefect, but limiting the grants by a justice, to 50 varas square. The original of this communication is in the archives, and bears an et^rlier date than the letter of the sub-prefect, printed by Wheeler, (p. 15)." § 65. As above seen, by the new constitution of 1836, and the organic law of March 20, 1 837, the ayuntamiento was abol- ished, and its functions devolved on justices of the peace, appointed by the governoi*. on the recommendation of the prefect of the district. § 66. These justices of the peace had the same authority per se^ which the ayuntamiento had, to grant lots, that (s, none at all — the whole power being derived from the gov- ernment. And I submit, that it looks rather' strange, upon the hypothesis of the opinion, that a question should be made whether justices of the peace could exercise the power of granting lots? That hypothesis is, that the pueblo or town was the absolute owner in fee of the lands. If so, why should thare be any question about the power of the justices ? And if such a question did arise, what right had the departmental jun- ta to interfere, by special ordinance or otherwise, in the dis- position of property, the absolute title of which was vested in the [ 39 J toion ? For, vested rights were protected under the Spanish and Mexican system, as sacredly as they are under English and American law. And again, upon the hypothesis of such ownership, by what authority did the departmental junta interfere, by restricting grants by justices of the peace to 50 varas ? There is no way of answering these questions and of solving these difficulties, upon the hypothesis of ownership of the lands in the town, as claimed in this opinion in Cohcu vs. Raisin — whereas, upon the supposition that such lands still constituted a part of the national domain, and that these offi' cers, whether governors, ayuntamientos, alcaldes, or justices of the peace, were but the agents of the government in the dis- tribution to actual settlers of its unoccupied and undisposed of lands, according to the positions maintained in Wocdworth vs. Fulton^ this whole course of proceeding is natural, plain, sat- isfactory, and perfectly adapted to attain the ends in view. § 67. " The grants made by the justices of the peace at this- period, are generally, By virtue of the superior order of the departmental government, I hereby grant," &c. As suggested in the last section, if these lands had been the lands of the town, or other than part of the national domain, the justices of the peace should and would have made their grants by virtue of some other authority than that of the departmental government — that is, they would haye obtained their authority, and so expressed it, from the town^ the owner of the lands. § 68. The opinion then proceeds to state that in 1843f Governor Micheltorena changed the municipal organization of San Francisco, and directed the election of alcaldes ; that these alcaldes took the place of the former ayuntamiento^ "but exocised all the powers conferred on the prefect." 1 would respectfully ask, whence is derived the authority for the assertion that alcaldes exercised all the powers conferred on the prefects? The opinion cites none, and I am no# aware that any such exists. § 69. And this municipal organization, says the opinfon,. continued until the occupation of the country by the United [ 40 J States — " hence the grants made from the beginning of JSii, are made in the name of and signed by the alcalde." Some grants were made during this period by the alcalde, anc^ some were also made by the governor — two of the latter as lalte as April 22d, 1846. § 70. I have thus traced this opinion down to the time of the occupation of California by the American army, and I have had occasion to notice some of the numerous errors in which it abounds. We now come to a new era. On the 7th of July, 1846, possession was taken of Monterey, and subsequently of the rest of the territory. The President of the United States, as commanderin chief of the array, directed his subordinate military officers to organize a civil government, for the pur- pose of preserving the domestic peace and quiet of the country, and preventing a state of anarchy. This T^as no more than is done in all cases of an armed occupation of a country, in the condition in which California then was ]- for the old government being broken up, a new one was abso- lutely necessary to subserve the pur])oses of police, and pre- vent or punish the commission of crime. The office of alcalde of San Francisco was filled by an American citizen, and continued thereafter to be filled by an American, until the office was finally abolished in 1860. These officers, as well as all others, except such as were appointed by the American military governor, or by the President of the United States, were elected by American citizens, settled or stoppings either as soldiers or otherwise, at the place called Yerba Buena. § 71. The opinion, after noticing some of the facts in the last paragraph, sums up the result of the whole investigation, as follows : " From this summary we must infer, First : That all grants made by the alcalde, from the beginning of 1835 to near the end of 1839, were made by the authority of the ayuntamiento." From what part of the "summary "is this inference drawn ? I have shown before, that the facts from which this inference is drawn, are all without any ex* ••"-•• [ 41 ] istence, except in fancy, and can be only seen by the eye of faith. For, it has already ai)peared that only two grants were made during the existence of the ayantamiento, and both of these upon the express application to, and order by, the government. The second inference from the above summary, " that the grants made by justices of the peace, from 1839 to 1843, were made by authority conferred on them in the absence of alcal- des, by the departmental junta, in virtue of article 180, of the law of March 17th, 1837," is not open to objection after sub- stituting the word " government " in the place of the word "junta;" for, we have already seen that some of these grants were made by virtue of authority derived from the governor— ^ some from the prefect. § 72. The third inference drawn is : " That the grants made in 1844, 5, 6, and beginning of 1847, by alcaldes, were made by virtue of their office, as constituting the municipal government of this pueblo, ilnder Governor Micheltorena/'s Proclamation of November 24th, 1843." This inference is wholly without authority, either in the opinion or out of it. From what part of the ^' summary " is this inference drawn? From that, which states that alcaldes took the place of the former ayuntamientos ? If so, they must have derived their authority to grant from the same source from which the ayuntamiento derived it ; so also, if they exercised the pow- ers conferred on Prefects, they must have derived the power to grant from the same source as the Prefect — that is, from the laws, and from the departmental government. § 73. The fourth and last inference is : " That grants made by alcaldes, after the 15th of September, 1847, must be pre- sumed to be made by the authority of the ayuntamiento or council, so long as that body existed." This inference is a begging of the whole question in issue ; for, it implies and presupposes that this ayuntamiento had the power to confer such authority — the very position which is denied in sub- stance in Woodworth vs, Fulton, and is controverted here ; for, my position is, that after the Americans took posseBsion of 6 [ 42 ] the conntry as a military conquest, neither had the alcaldes the power by rirtue of their offices, nor could the ayuntami- ento, nor the military governor, nor even the President of the United States, confer upon the alcaldes that power — and, this proceeds upon the ground, that the lands were part and par- cel of the national domain of Mexico, and, as such, could not be granted. § 74. The opinion then proceeds : "I come now to the par- ticular consideration of the effect of grants made after the military occupation of this country, by the forces of the United States.'^ Yet, in no subsequent portion of the opin- ion is this question " considered." It is true, the opinon af- terwards asserts a doctrine from which it is necessarily im- plied, that a state of war and a state of peace are the same thing— that an inferior officer of a conquering army may sell or give away, to his fellow soldiers or fellow citizens, the private real property of the vanquished, without any orders from his own government, or even from his superior officer in command ; that not only the right of confiscation of the lands of a \ anquished enemy, — a right, which authors on interna- . tional law declare has never been exercised since the Nor- man conquest in the eleventh century, — exists, and may be ex- ercised at the present day, by a conquering army in the temporary occupation of a province of the vanquished, — but that this right may be exercised by every petty officer, with- out the authority of his commander-in-chief. No authority is cited in support of so novel a doctrine, nor is any endeavor made to sustain it by reasoning. It rests on bare assertion, and that is called " coming to the consideration of the sub- ject." I think I could satisfy the Court, how widely the opinion is mistaken in this respect, provided international law should be admitted to have any binding efficacy in this State ; — but this branch of the subject is not involved in the facts of the present case, and I therefore pass it by, express* ing, at the same time, the desire, that, on some future occasion, an opportunity may be presented of " considering " that branch also . In the present case, I am limited to the question of ownership or no ownership of the land in the town. [ 43 ] § 75. The opinion, then, after declaring itself not bound by the doctrine of stare decisis — a point, which I shall have occa- sion to urge upon the attention of the Court in a subsequent portion of my argument, proceeds to " consider " the case of Woodorth vs. Fulton. " In that case,^' it says, " as affecting the present question, the Court assumed, — first, that San Francisco was not a pueblo." § 76. I would be pleased to learn from what source the opinion derived the information, that the case of Woodworth vs. Fulton assumed that San Francisco was not a pueblo. It certainly is not derived from the case itself, and, from what- ever source derived, it is not correct. It is a mistake, to suppose that the case of Woodworth vs. Fulton assumed any Buch thing. It merely declared, that it did not appear, from the proof in the case, that there was a pueblo, or, if there were, what its boundaries were, — facts, of which, is there said, the Court could not legally, and ought not to, take ju- dicial notice, (see,.. Cal. Rep., 306-7,) — and furthermore, it was a matter of perfect indifference in the decision of that case, as it is in the correct decision of every case, whether Yerba Buena or San Francisco was, or was not, a pueblo. The true question is, not whether there was a pueblo or whether there was not, but whether the pueblo, town, village, hamlet or set- tlement, or whatever other name you may choose to give to a small collection ef settlers, was the owner of any land ; and the correct position of the Court in Woodworth vs. Fulton is contained in what is stated in the opinion, as being next as- sumed, that is, " that conceding it (San Francisco,) to be a pueblo, there was no legislation, general or special, which vested in it the title to land." That was the position relied upon by the Court, and I have yet to learn that that position has been shaken or overturned by any thing contained in the opinion of Cohas vs. Raisin. On the contrary, that position has been sustained by every lawyer, who has ever examined the question, by the unanimous decision of the board of United States Land Commissioners for California, by the judicial decision of the Circuit Court for this circuit — and finally by the Supreme Court of the United States itself. [ 44 ] § 77. After noticing a third positian, which it asserts was assumed in Woodworth vf. Fulton — but which I here pass by as not inyolved in the present case — the opinion proceeds as follows : " In the subsequent case of Reynolds vs. West, (1 Cal. Rep., 323,) the opinion was giyen by the same judges yho decided Woodworth v$. Fulton. The question was as to the validity of a grant in San Francisco by a Mexican alcalde, before the war. The title was sustained, and of course ope- rated as an abandonment by the Court of the ^rst two grounds, I have stated, as taken in the case of Woodworth v$. Fulton J^ Now, does the opinion understand the cases of Woodworth vs. Fulton an(J Reynolds vs. West, or is it guilty of a willful misrepresentation of the two caseSj or must it ^ife under the imputation of an utter and disgraceful igno- rance, as well of Spanish and Mexican, as of international law ? The case of Reynolds vs. West is clearly misunderstood, or misrepresented. The impression is sought to be made that the Court there decided, that the grant in question was absolutely valid, and unimpeachable under all or any