In investigating the genuineness of these documents, it will be convenient to consider: 1st. The proof of the signatures attached to them.

2d. The evidence tending to establish that the documents were executed at the time they bear date, and were filed or archived in the alcalde's office. And,

3d. The proofs which show that, in fact, the mine was discovered and denounced, and the judicial possession given, as stated in the Act of Possession.

The act of possession is signed by Antonio Maria Pico, as alcalde, and by José Noriega and Antonio Suñol, assisting witnesses. All these persons have been sworn, and testify to the genuineness of their signatures, and that they were affixed on the day the instrument bears date. The genuineness of these signatures, and that of Castillero, is also proved by other witnesses.

I do not understand that the fact that the instruments were signed by the parties whose names they bear, is seriously questioned, as all of them, except Castillero, were produced, and 248*] *testified not only to their own signatures, but to the facts which the documents recite. The theory of the government, which supposes these statements to be false, must admit their readiness to affix their names to antedated documents.

The real questions, therefore, are, when were these documents prepared and signed? And when were they placed in the alcalde's office? 2. On this point we have, as before stated, the evidence of Pico, the alcalde, and the two subscribing witnesses, Suñol and Noriega.

We have also the testimony of José Fernandez, who was Sindico del Juzgado and Escribano of the court of 1845. This witness not only swears to the handwriting of the documents and the genuineness of the signatures, but states that he saw the espediente in 1845, when it was brought to him by Gutierrez, in whose handwriting the body of the decree is. He also swears that he saw it again in 1849, among the archives of the office, he being then second alcalde.

James W. Weekes, a witness called by the government, testifies that he saw the espediente in 1846-7, when Burton was alcalde, and in 1848, when he was himself Alcalde. He is unable, however, positively to identify the espediente now produced with the "little book" which he saw in the office when Burton was alcalde. This witness, in 1848, certified, at the request of Mr. James Alexander Forbes, to a copy of the espediente. The copy was prepared by James Alexander Forbes from a document handed to him by Alexander Forbes, of Tepic (who was then in California), not from the original in the alcalde's office. The certificate of Weekes, that it was a faithful and literal copy of the latter document, was obtained, but no compari- | son was made of the copy made by Mr. Forbes with the original; the witness supposing, as he states, that it was correct. The copy thus certified to by Weekes differs from that found in the alcalde's office in several particulars, which will hereafter be noticed.

The claimants have also produced the original inventory of papers and effects in the alcalde's office, which, as was customary, 249*] *was, on the 1st of January, 1846,

signed by the out going alcalde, Pico, and receipted by the incoming alcalde, Chabolla.

This document is produced by the Clerk of the City of San José. It was found amongst other papers which had accumulated under the government of the alcaldes of the Pueblo, and which now form part of the archives of the city. The signatures and rubrics of Pico and Chabolla to the inventory are proved; and the document itself is in the handwriting of José Fernandez, the Escribano or Secretary of the Juzgado.

In this inventory, amongst nearly a hundred entries of papers and records, and of the smallest objects belonging to the office-such as candlesticks, old knives, tables and benches is found a note of a document entitled "Posecion de la mina de Santa Clara á Don Andres Castillero."

No attempt has been made to impeach the genuineness of the signatures to this document, nor is it said that there is anything in the handwriting of the important entry in ques-. tion, or in its position on this list, which could suggest the idea of a possible interpolation. Unless this entry be forged, it would seem conclusive evidence that a document of the kind described was on file in the alcalde's office on the 1st of January, 1846.

Another inventory, of a similar kind, made on the 10th day of November, 1846, about nine months subsequently to the former, has been produced by the United States from the archives of San José.

In this inventory, no entry of the document in question is found. If the lists were in other respects similar, the omission of this one item might possess such significance. But the two lists seem to be different in many particulars; and though some of the entries are alike in both, several which appear in the first are wanting in the second. That all the papers mentioned in the first inventory must have existed on the files of the office, and should have been noted in the second inventory, is evident. When, therefore, we find not only the "Posecion" of the Mina de Santa Clara, but several other documents, omitted in the second inventory, we necessarily conclude that the latter was prepared in the loose and inaccurate manner in which the *public business [*250 of such offices was usually conducted in those primitive times.