circum- stances ; whereas, they decided no such thing. They held that, as nothing appeared in the case to show want of power in the officer to make the grant, he must, under the decisions of the Supreme Court of the United States, be presumed to have had the authority. And this presumption was indulged in solely upon the ground, thpt he was an officer of a foreign government, and empowered by such government to grant or distribute to actual settlers, small parcels of the public do- main. So far fronoL the case of Reynolds vs. West, *' operating ag an abandonment" of any point decided in Woodworth vs. Fulton, it is an express re-affirniance of the latter case ; for, the very point upon an American alcalde's grant, which was decided in Woodworth vs. Fulton, again arose in Reynolds vs, We^f, and was again decided the same way. The two cases are in perfect harmony ; and nothing but a misunderstanding of those two cases, or a design to misrepresent them, could have induced the assertion, that any thing contained in the case last decided, operated as an abandonment of any point [ 45 ] determined in the first. Both cases proceed upon the prin- ciple, that the land in question constituted part of the na- tional domain of Mexico — that, before the war, while the country was subject to Mexican law. any Mexican officer, duly authorized by the law for such purpose, might dispose of por- tions of the public lands — but that, upon the conquest of the country by the Americans, the Mexican laws relating to the sale or distribution of the public domain ceased, and that, neither an American alcalde, nor any other officer, had au- thority, after such conquest and after the public lands had passed to the United States, either under the Mexican law, for that, so far as regards the disposition of the public lands, had been abrogated by the conquest, or under a law of the United States, for none such existed authorizing the disposal of any public lands in California, to give, grant or sell any portion of such lands. What then must be thought of an opinion which, either through carelessness, design or igno- . ranee, not only mistakes the facts of the very case in which the opinion is delivered, but misrepresents former decisions of this Court, for the purpose of sustaining a hypothesis, which is countenanced only by such as are equally ignorant of the Mexican laws, and of the Mexican language, and which is discarded equally by lawyers and Courts who have taken the pains to inform themselves upon the subject. § 78. The opinion then proceeds—" I have shown before, in this opinion, that Mexican towns were invested with property in lands ; that by the Mexican decrees for the secularization of missions, it is shown that San Francisco was ^ mission ; that the missions wjcre required to be con- verted into pueblos." § 79. Of what avail is it to show " that Mexican towns were invested with property in lands?" The question is not, whether Mexican towns were invested with property in lands* as a general or as a partial rule, but whether the pueblo, town, or city of San Francisco in particular, was invested with property in the identical land in controversy. American towns, as a general thing, are invested with property in [ 46 ] lands ; but it would be a strange deduction from this circum- stance, to infer that all American towns were invested with lands, or that any town m particular was invested with the title to a specific lot which might happen to form the subject of litigation. Would it be a legitimate legal inference from the fact that individuals are invested with the title to real estate, that A, or B, or C, was the owner of a specific lot in dispute ? or, from the fact that corporations are generally the owners of property, that a certain maufacturing or com- mercial corporation was the owner of a specific article of property? Yet all these must be legitimate deductions, and correct legal conclusions, according to this quotation from the opinion in Cohas vs. Raisin. § 80. It seems, however, that San Francisco was a mission. What San Francisco? or where? It is true there was a mission of San Francisco, but that was situated in a place different from what is claimed in Cohas vs. Raisin, as the pueblo or town of San Francisco. But, waiving that, I ask, as I have asked over and over again, how it helps the con- clusion in the opinion, if San Francisco was once a mission, and had been changed into a pueblo ? Neither fact proves, or even tends to prove, that either the mission or pueblo was the owner of any land. § 81. After recapitulating that lands were to be granted to new pueblos, by the Law of August 9th, and that directions were given for the formation of an ayuntamiento of San Francisco, with directions to fix its boundaries — positions which I have already examined, the opinion proceeds : " It will be remarked, from what has preceded, that these are not grants of any portion of the public domain, made by officers of the conquering power, but are grants of municipal lands, made by the regularly authorized municipal authori- ties, under the laws, usages, and customs of the country, which were not changed, or interfered with, by the military or de facto government, organized under the laws of war.'' § 82. Now, I would like to be informed from what portion of the opinion, "which has preceded," it will be, or can, [ 47 ] , with justice, be " remarked," that the lands spoken of were " not portions of the public domain," but were " municipal lands V It has not been shown, nor been attempted to be shown, that the government had ever parted with its right to these lands ; it has not been shown that any grant had ever been made of them, or any part of them, to the pueblo or town of San Francisco, nor has it been shown that there was any '* legislation, general or special," which conferred the title to these lands upon the pueblo or town of San Fran- cisco. The only thing from which it can be '' remarked," that these lands had ceased to form a part of the public domain, is, that the opinion says so ; this is the sole authority we have for supposing them to be " municipal lands." We have seen a great deal, to be sure, from which it may be re- marked that pueblos might become the owners of lands— that they became such owners, whenever the government, through the proper channels, chose to confer upon them such ownership — and that, after they had acquired such ownership, they had the right to dispose of the lands, subject to the regu- lations of law — and we have heard a good deal, besides, of directions having been given to mark out the boundaries of a town^— but I defy the most scrutinizing eye to discover a single sentence in that portion of the opinion, which has " preceded," or in that which is to follow, from which it can be legally or properly inferred or " remarked," that any por- tion of the land within the limits of the pueblo^ town, or city of San Francisco, had ceased to form a portion of the public domain, and had become municipal lands. And here is the great and fundamental mistake, upon which this opinion is raised. It assumes, without proof, that these lands had been severed from the public domain and reduced to private ownership. This, however, is begging the entire question. This is the very point in dispute. § 83. " It will not be denied," says the opinion, *' that the pueblo retained, dui'ing the war, all its rights to municipal lands, which had been conferred upon it previous to the war." Of course, no one will deny that. But the question [ 48 ] again recurs, what rights to municipal lands had been conferred upon it previous to the war ? The opinion has not yet shown that any rights to municipal lands, or any other lands, had been conferred upon, or acquired by, the pueblo or town of San Francisco, previous to the war. Or at any other time. And, for this defect of proof, the best of reasons exists — no rights to land had ever been conferred u^pon it. § 84. "And," continues the opinion, '* as all grants of land made to it, must have been in full property, th6 right to alienate was incident to ownership." Another assumption, that grants had been made to the town, wher6as, in fact, no such* grant ever was made ; and there never has been pro- duced, either in this opinion or out of it, one particle of evi- dence tending to estabb'sh that any grant of lands had ever been made to the town. But, if such grant had been made, it seems, it " must have been in full property." Exactly the reverse of this is the fact. No grants evei* were made to any town in Spain or Mexico in full property, with the free right of alienation. On the contrary, grants to towns, when- ever made, were made for specific purposes, and conferred upon the town no more than the usufruct — and the pueblos or towns could, in no case, alienate such lands without per- mission of the government. § 85. Th6 rest of the Opinion is taken up with "consider- ing" the authority of American alcaldes in San Francisco to alienate the lands assumed to have been own6d by the town. But, as I have before remarked, no question arises upon their right to alienate in the present case, and I therefore pass over this portion Of the opinion, barely observing, that the right of American alcaldes to alienate, falls, of course, with the fall of the assumption of ownership of the lands by the town. I, now, draw near to the end. § 86. " We have," it says, " come the conclusion, and so announce as our decision : First : That by the laws of Mexico, towns were invested with the ownership of lands: Secondly : (Which treats of the power of alcaldes to alien- ate, and is, therefore, immaterial in this case): [ 49 ] Thirdly : That before the military occupation of California by the army of the United States, San Francisco was a Mex- ican pueblo, or municipal corporation, and was invested with , title to the lands within her boundaries: Fourthly : That a grant of a lot in San Francisco, made by an alcalde, whether a Mexican, or of any other nation, raises the presumption, that the alcalde wa;} a properly qual- ified officer, that he had authority to make the grant, and that the land was within the boundaries of the pueblo." § 87. This last quotation ends the opinion, so far as regards the point under discussion in the case at bar ; and these con- clusions are but reiterations of positions, which I have already examined in the course of this argument, and which I have shown to be utterly destitute of any foundation for support either in, or out of, the opinion. § 88. To sum up, then, a portion of the illogical and illegal views taken in this opinion : it assumes, without a scintilla of proof, the following several positions : First: That there was an organized town or municipal government, extending over, and confined to, the particular locality now known as the city of San Francisco : Secondly : That a grant, or that grants, of definite parcels of laud, had been made by the Mexican government to such town : Thirdly: That such grant or grants were of lands situate within the present limits of the city of San Francisco. Fourthly : That such grant or grants embraced all the lands within the limits of the present city. Fifthly: That any grant made by an alcalde was within the boundaries of the assumed Mexican town or pueblo. § 89. Now, it would seem, that any j^erson endowed with capacity to distinguish between questions of law and questions of fact, would see that the several positions above mentioned, which are assumed by the Court as matters of law, and de- cided as such, are strictly and palpably questions of fact, determinable like other questions of fact. / I have now reached the further side of this " Stygian ]^^'.r^ [ 50 3 of reasoning. I havo shown that it is one undistinguished mass of mistakes in fact, or of errors in law ; that it is made up of assertions without proof or authority, and of conclu- sions without premises — that it distorts facts and crucifies legal principles — that it assumes the province of the legisla- tor, in creating the law, while professing to perform the func- tions of the judge in interpreting and administering it. It is a melancholy subject of reflection, both for the people of this State and for the citizens of other States having interests Jiere, that rights to property, of vast magnitude, are made i,o depend upon so flimsy a texture. § 90. I have, thus far, insisted that this opinion was, at the Jtimc it was delivered, contrary to the settled law of the Btate ; and also that, in and of itself, it is entitled to no con- sideration. I now proceed to show that it is in direct opposition to the unanimous opinion of the Board of Land Commissioners for this State. It is scarcely necessary for me to add that, if any persons have ever had the means of arriving at a correct conclusion on the subject under discus- sion, they are the gentlem^en who constituted that board. Every particle of proof, every document, every law, ordinance* -or regulation, which could tend to establish the ownership of 3an Francisco in any lands, was produced before, and con- sidered by them. Able counsel exerted their talents, inge- nuity, and eloquence, to sustain such ownership ; but the board, ^fter a thorough investigation of the whole policy of Spain and Mexico,- with every source of information at their command, and after the most mature deliberation, unani- mously decided ^n exact conformity with the conclusions arrived at in the case of Woodworth vs. Fulton, and diametri- cally opposite to the assumptions of the opinion in Cohas vs. Raisin, § 91. It is true, the board unanimously affirmed the claim of the city of San Francisco to certain lands ; but their deci- sion was based upon the ground, that the act of congress of 1851, gave to the city that portion of the public domain, which -was confirn?ied to it, and not upon the ground that the towni [ 51 ] city, or pueblo, of San Francisco had any claim to such lands under any Spanish or Mexican law, or by virtue of any grant from Spain or Mexico. § 92. Mr. Gom'r Thompson, who delivered the opinion of the majority of the board, discusses the subject now under consideration as follows : " It is exceedingly difficult with our imperfect knowledge of the Spanish and Mexican laws on the subject, to determine what was the precise character of the rights which the pueblos held in the lands assigned to them. The lands for propios seemed to be under the control of the municipal authorities, for the purpose of raising funds for their support and other municipal purposes. The regulations generally prescribe the manner in which this should be done. In the plan of^itie, the mode proposed seems to have been by cultivation at the ex- pense of the town — the profits being appropriated to the mu- nicipal expenses. In other cases they were authorized to lease or dispose of them in censo enfiteutico, sls in the California regulations of Aug. 1834. The egidos or common lands stood on an entirely different footing ; they were not regarded in any sense as the property of the corporation, but were set apart and assigned for the common use of the vecinos of the pueblo. " But whatever may have been the interest which the towns had in those lands, or the tenure by which they held them, it is certain that they never had such a right of property in them as would enable them to alienate or dispose of in any manner. Both the right to grant house lots or farm lots and to dispose of propios by lease or enfiteutic rent was under authority specially delegated by the government for that purpose, and revocable at its pleasure. This is proved by all the laws, regulations and instructions to which we have had access — all of which go to show that the right of property remained in the govnerment, subject to the use of the towns for the purposes aud under the restrictions imposed by the laws and regulations. Authorities might be multiplied almost indefinitely to sustain this position ; indeed we find the prin- ciple pervading all the laws of Spain and Mexico o'n the sub- ject, and uniformly recognized in their application by the authorities whose duty it was to carry them out. Elizondo, in his Practica Universal Forense, volume 3, page 109, lays it down distinctly in the following passages : ' For,' says he, * The kings, the fountains of jurisdictions, are the owners of [ 52 ] 4ll the terminos situated in their kingdoms, and as such can donate them, divide or restrict them, the same being true of their pastos, although the pueblos enjoy them, it being pre- sumed that they are conceded only so far as respects their use and administration, the property remaining in the sover- eigns themselves, so that they may limit them afterwards, en- large or restrict them, or give any new form to the enjoyment thereof; and hence it is that the pueblos cannot alienate their terminos and pastos without precedent royal license and au- thority.' " Again, volume 5, page 226, he says, 'There is nothing whatever designated by law as belonging to towns other than that which, by royal privilege, custom or contract, between man and man, is granted to them, so that although there be as signed to the towns at the time of their constitution a territorio and pertinevcias, which may be common to all the residents without each one having the right to use them separately, it is a prerogative reserved to the princes to divide the terminos of the provinces and towns, assigning to these the use and enjoy- ment, but the dominion remaining in the sovereigns them- Balvcs/ " 1'he decreee of the Spanish Cortes of the 4th of January, 1813, is in itself a full recognition of this principle. The ob- ject and intent of that law was the distribution and reduction, to private property, of all the lands previously occupied and used by the towns, and it prescribes minutely the manner in which this shall be done, and treats them throughout the whole act as public or royal lands. If these lands had been the private property of the pueblos, the Cortes would have no right to decree their sale and distribution, than they would ' have had to alienate or dispose of the private property of individuals. But it is evident from the whole tenor of the decree that they were regarded as public lands, and subject to be disposed of at the pleasure of the sovereign power. This law was probably never carried into effect in Spain ; but there can be no doubt that in common with other decrees of the Cortes, which were revived by the Spanish revolution of 1819, it was in full force in Mexico at the time her indepen- dence was established These decrees have since been repeat- edly recognized by Mexico as a part of her civil code ; and that of the 4th of January, 181B, unquestionably constituted the foundation for the power which was uniformly exercised by the Mexican authorities in California, in the distribution and granting the common and other lands of the towns, in the same manner as other portions of the public domain, except [ 58 ] that in the former ones the lands were granted subject to the canon or tax which might be imposed for municipal purposes. * The method usually adopted, when a petition for land sup- posed to be included in efridos (commons,) of a town, was pre- sented to the Governor, was for that officer to enter an order referring it to the ayuntamiento, who reported whether the lands belonged to the town, and if so, whether thej might be granted without detriment to the corporation. " If the report was favorable to the grant, it was made in thfi customary form of a colonization grant, with the condition above mentioned ; and in some cases with the additional one of subjecting the lands granted to the enjoyment by the vecinosj or the pueblo of the common right of wood, water and pas- turage. Among the numerous cases of this description, which have been presented to the commission, we refer particularly to the expedient^ in cases No. 353, Jacob P. Leese for * Punta de Pinos ; ' No. 535. Rafael Estrada for the ' llincon de las Salinas;' No. 593, Montina Castro for ' Shequel,' in which the grants were made by Governor Figueroa, 1833 ; No. 191, Chas. Walters for 'El Toro,' — grant made by Governor Castro in 1835; No. 456, Antonio Igo. Abela for * San sal Redondo,' — grant bv Governor Alvarado in 1837; and No. 427, Thomas Sanchez for * La Cienega,' — grant by Governor Micheltorena in 1843. All of these are grants of lands sup- posed to be within the egidos or common lands of the respec- tive towns near which they are situated. These grants were made at different times, extending through a period of ten years, and by nearly all the persons who filled the office of Governor during that time, and no question seems to have been raised as to the authority of the Governor to grant them as portions of the public domain ; but being situated within the corporate limits of towns they were made liable to be taxed for municipal purposes. *'By article 77 of the organic law of the 20th of March, 1837, the distribution of the common lands of the towns was com- mitted to the prefects of the respective districts. The pow- ers of those officers over the subject was considered by the board in their opinion in the case of Manuel Larios, No. 297, for lands near San Juan Bautista, in which their authority to grant those lands, as belonging to the government, was fully- recognized. "The proceedings of the territorial government in relation to the distribution of lots in the pueblo of San Francisco, are in entire conformity with this view of the question. Ibe first application of which we find any record for the giant of [ 54 J a house lot or farm lot [suerte) in the new pueblo, was that of Jose Joaquin Estudillo, referred to in the former part of this opinion, where the action of the Governor and territorial deputation on the subject is fully set out. From these pro- ceedings it is clear that the lands were regarded as the prop- erty of the nation, and as such subject to the disposi- tion of the Territorial authorities, according to the law regulating the subject, and this too notwithstanding the fact that they are expressly recognized as belonging to the jurisdiction of the ayantamiento of Sstn Francisco. The deputation accordingly reported in favor of the expediency of making the grant, limiting the quantity to that specified in the 15th Article of the Regulation of Nov. 21si, 1828. *• This reference to the regulation shows that the deputation considered that they were acting upon its authority, from which alone they derived their power to dispo^ of the public lands, and as a necessary consequence that they regarded the lands referred to as comprehended in that description. To avoid, however, the numerous applications which they silp- posed might be made for building lots in the new pueblo, they passed a resolution authorizing the ayuntamiento to make such grants within certain limits specified in the resolution. The order of Gov. Castro, of the 26th October, 1835, commu- nicating this resolution of the deputation to the ayuntamiento and directing future application for such grants to be made to that body has already been quoted, and was unquestionably the authority under which all subsequent grants of lots of one hundred varas square were made by that body or the justices or alcalde who succeeded it in the government of the pueblo. » " A careful examination of the authorities on this pointy in connection with the uniform practice under the Spanish and Mexican governments, as shown in the numerous orders, de- crees and regulations and the acts of the public functionaries in relation to the subject, est iblish clearly in our opinion the following propo. itions : — " 1st, That under the laws of Spain and Mexico no right of property in lands assigned to pueblos or towns was ever vested in those corporations by which they could alienate or dispose of them in any manner — but such assignment only conferred a right to use and occupy them in the manner prescribed by the laws, under the direction of the superior authorities. " 2d, That the right to alienate or dispose of such lands, whenever exercised by the municipal authorities, was by vir- tue of powers specially delegated to them for that purpose [ 55 ] by the king or nation in the same manner as the authority to dispose of other portions of the public domain was con- ferred on other functionaries specially charged with the subject." *§ 93. I now quote from the opinion of Mr. Commissionet Felch, who, both as a lawyer and a judge, will bear a com- parison with any in the Union. lie dissented from his as" sociates solely upon the question as to the boundaries, which should be assigned to the city of San Francisco under the Act of Congress. On all other points, particularly on the point under discussion, he agreed entirely with his associ- ates. After stati ug that " no authority of Spanish or Mex- ican law concedes to a town or pueblo all the land within its jurisdiction," he proceeds as follows : — " At the opening of the session of the Department?! Assem- bly on the 16th day of February, 1840, the following explicit language is used in the Message to the Governor of that body on the condition of the Department, while speaking in refer- ence to the town therein : ' None of said towns, with the ex- ception of Monterey, has its commons and landed property^ {eji- dos and propios) marked out, which to each of the Municipali- ties should be fixed in order to know its legal property (fun- do legal) for which reason the Government, in making conces- sions of land in the vicinity thereof granted the same temporarily waiting for such a reguLation, and regarding the same subjects, proper reports have been repeatedly asked. Your Honor- able Board however in view of all this, exercising the power conferred upon you in Part 1, of the Article 45, of the above mentioned law (thatof March 20th, 1837) and in concert with the Government will arrange what may be deemed proper/ " Here is an explicit and official statement that in 1840 n^ne of the pueblos or tgwns of California except the capital city, had had any lands assigned to them for their public uses. Six years before a plan for this purpose had been promulgated by Governor Figueroa, in whieh the municipal authorities were enjomed to proceed and obtain such assignment, but evidence is scattered every where throughout the records of the De- partment, which shows that up to the time of the conquest, no such assignment was in fact made to any of the towns. That the locality of the present City of b^an Francisco formed no exception to this statement is also directly established in my opinion by the prools in this case. The lands within the al- [ 56 J leged limits continued to be treated as other portions of the public domain. The Governor continued to make grants within its boundaries down almost to the raising of the American flag, in larger parcels as well as small lots. It is true the local authorities made small grants or rather gave possession of small lots to individuals in the vicinity of the Mission and also at Yerba Buena, but the authority under which they were made and the conditions attached to them are such as to indicate not a claim of ownership or the right of use and disposition, in any town or corporation, but that the land was still unembarrassed by any such assignment or concession. We have before us the evidence of the authority under which the local authorities disposed of lots. We have also evidence of specific grants issued by the ayuntamiento during its existence, and a certified copy from the Recorder's ofiice of a book purporting to be a record of all the grants is- sued for such lots after that body ceased to exist in 1838. Two grants only are proved to be made by the ayuntamiento, one to Jacob P. Leese, and the other to W. A. Hichardson, and both of these are proved by the testimony of said Leese to have been granted by an express decree of the Governor, whose order to that effect was brought by him to the ayunta- miento. The record of subsequent grants above mentioned shows only two concessions of lots in 1839. In 1840, seven, three declared to be under the decree of the Governor, and the others by the Justice of the Peace. In 1841 two grants were made by the Justice, one of which recites that the grantee had the Governor's decree for a fifty vara lot, and the Justice concedes another lot adjoining it. In 1842 two entries only are made, one of which is stated to be under a grant from the Prefect, the other under the Superior Decree of the Governor. In 1843 seven grants were made, in 1844 thirteen, and in 1846 seventeen. Two of these are by Gov- ernor Pico, the other in the usual form of Justice's grants. — Most of these grants are of lots in Yerba Buena, but some are at the Mission Dolores. •*A dispatch from Jose Castro, acting Governor, is presented certifying that the Territorial Deputation in session of the 22d September, 1835, approved that the Ayuntamiento grant lots (solares) not exceeding one hundred varas in the place named Yerba Buena, 'paying to that Ayuntamiento the fees (canon) which may he designated to him as pertaining to the propios,' &c. In the book of Records above mentioned is found the authority under which the grants were made after the establishment of the Offices of Prefect and Justices of the [ 57 ] Peace under the law of March 20, 1837. It is there shown that after his installation the Prefect received a note from the Departmental Government wherein the Government con- cedes that building lots in the establishment of Dolores may- be granted to vecinos. Information of this order appears to have been received by Francisco Guerrero the Justice at that place, as early as the first of June, 1839, and on that day the draught of a form for putting individuals in possession of lots was prepared by him, entered of Record, and forwarded to the Prefect. The written decree of the government authorizing it, seems to have been in possession of Guerrero at that time, and the record shows that he subsequently applied for and obtained a copy of it, and in making a con- cession under it on the 18th day of November, 1840, a neW form was adopted by -the justice, making express reference to this authority of the departmental government under which the grants were made. The first form subjected the grantee to all police regulations which might be established. The second contained the additional condition that the grantee should "be subject to pay such tax as he may be liable to according to the edict on the subject, in case it be so determined by the gov- ernment, the same having been already consulted.'' All the grants made by the justices, with perhaps a single exception, were made in the manner above specified, and under the' express condition that they should thereafter be subject to the proper tax, if the lands should subsequently be assigned for municipal uses. "The authority to the ayuntamiento and that to the justices of the peace, certainly imply that the lands had not, at their respective dates, been dedicated or assigned to the particular use of any community or corporation, and it does not purport to make such an assignment. It purports nothing moi'e than to authorize the local officers, for certain purposes and on specified conditions to grant small lots on behalf and in the name of the government, not to concede ownership, or even usufruct to any officer, or community. It was a power which might at any moment have been reversed, and whether exist- ing or revoked, the ownership and power of disposing of thia land, as of other portions of the national domain, was with the government. These documents which are the source of the authority under which all the grants (so far as the testi- mony in the case exhibits them,) which have ever been made in this locality, by the local officers, all explicitly show that they were made subject to a tax (canon,) for the municipal authorities, if in future such authorities should be here estab- [ 58 ] lished, and the land be assigned by the government for com* mon land or propios, and showing clearly that no such dispo- sition of them, had as yet been made. ^' It is perhaps scarcely necessary to add more to this sub- ject. But if it were admitted that the ayuntamiento consti- tuted the municipal government of a pueblo here established, and nothing more, and even that the lands north of the Vallejo line, were assigned for the use of the municipality in 1834, it would still admit of great doubt, to use no stronger term, whether all rights to it had not ceased long before the con- quest and cession of the country to the United States. The law of August 20, 1837, changed materially the internal or- ganization, both political and municipal, of the department. This law abolished all the ayuntamientos throughout the country, except in the capital of the department, ports with a population of *±000, towns with 8000 inhabitants, and those which had ayuntamientos previous to 1808. Under this law, the ayuntamiento which was organized at the Presidio in 1835, and which subsequently held its session at the Mission, ceased to exist, and no other was ever established under Mexican authority in its place. Prefects, sub-prefects, and justices of the peace were appointed under this law in the districts, the ancient Spanish official, the Alcalde, being only elected where the law retained the ayuntamiento. In towns containing one thousand inhabitants or more, the justice of the peace, subject to the supervision of his superior, succeeded to the faculties and obligations of the ayuntamientos which were abolished, except that as to the management of muni- cipal funds, these were subject to the discretion of the de- partmental junta. But this locality, including as well the Mission and Yerba Buena, as all the land on the north side of the Vallejo line, had not that number of inhabitants. *■ The law purposely provided for no successor where ayun- tamientos had existed in towns with so few inhabitants, vir- tually abolished the municipal organization, and placed them under the ordinary authorities of the district and partido where they were situated. Where, as in this case, no town de facto existed, and the municipal authorities were abolished by law, it would seem that lands assigned previously for their use, and held by no other tenure, would again fall within the full control of the nation, and after the interval of some eight years from the time of the abolishing of the municipal authorities under this law, and the conquest of the country, without municipal successors, it is difficult to see how the own- ership of this land could be elsewhere, at the time of that con- quest, than in the Mexican nation." [ 59 ] § 94. Thus the unanimous opinion of the Board of Land Commissioners is found to be in strict conformity with the decision of this Court in the case of Woodworlh vs. Fulton. § 95. The same question has been passed upon by the Cir- cuit Court of the United States, for this Circuit. In the case of Field vs. Seabury, et. al., tried before the Circuit Court in 1856, the parties claimed under American alcalde's grants. The Court, Judge McAllister presiding, charged the jury that the grants were absolutely Yoid — that the alcalde had no power or authority to grant the land, which land constituted a j)art of the public domain of Mexico before the war, and had passed with the conquest to the United States — that the parties were chargeable with notice of such want of power and au- thority in the alcalde, and, therefore, that the possession was not even colorable. And, on error to the Supreme Court of the United States, although the judgment of the Circuit Court was reversed on another ground, the Court approved that portion of the charge of the Circuit Court, which related to the point now in issue, and declared that, " in this the Court was correct." And I may be permitted to state, though like the opinion itself, somewhat out of the case, that I have, on several occasions, had the curiosity to interrogate intelligent Spanish gentlemen upon the point at issue, who have uni. formly replied, that the fact of the existence of a puehlo^ villa, city, or other municipal organization, was no evidence, that it was the owner of the lands lying within its boundaries, and that a pueblo might well exist, as numerous pueblos did, in fact, exist, both in ^'pain and Mexico, without owning, or having an interest in, any lands whatever. And I have it from the best authority, a gentleman of undoubted truth and integrity — that he has propounded the same, or similar, ques- tions to advocates of the first legal talent in the city of Mexico, and that their uniform reply was, in substance, the same as above stated — and that they further expressed them- selves at a loss to conceive, how a Court could imply or pre- sume a pueblo to be the owner of any land, without proof of an express grant, or, what would be equivalent thereto, ^i^ [ 60 ] act of the legislative power specifically and distinctly con- ferring such ownership. § 96. I will, also, add, though, it is somewhat out of the case, I believe it to be the general impression of the bar, that the opinion in Cohas vs. Raisin is not law. In fact, I have never yet met with a lawyer, who attempted to defend •or sustain that opinion, although, I did once converse with a gentleman, who had been admitted to the bar, who thought it law. And, it may be asserted, with safety, that a large majority, not only of the profession, but of the community at large, are now pursuaded of the correctness of the position^ taken in Woodworth vs. Fulton, and of the erroneous views ,of Spanish and Mexican law adopted in the opinion in Cohas vs. Raisin. The former case, it is true, encountered at first ^ violent^ bitter, and unscrupulous hostility. But that has passed away, and "the sober second thought of the people" has reversed the respective positions which Woodworth vs. Fulton, and Cohas vs. Raisin, at first, occupied. § 97, The question, then, arises, ought the opinion in Cohas ps. Raisin, to be sustained by this Court. It will be remarked that, though several cases have subsequently been decided on the faith in that opinion, none has been made to rest on an -independent process of reasoning, by which the same conclu- . sions are deduced. Each subsequent case, of the class refer- red to, leans for support upon the opinion in Cohas vs. Raisin, and upon that alone. If that opinion capnot be sustained, • theij. neither can the decisions which have followed it. If, by the authority, upon which these have been decided, ^'a rule well settled and universally acquiesced in has been vio- lated," "there is no principle whic)a compels the further .observance '"' of such authority. If the foundation in Cohas ' ps. Raisin be undermined and brushed away, the superstruc- ture must likewise fall. It would be absurd for a Court to wander on in error forever, because its predecessors, ^nde^ the pressure, perhaps, of peculiar conditions of popular feel- ings, had abandoned the straight and narrow path of law. Equally absurd would it Jje for the Court to persevere Ji^ .^d- [ 61 ] ding error to error, in the vain hope that they will thereby succeed in establishing, on a sure foundation, the tottering fabric of 'presumption, raised in Cohas vs. Raisin. The same thing may be decided again, and again— but it will not stay decided — the doctrine of that case may be affirmed, and re- affirmed — but it will not rest affirmed. The common sense of the profession revolts against an opinion, which stands in diametrical opposition to all their legal notions of the proper distinction between law and fact, and to all their logical ideas of the proper relation between premises and conclu- sions. The point is raised on every trial at nisi prius, where it can be raised, it is argued whenever it properly presents itself— and it will continue to be raised and argued, until law shall, once more, assert its sway, and this new doctrine of presumption pass into forgetfulness. , *f § 98. This Court, assuredly, will not carry the doctrine of stare decisis further than it has heretofore been carried — espe- cially, when the necessary result would be to perpetuate an egregious error. What, then, is the practice of the Court, in regard to the doctrine oi s'.are decisis? The very opinion, which has occupied so much of our attention, precludes the Court from carrying this doctrine to extremes. '^However great," says the opinion, " is my regard for the doctrine of stare decisis, there is certainly no principle which compels its observance, where a rule well settled and universally acquiesced in has been violated." Just the case in hand. It would seem as if the opinion was declaring, in advance, its own doom. Its condemnation is pronounced in its own words. With a degreee of self-consciousness, not usually attained, it portrays its own character, and passes sentence on its own delinquency. Where, if not in that opinion, will you find " a rule well settled and universally acquiesced in, violated?" A rule settled by the universal and uninterrupted usage of the Spanish and Mexican law from the earliest ages to the present time- settled, by an uniform course of decisions in this very Court — settled, by the unanimous judgment of the United States Board of Land Commissioners — settled, by the decisions of the [ 62 ] Circuit Court of tlie United States for this Circuit, and by the approval thereof by the Supreme Court of the United States — settled, by the almost unanimous concurrence of the members of the bar, and by the approbation of a large majority of the community — settled, in fine, by reason and truth, and by the universal harmony and adaptation to each other, of law and custom as co-existent in Spanish and Mexican coun- tries. If, therefore, you hold the rule regarding the doctrine of stare decisis^ as laid down in this very opinion, to be cor- rect, you can no longer uphold the opinion itself. § 99. There is, however, one qualification of this rule as stated in the opinion, which must meet with the unqualified condemnation of every legal mind. I would respectfully ask, "what is meant by qualifying the rule with the condition of " universally acquiesced in." Does the opinion mean to be understood as saying, that a principle recognized by this Court, and carried into a decision, must be *' universally ac- quiesced in," to be binding? If so, then the Court, before pronouncing its decision, must always cautiously feel the popular pulse, to ascertain whether its contemplated decision will be " universally acquiesced in " — because, according to the qualification, the decision must be universally acquiesced in^ to attain the force of the rule of stare decisis. I would res- pectfully ask, if the opinion was framed upon any such hy- pothesis ? If it overruled Woodworth vs. Fulton, because it supposed that decision was not '' universally acquiesced in? " and if it interpolated its new doctrine of presumption, upon the condition, and with the expectation, that it would be " universally acquiesced in ? " If so, it should now be aban- doned, for, instead of being " universally acquiesced in,'' it is ' universally discarded as law. § 100. I think, however, it will be found, on an examina- tion of the cases, that this Court has not paid much respect to the doctrine of stare decisis. In fact, to speak in plain terms, the doctrine is entirely exploded by the Court ; and the consequence is, that people lack confidence in the perma- nency of any line of decisions which the Court may adopt ; [ 63 ] and confidence will never be restored until the Court shows, by a return to the original starting point, that they are de- termined to adhere to the doctrine of stare decisis. fo § 101. What, then, is the position of the Court in relation to the doctrine of stare decisis? The cases show it to be this — 80 long as the same judges remain on the bench, the principle is adhered to. When the judges change, the law changes likewise. I shall prove this to be the rule of the Court, by a reference to adjudicated cases. '!•>'! ^ " § 102. We have already seen what respect was paid to the doctrine of stare decisis, by this opinion, in Cohas vs. Raisin--^ in which, it was held in such contempt, that the Court, ap- parently to avoid recognizing it, as it would have been obliged to, by deciding the case upon the law applicable to the facts, permitted a new state of facts to be substituted in the place of that contained in the record — thus, going far out of their direct way, for no other purpose, as it would seem, than to show their disapprobation of the doctrine* This same disposition of the Court will be made more clear, by a citation of other authorities. § 103. In Rogers vs. Huie (1 Cal. Rep., 429), it had been decided that an auctioneer, who receives and sells stolen property, though innocently, and in the ordinary course of his business, was liable to the true owner for the conversion, although the auctioneer had paid over to the felon the money received on the sale of the goods, before notice that the goods had been stolen. The Court say, " An auctioneer who receives and sells stolen property, is liable for the conversion to the same extent as any other merchant or individual. This is so both upon principle and authority. Upon princi- ple, there is no reason why he should be exempted from liability. The person to whom he sells, and who has paid the amount of the purchase money, would be compelled to deliver the property to the true owner, or pay him its full value ; and there is no more hardship in requiring the auc- tioneer to account for the value of the goods, than there would be in compelling the right owner to lose them, or the [ 64 1 purchaser from the auctioneer to pay for them. As a gen* eral rule, any person who assumes and exercises a control over the property of another, without right or authority, must respond in damages to the amount of the property ; and I see no principle of policy for the encouragement of trade, or for convenience in the transaction of commercial blisiness, under ^hich an ai^ctioneer should be permitted to claim exemption from the general rule. " Upon authority the case is clear. The very point wag decided in Hoffman vs. Cdrew, (20 Wend. 2l; and S. C. 22 Wend, 285). That CsEse is in all respects analagous to the case at bar, and both the Supreme Court and the Court of Errors held the auctioneer liable. Senator Verplanck, in the Court of Errors, (22 Wend. 319) speaking of th« policy of the rule, uses the following language : "In this instance^ the ruin falls hardly upon innocent and honorable men ; but looking to general considerations of legal policy, I cannot conceive a more salutary regulation than that of obliging the auctioneer to look well to the title of the goods which he sells, and in case of feloniously obtained property, to hold him responsible to the buyer or the tru^ owner, as the one or the other may happen to suffer. Were our law otherwise in this respect, it would atford a facility for the sale of stolen or feloniously obtained goods, which could be remedied in no way so effectually as by a statute regulating sales at auction, on the principles of the law as v^e now hold it." § 104. This same question arose again in Rogers vs. Hui&f (2 Cal. Rep.f 571) before new judges on the bench. So little regard was paid to the doctrine of stare decisis, that the Court does not even condescend to notice the priar decision. The doctrine of the former decision was overruled, and it was held that the auctioneer was not liable. The opinion of the Court was delivered by the same justice, from whom the opinion in Cohas vs. Raisin proceeded, and it will be found, on examination, to partake largely of the same qualities which distinguishes the latter. After stating the point to be determined, it proceeds as follows : [ 65 ] *' The question to be here decided is, whether an auctioneer, who, in the regular course of his business, receives and sells stolen goods, and pays over the proceeds of sale to the felon, without notice that the goods were stolen, is liable to the true owner as for a conversion. " The only case precisely similar to this, is Hoffman et. al. vs, Carew, 22 Wendell. That case was decided by the New York Court of Errors, composed then of the Chancellor and Senate, and upon the question there was a dissenting opinion and a divided vote. The majority of the Court held that the auctioneer was liable. The opinions are long, and there is much argument placed on the ground of convenience. To this it can very briefly be replied, that there is as much, or more of that species of reasoning deduced on the other side, and which will occur readily to any one who considers the subject. The chancellor commences his opinion thus : * The simple question presented for our decision in this case, is whether the purchaser of stolen goods, who afterwards sells them as his own to a bona fide purchaser, is liable to the owner of the goods in an action of trover for such conversion thereof to his own use.' " It will be seen at one view that he mis-states the facts in calling the auctioneer ' the purchaser,' and he is guilty of petitio prindpii in styling the act of the auctioneer ' a con- version thereof to his own use,' because the very point to be decided was whether it was conversion or not. And as that is also the point to be here decided, it will only be necessary to examine the doctrine of conversion as expounded by writers upon the action of trover. The conversion, it will be conceded, is the gist of the action, and without conversion, neither possession of the property, negligence, or misfortune, will enable the action to be maintained. In illustration of this, it is settled that a bailee is not liable in trover, where the goods have been lost or stolen, for there is no actual conver- sion. Stephens says trover is a remedy to recover the value of personal chattels wrongfully converted by another to his own use. Chitty says, ' The refusal to deliver goods upon de- mand, will not, in all cases, constitute a conversion, unless the party refusing have it in his power to deliver up the goods detained.' 1 Chitty, 160. " Lord Mansfield says in a case quoted 3 Stephen's N. P., * A mere wrongful asportation of a chattel does not amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker's own use, or that of some third person, or unless the act done has the effect of 9 [ 66 ] destroying or changing the quality of the chattel.^ I hare thus quoted enough to show the doctrine of the law as it is laid down by the most approved authorities. " From these it appears to me that to be guilty, the de- fendant must have converted the property to his own use; and if not, then any other act to amount to a conversion, must be done with a wrongful intent, either expressed or implied. If one destroys a chattel wantonly, this is a wrongful intent expressed. In the case of a common carrier, who delivers goods by mistake to the wrong person, this is a wrongful intent implied, because his undertaking was absolute to deliver to the right owner. " In the case under review, the defendant certainly did not convert to his own use ; and it would be impossible to say that he was guilty of a wrongful intent expressed or implied, when it is clear that he had no notice of the rightful owner- ship of the property, and was in the regular pursuit of his business as a public auctioneer. He was the mere agent for the transmission of the property from one hand to another. Each act committed in connection with the goods, was not his act but that of his employer. And, although he might be liable to the vendee if he did not at the sale disclose his prin- cipal, yet that liability would arise from a different doctrine entirely." § 105. I regret that it does not fall properly within the scope of my argument, to notice this reasoning at length. I cite the case merely to show to what extent the Court acts upon the doctrine of stare decisis ; and I have quoted from the opinion more than was, perhaps, absolutely necessary for that purpose, on account of the profound knowledge displayed of the principles of the action of trover, and the ease and grace with which the reasoning of Chancellor Walworth is brushed away with a petitio principii. The opinion concludes with an expression of satisfaction, " that the decision in Hoffman vs. Carew, is not law," and the former decision of this Court in Rogers vs. Huie, shares the same fate ; but, it will be noticed that they are both clearly law within the very rule laid down by Lord Mansfield in the passage quoted. § 106. In Bryant vs. Mead, (1 Col. Rep. 446) the Court held that money lost in gambling could not be recovered bj the winning party, and that this was so at common law. In [ 67 ] Haight vs. Joyce^ (2 Col. Rep. 66) the decision in Bryant vs. Mead is doubted, and the Court say they should be inclined to question it. § 107. In Heath vs. Lent, (1 Cal. Rep. 410) it was held, in an action on a bond given on the issuing of an attachment, that counsel fees paid by the attachment debtor in the defence of the suit commenced by the writ of attachment, over and above the taxable costs, were not recoverable. But, in .^h Thaie vs. Quan Wan ^ Kan Se, (3 Cal. Rep. 216) it was held, in an action upon an injunction bond, to recover damages for the wrongful issuing of the writ, that the amount paid to counsel as a fee to procure the dissolution of the injunction, was properly allowed as part of the damages. It was insisted, on the argument in the latter case, that the Court had already decided in Heath vs. Lent, that counsel fees could not be recovered in such an action ; but, with what sharp judicial acumen Mr. Justice Wells announces ex cathedra, *^ even though it may be said, that it (Heath vs. Lent) decides the point here, we question the correctness of the judgment of the Court in that case as it stands, and think it erroneous." The same learned judge, also, declares that a decision in Blackford's Reports, (Davis vs. Cowre, 1th Blackford) holding the same doctrine as Heath vs. Lent, did not meet with his approval ; but the case of Edwards vs. Bodine, (11 Paige Ch, Rep.) meets with his full approbation. Now, there is not one word in the case cited from Paige's Reports, which conflicts with the decision in Heath vs. Lent, nor was there anything whatever in the case of Thaie vs. Wan, which called for the expression of an opinion as to the case of Heath vs. Lent. The same learned justice, however, who delivered the opinion in Cohas vs. Raisin, not satisfied, as it would appear, with the emphatic condemnation of Heath vs. Lent by his associate, lifts his arm against it, and deals it, as he no doubt, supposed, its death blow. Listen : " Generally, the recovery of coun- sel fees is not allowed as part of the damages, and the reason given for it is, because the loss is consequential, and not the actual and direct injury complained of. % [ 68 ] " But where, as in this case, the injury complained of is the improper commencement and prosecution of a writ, or of any process in a suit, the counsel fees in such case is a loss as immediate and direct as any other, and should be allowed. Upon this principle, I think the case of Heath vs. Lent, 1 Cal. Rep, is not law.'' § 108. I ask, under which of the two paragraphs in the last quotation, would counsel fees, paid on the trial of a suit com- menced by attachment, fall? Would they come within the category of an " injury '' caused by " the improper commence- ment and prosecution of a writ, or of any process in a suit ? '^ if any one knows what is an " improper commencement and prosecution of a writ.'' It will be noticed, as has been stated, that the question in Heath vs. Lent, was, not whether counsel fees, paid in procuring the dissolution of an injunction, could be recovered as in Edwards vs. Bodine, and in M Thaie vs. Quan Wan, but whether counsel fees paid on the trial of the causet which was commenced by attachment, could be recovered in an action on the attachment bond. To state the case more clearly — an action is commenced by a writ of attachment — no application to discharge the attachment is made — the par- ties put in their respective pleadings — issue is joined — and the parties go to trial — on the trial the defendant procures the services of counsel — and the fees paid to such counsel consti- tute the item in dispute, in the action brought on the attach- ment bond. Now, will any lawyer pretend to say that such fees form any part of the damages recoverable in such action? The necessity for the services of counsel on the trial of the cause, no more result from the issuing of the attachment, than from the issuing of the summons — they are services re- quired equally on the ti ial of every suit, by whatever writ or process the suit may have been commenced ; but the dama- ges properly recoverable in an action on an attachment bond or injunction bond, are such as result exclusively from the process. Suppose the writ of attachment should be discharged immediately after the commencement of the suit, but the cause should go on to trial — would counsel fees, paid on such [ 69 ] trial, be recoverable in an action on the bond ? That will not be claimed. No more are they recoverable in such a case, as Heath vs. Lent. The two cases, in fact, of Heath vs. Lent and Ah Thaie vs. Quan Wan, are so entirely dissimilar, that it would seem, nothing but a disposition to indulge an extraordinary judicial indignation, could call for any expres- sion in the latter as to the correctness or incorrectness of the •former. This opinion in the case of Quan Wan, goes as far out of the way to demolish Heath vs. Lent, as that in Cohasvs. Raisin did to sustain the validity of alcalde's grants, and is a striking commentary on that portion of the opinion in the latter case, which proclaims " a great regard for the doctrine of stare decisis." § 109. In Hoen vs. Simmms, (1 Cal. Rep. 119,) the Court decided that a naked parol conveyance of lands, unaccompanied by the delivery of possession, or title deeds, or other symbol, or circumstance, was null and void by the Spanish and Mexi- can law, as it would be under English and American law. This, I take the liberty of asserting, will not be denied or doubted by any Spanish or Mexican lawyer. But, in Hayes vs. Bona, etal. decided at the January term, 1857, the Court inti- mates its doubts as to the correctness of the position, but af- terwards, in effect, holds the same thing. The Court says, " In Hoen vs. Simmons, (1 Cal. Rep. 122,) this Court held that a verbal sale of land was not valid under the Mexican law. As a general proposition, it may be stated that, under the Spanish law, a sale of real estate by parol would not be void, per se, and that the distinction between parol contracts and specialities, known to the common law, does not exist under the civil law, or the Mexican system of jurisprudence heretofore in force." The same Opinion also says, — "But so far as we are informed, contracts for the sale of land by the custom of the country, were required to be in writing, and although all the forms prescribed were not strictly followed, still it was necessary that the instrument should contain at least the names of the parties, the thing sold, the date of the transfer, and the price paid." The Court, it is true, makes [ 70 j Q, distinction between the law as written, and that established by custom, yet the law has the same binding efficacy, whether existing in written enactments or by custom ; and, although the defendants claimed under a written contract, yet, as it was not signed by the party purporting to make the grant, nor by his direction or order, the sale set up, if any, was a verbal sale, which the Court correctly holds to be invalid ; thus affirming, in effect, the decision in Hoen vs, Simmons, which it had, at first, questioned. § 110. Other cases of a like character and complexion might be cited, but I have already called the attention of the Court to a sufficent number, to show in what light the doctrine oi stare decisis had been viewed ; and how far the Court has gone out of the way for the purpose of signifying to what extent it considered itself bound by former decisions. Thus, in Hayes vs. Bona, the Court very properly decides that a parol con- veyance of lands is void under the Mexican law — but it, in effect, expresses its unwillingness that a former decision, hold- ing the same doctrine, should be considered as correctly de- claring the law. In the case of Quan Wan, the Court passes upon the demerits of Heath vs. Lent, upon the ground of no closer analogy than that of the term " counsel fees " occurring in each. The Court, having in Heath vs. Joyce entered its protest against the decision in Bryant vs. Mead, finds itself, afterwards, at liberty to affirm the same doctrine in Graham vs. Keville, (2 Cal. Rep. 81.) In Rogers vs. Huie, (2 Cal. Rep. 571,) the Court violates principle, and over- throws the authority of the decisions, both of the Supreme Court and Court for the correction of errors of the State of New York, for no other purpose, as it would seem, than to run against the doctrine of stare decisis, by which it would have been bound in following the former decision of this Court on the same point. And in that master-piece of judi- cial science, the opinion in Cohas vs. Raisin, the whole system of Spain and Mexico, in relation to the organization of towns, is misconceived or misrepresented in manifesting the great regard for the doctrine of stare dectsis. [ 71 ] § 111. From this review of the cases in which the Court has given a judicial explanation of its position with regard to the rule now under consideration, it will hardly be claimed with seriousness, that the Court is precluded from question- ing the correctness of the reasoning on which Cohas vs. Raisin was decided. I do not ask it to reverse the case, but to cease following the opinion — the judgment of the Court upon the facts in the case, and the reasoning, which precedes that judg- ment, being as wide asunder as the poles. If the Court has authority to reverse its own previous decision, when based upon reasoning applicable to the facts, how much more may it refuse to be bound by a particular process of reasoning wholly irrelevant to the facts ? And if it may overrule a former adjudication of the Court, which is in conformity with law, how much more may it overrule one which violates all law? If the Court, in 1853, imagined itself justified in overruling the case of Woodworth vs, Fulton, which is noW known to have been decided in strict conformity with law, how much more would it be justified, at the present time, in overruling the opinion in Cohas vs. Raisin, which is now known to be against all law ? Upon what ground is the Court precluded from questioning this opinion ? All I ask is that it may be questioned — for to doubt, is to examine, and to examine this ojnnion, is to discern and condemn its fallacy. It cannot be on the ground of stare decisis — for the doctrine of the Court favors, instead of opposing. It cannot be ou the ground of the number of times, which that opinion has since been upheld by subsequent cases — for Woodworth vs, Fulton was sanctioned by as many subsequent judgments of the Court. It cannot be on account of the length of time, during which it has been followed — for it has been followed only some three years and a half, while the principle of Woodworth vs. Fulton was acted upon nearly four years. It cannot be on the ground that [great interests have grown up on the faith of its con- tinuing — for equally great, in fact, greater interests grew up under the decision of Woodworth vs, Fulton, And for good reasons — because the latter was proved,, on examination, to L 72 ] be founded on a correct understanding of the Spanish and Mexican law, and, wherever that law was understood, *' every body could assuredly rest " upon it — while the former was found, on such examination, to be neither law, logic nor sense, and consequently^ commanded neither the credit nor the respect of the community, but introduced a state of chaos and a feel' ing of uncertainty in respect to all titles to land — and because every man of ordinary information, has constantly seen and felt, as the whole community now does, that the time would eventually come, when, the emergency having passed which was supposed to have called it into being — when it should no longer be thought necessary, " certainly to demonstrate," that what any one " wished and believed to be his, actually was his" — it would meet the usual fate of all portentous births. Neither can it be, that the Court is shut out from an examina- tion of this opinion, on the ground that it meets the approba- tion of other Courts, for it has, as we have seen, been discarded by all Courts — nor, on the ground, that it receives the com- mendation of the profession, for, from this source it meets with nothing but derision and scorn. It cannot be on the ground of its own force of reasoning. I will not insult the good sense of the Court by supposing it. Nor on the ground that its author has repeatedly declared it to be law — for you may pile error upon error, "Olympus high," without producing a truth, as you may add cipher to cipher forever, without mak- ing an unit. There is no ground upon which the Court can be prevented from the exercise of its own reason and sense, in. the scrutiny of this opinion, unless it be that it operates, as, viewed in the light of subsequent interpretation, one would suppose it to have been intended, as a legislative grant of the lands mentioned in it, to the city of San Francisco, as such grant was considered by many to be " something essentially wanting." It, indeed, required an " effective judiciary " to accomplish so difficult a task. But it is not necessary for me to remind the Court that the "judiciary " does not sit to leg- islate, but to judge — not to exercise its " care and considera- tion in the construction of a legal code," but to construe the L 73 ] code already made-r-not to create rights, but to protect such as are created — not to make grants, but to interpret such as are made — not to carry into adjudications, what it may con- ceive should be, but what is — not to take its own wishes, nor the popular feeling, but the law, as its guide-^no1; " certainly to demonstrate '' that what a man " wished and believed to be his, actually was his " — but to adjudge to each one what the law declared was his.^-Because " no man has aught," is it the business of this Court to give him aught? or, because he " thinks he has a title," to bestow upon him a title ? It would seem that a person who should suppose that any " judiciary has afforded the most substantial benefits," by acting upon such principles, would not be commended for his correct ap- preciation of the true duties or proper sphere of action of the judiciary ; and it would not be surprising, if a member of the judiciary should unfortunately entertain such notions of his duties, that he would fall into a train of reasoning like that of the opinion in Cohas vs. Raidn, § 112. Policy then is the only ground left, upon which th€^ Court can hesitate as to its course. But true policy is as much against the opinion, as reason and law. Under the law as expounded in Woodworth vs. Fultcm, the city of Sail Fran- cisco, instead of being bankrupt and poverty stricken, would have become the owner of a domain which would be sufficient to defray all her expenses through all time — build her school houses, and public works — adorn her plazas and streets — sup- port her hospitals and other works of charity-construct docks, piers and warehouses ; in fine, endow her with a noble and magnificent patrimony, which, if managed with prudence and care, would obviate the necessity of taxation forever. On the contrary, what is the result, under the policy of the opinion in Cohas vs. Raisin ? All the vast resources of the city have been " swept away,'' — in their stead, is left an im- mense public debt, without the means of payment, otherwise than by heavy taxation — with the necessity of a regular con- tinuance of taxation, in the future, to carry on her ordinary government — a bankrupt treasury, and no means of replen- 10 [ 74 J ighing it — streets unrepaired — public buildings uncons true ted. These are " single points/' on which she, or " anybody can as- suredly rest." These are the "substantial benefits " which the latter decision has "afforded." And for the profit of whom? Worthless demagogues and unprincipled specula- tors. To these it " certainly demonstrates," that what each ** wished and believed to be his, actually was his." I ask again, ought such an opinion to be longer sustained by this Court ? I will conclude what I have to say in direct reference to the opinion in Cohas vs. Raisin, with the oft repeated remark, how dangerous it is, for a person to en- deavor to show himself wiser than others upon a subject of which he is entirely ignorant, both as respects the law and the language, and, afterwards, make his own folly a matter of *' self-gratulation." § 113. I have said the opinion in Cohas vs. Raisin was in direct hostility to the entire system of Spanish and Mexican law, upon the subject of which it treats. I shall now prove it. I shall now prove and make clear, by reference to laws and authorities of Spain and Mexico; That towns, pueblos, cities, villages, and hamlets, in Spain and Mexico, as in all Spanish countries, and, I might add, in all countries in the world, enjoy the rights, privileges, franchises and property, which have been specially conceded by the sovereign authority, and, that, although by some gen- eral laws, the mere fact of their corporate existence may entitle them to certain political rights, such as to have a local municipal government, yet, in respect to property, real or personal , they own only such as has been expressly granted to them, or which has been acquired by purchase or some other lawful title, in the same manner and subject to the same laws as individuals ; and that the formation of ayuntamieutos, the election or appointment of alcaldes, and other officers, the establishment of limits or boundaries of towns, other and smaller pueblos grew up in va- rious localities within its termino or alfoz, which were sub- ject to the government of the original pueblo, without pos- sessing or enjoying any municipal rights, or rights to property real or personal. § 121. By the termino of a pueblo, tcwn, villa, or city, is understood the territory, district or jurisdictional domain lus- signed to it by the sovereign in the fuero, charter or cartas publicas of incorporation, and the inhabitants thereof enjoyed the right in common to the wood, water, pasturage, and natu- ral products of the whole termino assigned to it — though the entire termino still continued to form part of the public do- main, except in so far as the sovereign, by letters patent, had parted with his right thereto. Don Vizcaino Perez, advocate of the Royal Council, in the work entitled " Compendio del Derecho Publico y Comun de Espana,^^ whose definition of the term termino I have just given, speaking of the formation of towns in general, after having observed that in Spain they cannot be formed without royal license, says : " These unions of inhabitants have different names ; some are called aldeas, L 80 ] lugares, arrabales, pagos, villas, ciudades; and all these pobla- ciones, (pueblos or towns,) take their title conformably to the privilegios de poblacion, which the sovereign concedes to each one ; (vol. 1. p, 331;) and, speakin<^ of the villa, or incorpo- rated pueblo or town, which possesses jurisdiction and control, and exercises government over all included within its termino, he lays it down as a principle, " that the king or sovereign prince alone has authority to grant privileges, (privilegios,) or titles, to villas, or to constitute any lugar such, and no other can do it, though he be owner of the territory, (dueiio de territorio,") and, on the other hand, the king himself, though he may concede such title and privileges, can confer no right to the soil, nor make a grant of any portion thereof to the villa or other town, unless he be the owner (dueiio) thereof. These charters and royal concessions. of every name and na- ture, after having been first signed by the sovereign himself, were next recorded, word for word, and then sealed by the chancellor; and by the laws of Spain and the Indies, this reg- istry was essential — the charter or concession not only being incomplete, but being declared to be null and void without it. (L. 1, tit. 15, lib. 2, R.-^L, 4 . [ 85 J § 126. Some cities, villas and lugares of the Indies, had concessions from the crown for a limited time, of the fines payable to the Royal Exchequer, which might be incurred within their jurisdiction, to be applied to their propiosj as may be seen by reference to L. 9, T. IB, Lib. 4, R. I. By L. 1 of the same title and book, (of 1523) it is also provided that, '* the viceroys and governors, who may be thereunto empow- ered {quituvieren facultad), shall assign to each villa and lugar which may be newly founded and settled, the land and lots (solares) which may be necessary, and can be given to it with- out prejudice to third persons, for propios, and make report to us of what has been assigned and given to each, in order that we order the same to be confirmed," (A. D. 1525). The vice- roys and governors, not all — or any of them indifferently, but such as may have authority from the king, the legislative power, shall assign to each new town, not those already founded, but those which shall be newly settled, for the propios of the place, and consequently to be reserved from sale or distribution, the land and lots which may be neces- sary for that purpose, and make report thereof to us; not grant them, but advise us, so that we may grant them, or which is the same thing, order the designation made to be confirmed, by which act, the title would pass, qualified and limited, however, as in all such cases. By the law of 20th March, 1837, Art's 5, 65, 112, 113, 172, the fines imposed by the governors, prefects, sub -prefects and alcaldes, are to be applied to the propios of the place where the fined person resides. § 127. We see, therefore, that the propios and revenues of towns consist of a great variety of things acquired by express grant, and that the lands belonging to the propios are entirely distinct from the lots laid out for settlement and private oc- cupancy, as well as from every other class of lands, which may be within the limits and jurisdiction of towns. They are the lands granted, designated, described and located for that specific purpose, without which location, boundaries or description, there can of course be no valid grant. [ 86 ] § 128. We have already Been that by the laws of Spain, not only is it the exclusive prerogative of the king [or since 1812 of the Corte.^] to grant the title of villa to any place, and to designate the termino or demarkation of its jurisdiction, but that all the rights, privileges, property and exemptions which it can claim, must be derived from the same source. The same principle is declared in the law of 1627, which is L. 6, T. 8, Lib. 4, R. I. "We ordain that any viceroys, audiencias, governors, or other ministers of the Indies, however superior in authority, do not for any cause, or reason whatsoever, confer titles of cities, or villas upon any pueblo or lugar either of Spaniards, or Indians, nor exempt them from the jurisdiction of their principle caheceras, with admonition that it will be matter for accusa- tion in the account to be taken of their official conduct, for this merced [favor] and faculty must be petitioned for in our Council of the Indies, and we declare void those titles, which in contravention of this law shall be conferred upon any piteblo or lugar whatsoever ; and in respect to the new towns and set- tlements [nuevas poblaciones y fundaciones] let the disposi- tions [of the law] be observed." This law is sixty-four years later in date than L. 2, T. 7, Lib. 4, R. I., and must be considered as modifying it, if any real conflict exists between them. § 129. We accordingly find that when it was proposed by the inhabitants of the pueblo of Manzanillo in Cuba, to estab- lish local authorities at that place, erecting themselves into a separate municipality, the expediente formed for that purpose had to be passed to the Council of the Indies in order to ob- tain the royal sanction ; and as the title which was granted will illustrate several matters which we have to consider, I will transcribe it at length, — the same having been cited and relied upon by Mr. Comr. Thompson in the case of the city claim. " Don Ferdinando VII. by the grace of God, king, &c. In a letter of the 14th May of the year 1830, my Governor, Cap- tain General of the Island of Cuba, reported to me the expe- diente formed at the instance D. Sabastian Romagoza, D. Pedro Olive, and D. Joaquin Clavelle, citizens of the new [ 87 J town called Port Royal of the Manzanillo in the said Island^ with the intent that there should be granted to it the title of city and villa, independent of that of Bayamo, (founded in 1515,) with the right to have a local government and sub-dele- gate of the royal Hacienda, Ayuntamiento and Public Notary;: manifesting with that view its state of civilization, numerous' inhabitants, commercial advantages, the inconvenience and disadvantage to which the citizens were subject, from having to go for the administration of justice by impassable roads, a distance of fourteen leagues to the villa of Bayamo, as like-- wise, the well known advantage arising from the advance- ment of the settlement of that part of the Island contiguous to foreign parts. '' In order to proceed with the exactness which was requi- site in affairs of this nature, it was ordered on the 21st of October of the aforesaid year, 1830, that my Governor, Cap- tain General should appoint a person, in his conffdence, to proceed to the apeo (judicial survey,) and demarkation of the lands of said Pueblo of Manzanillo, designating those neces- sary for propios, ejidos, dehesa de labor, (pasture land for work- ing oxen and horses) and pasturage of cattle ; that he should mark out with all possible exactitude the jurisdictional limits (terreno jurisdiccional) which were to be assigned to it and the partidos which it should embrace ; that in defect of propios he should propose the arbitrios which he might deem proper to cover the municipal expenses, for which purpose he was to form an expediente with citations of the owners of coterminous lands, or of those who might for any cause be presumed to have a right to be heard ; that he should take proof of the exact number of souls in Manzanillo and of the neighboring partidos, which it might be proper to include in its jurisdic- tion ; that he should select the edifice which ought to be set apart from the Council House (casa de Ayuntamiento) and prisons, or if there should be none suitable for the purpose, then of the land most suitable whereon to build them, form- ing plans, estimating the cost of the works, and proposing,^ at the same time, the means and arbitrios which he might think least burdensome to defray the expenses, without detriment to my royal Hacienda; that he should form the municipal or- dinances which should govern ad interim, for which, and all else that he might deem necessary he should give audience to the inhabitants in a Junta composed of four or five of the best informed ; proceeding in all things with the greatest dispatch^ without any vexation or oppression of the inhabitants, and that he should report all with his informe. In pursuance [ 88 ] whereof, my Governor Captain General committed the exe- cution of the aforesaid proceedings to the Lieutenant Colonel D. Fulgencio De Solas, who, as the result of his j&rst investi- gation, manifested that the discharge of his commission was the work of a long time, and would occasion a delay much to be regretted in the indispensable separation of Manzanillo from the jurisdiction of Bayamo, which, without suspending the other measures, might be effected immediately, by designating for the division line of the termino and jurisdiction of Manzan- illo that marked by the Estero and Cienega del Buey, river Gico^ tea, and river Tarquino as natural limits, closing the distance between the sources of the two rivers by two right lines, one ex- tendiug from the Gicotea to the Buey, and the other from the Tarquino, by which demarkation, there remained in the new ju- risdictionthe ;)ar^i(io5 of Yara, Gua, and Vicana, leaving still in the jurisdiction of Bayamo, a territory much more extensive. Upon this exposition of the Commissioner Salas, my said Governor, (Captain General,) consulted with the superinten- dent, sub-delegate of my royal Hacienda, and both chiefs concurring in respect to the convenience and utility of the emancipation of Manzanillo, with the aforesaid demarkation, the former made report of all for the corresponding determi- nation (of the king). The subject having been examined with all that mature deliberation which its importance exacted in my Council of the Indies, they acquainted me with their opinion in a consulta of the 5th June last, and conformably therewith, I have determined to concede the title of villa to the pueblo of Port Royal of Manzanillo, in the said Island of Cuba, with the said jurisdictional territory designated by the Commissioner D. Fulgencio de Salas, and the establishment of an Ayuntamiento, composed of two ordinary Alcaldes, which my Governor Captain General will appoint, for the first time, and six regidores, declaring these last offices vendible and renunciable, with respect to which the Intendente will form an expediente aud proceed conformably to the laws. Likewise, I have deemed meet to charge my said Governor, very par- ticularly, that he take the necessary measures, to the end, that as soon as the Ayuntamiento be formed, it occupy itself in expediting, as much as possible, the proceedings commanded in the order of 21st October, 1830, at least, those which may take place most conveniently, and with the least expense, dif- ficulty or delay, reserving to myself the prerogative to take measures for the appointment of snb-delegate of the four causes, (^Justice, Police, War and Hacienda) in Manzanillo, whenever I may determine upon the cmsulta of my said Caun- [ 89 ] ■• Cil of the Indies, with respect to the establishment in the Island of Cuba, of Mcaldes, Mayores Letrados similar to what was done in Porto Rico, and considering that the advantages resulting from this concession are greater, with respect to the State than the citizens of Manzanillo, I have determined to declare it exempt from the services designated to those of this class in article 16 of the Royal Cedula of 3d Aug. 1801. " In consequence, it is my will, that the said pueblo be per- petually styled and called villa of Port Royal, of Manzanillo, and as such use the jurisdiction corresponding to it with the possession of the pre-eminences which it may and ought to enjoy. Given in the Palace, 19th of August, 1833. "I, THE King." § 130. From this document several important conclusions are deducible in harmony with the laws and authorities before cited. 1. That no power short of the Sovereign, could erect a municipal corporation at Port Royal, give to the inhabitants a separate jurisdiction and local government, and segregate them from that of Bayamo, in whose termino they had been comprehended, though fourteen leagues (nearly 40 miles) dis- tant from it. The Captain General of Cuba, though pos- sessed of the omnimodas facuUades, the plenary powers of the Viceroys, could not even take the initiatory steps, so as to create an inceptive right, but forwarded the expediente directly to the king, by whom the initiatory orders were given. This is a practical exposition of L. 6, T. 8, lib. 4, R. I., as late as 1830-3. 2. That a municipal corporation may be fully established with its termino, or jurisdictional limits marked out and defined, and its Ayuntamiento and other authorities fully installed, without giving that corporation any shadow of right to lands within its limits, or to any other property whatsoever. For, at the time when the king signed the charter for Port Royal, not only had no grant of lands been made to the town, but the lands had not been marked out under the orders which the Commissioner Salas had received for that purpose, but, to execute that part of the royal man- date, he had reported would be the work of a long time. 12 [ 90 J Tkere must be an apeo^ a technical expression well understood in law, meaning a judicial survey, with many indispensable formalities. An expediente must be formed — there must be indispcQsably a citation of colindantes, and "of all who, for any cause might be presumed to have a right to be heard.'' Of course on a subject so immediately affecting the inhabi- tants, as the demarkation of lands for their propios, ejidos, dehesa de labor, and pastos he must give them audience. All this, however, to be executed with that exactitude which is required in affairs of this nature, would require a long time, and was left undone, and, consequently, when Port Royal got its charter, it got no grant of land with it, and although it was probable that at some subsequent day, some of the lands within the extensive territory which its jurisdiction embraced, would be surveyed off, assigned and granted to it, yet, nothing is clearer, than that at the time of its incorporation, it had no lawful claim to any particular tract of land within the three partidos which it embraced. Manzanillo had been a puehh for a long time with a numerous population and a con- siderable commerce, when it was erected into a corporate town or villa, but the question of pueblo or no pueblo was not agitated, it seems, as affecting the question of lands or property, and although L. 6, T. 5, Lib. % R. I. was in force in Cuba, nothing appears to have been suggested about that four leagues square, either by the inhabitants, the Commis- sioner Salas, or the Captain Greneral, or by the learned Council of the Indies. The Commissioner was also required by the Royal Order of 21 Oct., 1830, to select the edifices for Council House and prison, or if there should be none suitable for the purpose, then the lands whereon to build them. These lands would of course be in the heart of the town and would be selected from some of the vacant or ungranted lots, the property of the king, and which, when selected, and reported to the king, he intended to grant to the town for the purposes indicated in the order. Had these lands been vested in the town from and by virtue of its establishment or incorpo- ration, the Royal Commissioner would have nothing to do, but *- [ 91 ] the town would select for itself and make use of its own lands for any municipal purposes not forbidden by the laws. § 131. We have seen something of the nature of the terms rentas, propios, and arbitrios, as used in reference to towns in Spain. It may furnish additional help in obtaining correct notions to ascertain the character of the terms ejidos and right of common. The ejido is " the campo, (open country,) which is at the salida (exit) of the cities, pueblos, and iugares, and which is not planted nor cultiyated. Its exten- sion according to the law (L. 13, T. T, Lib. 4 R. I.,) "ought to be as great as may be necessary, so that, in case the town grows, there will always remain space enough for the people to recreate themselves, and let out their cattle without doing damage. From which it is clear that no fixed rule can be given, but that it must be altogether arbitrary, according to the circumstances of the magnitude of the cities, number of inhabitants," &c., (1 Feb. Mej. 312-13.) The author just cited divides the bknes de universidad into two classes, in the first of which he ranks the propios and arbitrios, " which cannot be used by all, and which are only administered by the -ayuntamiento or council of the city, and the fruits whereof are devoted to the public benefit;" (id. 304;) and in the second class, the ejidos (id. 312) "which are for the use in common of all the dwellers in the place, as well the poor a^ the rich, but which cannot be used by those of any other tierra (place or town) contrary to their will or prohibition.'' The ejidos, being nothing else than vacant space, left provisionally outside of the surveyed plat, might subsequently be divided in the same way as the original plat, by extending the streets and laying out of new sdares, if the increase of the population should require it, but they never ceased to be the property of the sovereign (L. 1, 13, 14, Tit. 7, Lib. 4, R. L) § 132. The right of common, that is, the common use and enjoyment, which the vecinos have in the terminos publicos and consejiles of the cities, villas^ and Iugares, was only a preca- rious servitude existing by sufierance in the royal lands remaining undisposed of, which did not impair the sovereign's [92 ] full and absolute property in the lands, nor prevent the free disposition thereof by him,— a right which was fully exer- cised by the Cortes of January 4th, 1813. The terminos publicos or consejiles, or the commons of towns, embraced all the public and vacant lands in Spain. § 133. The uniform policy was opposed to their alienation by the Crown, to whom the property therein appertained (L. 8, 9, 10, T. 21; L. 1, 2, 3, T. 23, and T. 24 and 5, Lib. 7, N. R.,) and this policy was affirmed in the most solemn form in the contract between king and people, known as condicion de millones, in which the representatives of the pueblos in the cortes granted to the crown the sum of seventeen millions in aid of its necessities (L. 2, T. 23, Lib. 7, N. R.,) and the sovereign promised for himself and sucoessors not to sell Tacant lands (tierras valdias) nor trees, nor the fruit thereof, and that the same should remain as theretofore to the common use and enjoyment. § 134. In America, shortly after its discovery and first settlement, the use and enjoyment of all the vacant public lands were declared to belong to the citizens in common (L. 6, 6, 7, 8, and 9, T. 17, Lib. 4, R. I.,) which are understood to be restricted in the same manner as in Spain to the citizens of the respective towns, within whose termino or demarkation the said public and vacant lands may exist, unless some special provisions have been made to the contrary as in L. 3, T. 8, Lib. 4, R. I., which ordains that " the Judiciary of the City of Mexico have jurisdiction, civil and criminal, within the fifteen leagues of the termino (fifteen leagues extended each way) but that the same be ofpasto comun (common of pasturage) foir all the citizens, dwellers, and settlers in New Spain, during such time as the same may be unoccupied with crops, as is pro- vided in our laws and ordinances." These laws and ordi- nances are the same as referred to above, viz : (L, 6,) " The lands and hereditaments whereof we shall make gift and sale in the Indies, the sown crop being removed, must remain for common of pasturage, (pasto comun,) except the dehesas regales y CQnsejiles^^^r-{h. 7.) " The mantes, pastos and aguag of the [ 93 ]" lugares, and the monies which shall be embraced in the mer- cedes which shall be made, or which we shall make of signii- ries in the Indies must be common for all the Spaniards and Indians, and we command the viceroys and audiencias that they cause this to be observed and fulfilled," (L. 8.) " Our will is to make, and by these presents we do make, the monte^ of rural fruit common, and every one may gather it and take away the plantas (trees planted) to set in his own lands" — (L. 6.) "We have ordained that the pastos, aguas, and monies. remain common in the Indies, and as some per sous, without our authority, have occupied a large portion of territory and lands in which they do not allow any one to put corral, nor bring thither their flocks, we command that all the pastas, monies and aguas of the provinces of the Indies be common to all those who now or hereafter shall be vecinos thereof,"