A striking illustration of the incompleteness of the second inventory is presented by the evidence offered by the United States. Three documents are produced from the Archives of San José, purporting to be orders by the alcalde for the publication of the denouncements of mines-one of the lands of Justo Larios, another on those of José de J. Vallejo, and a third on the rancho de Ojo de la Coche. These orders are dated in April, March and June, 1846. I find no one of them noted in the inventory made in the succeeding November. And yet, both the documents and the inventory are produced as genuine by the United States.

I can see nothing, therefore, in the omission of the entry of the possession of the mine of Santa Clara in the second inventory which, in the absence of any suggestion that the handwriting or the color of the ink of the entry in the first inventory differs from those of the rest

Other allusions to and recognition of the possession and grant of three thousand varas, in letters, judicial proceedings, etc., at a late period, but previous to the supposed date of their fabrication, will subsequently be considered.

Among the documents alleged to have come from the City of Mexico, traced copies of which are exhibited, was a communication from Pio Pico, Governor of the Californias, to the Minister of Relations, dated February 13, 1846. In this letter Governor Pico states that he incloses a letter from Don Andres Castillero, apprising him of the important discovery of a quicksilver mine, and transmitting a sample of une quicksilver. He, therefore, begs the Minister of Relations to bring it to the superior knowledge of His Excellency the President, etc. On the margin of this letter is the usual note, stating its reception on the 6th of April, 1846, and that it is noted with satisfaction, etc. The letter of Castillero alluded to in the foregoing, dated 10th December, 1845, is also produced from the Mexican Archives. On searching the archives in this city, for records of this correspondence, there was found the borrador, or office copy, of the letter from Pi● Pico, and

he visited the mine in company with Capt. Hinckley; that the latter introduced him to Castillero, the owner of the mine, who showed him the excavations, the heaps of ore, etc., and explained the process of extracting the metal. Impressed with the value of the mine, he spoke slightly to him about purchasing it; but Castillero was not disposed to converse on the subject. Castillero informed him that he had acquired his mine by denouncement, and explained the nature of the proceeding. Acting on this information Col. Frémont subsequently denounced the mines upon his own property of Mariposa.

He also adds, that Capt. Leidesdorff, with whom he had spoken as to the purchase of the mine, supposed it might be effected for $30,000, "an immense sum of money, in California in those days."

and the information, with a sample of the quicksilver produced, by him transmitted to Mexico. That in May, 1846, Mr. Larkin officially communicated the fact of the discovery and the working of the mine, with an explanation of the mode of acquiring title to it, under the Mexican laws, to our government.

That in June of the same year, he informed Mr. Judd of the discovery of the mine in 1845, and the fact that it had been immediately denounced.

That in January, 1846, Col. Frémont visited the works, and conversed with the [*258 "owner" that its reputed value was then about $30,000.

That it had been worked from the November or December preceding by a person employed by Castillero, and continued to be worked by the same person, until August or September, 1846.

It has appeared to me incredible that Castillero, a Mexican, acquainted with mining laws, should, on discovering so valuable a mine, have omitted to denounce it. That he knew the necessity of the proceeding, we learn from Frémont, as did also Larkin, a foreigner, as is

To suppose that Castillero, with a knowledge of the great value of the mine, of the necessity and efficacy of a denouncement, neglected, notwithstanding his statements to the Governor, to take the simple proceedings he is alleged to have done, and that Larkin was entirely mistaken as to the fact of his having done so, is to suppose what I cannot but consider a moral impossibility.

The working of the mine, so far back as December, 1845, is also proved by Mr. Wm. G. Chard. This witness testifies that he was em ployed by Castillero and the priest Don José Maria Real; that he went there to open the mine in November or December, 1845; that the metal was extracted by heating the ore in gun-shown by his dispatch. barrels; that while working in this way, the possession was given, in December, 1845, or January, 1846. The witness enumerates among those present on that occasion, the alcalde Pico, Suñol, Noriega, Fernandez, and the old man Berrevesa. He does not recollect to have seen Castillero on the ground when possession was given--a circumstance, as observed by counsel, not surprising for Castillero, Chard states, was 257*] constantly coming and going, and on one visit stayed there eight days; but the statement indicates the good faith of the witness in declining to swear to what he did not recollect. Mr. Chard describes the operations at the mine. They were conducted by himself, another white man, a blacksmith whom they called Old Billy, and some Indians. He built a furnace and smelted the ore in some large whaler's try-pots, capable of holding three or four tons of ore. He remained in this employment until August or September, 1846.

Chard states himself to be a native of Columbia County, New York. He is evidently the "native of New York" to whom Mr. Larkin refers in his dispatch. His testimony is uncontradicted, and his character unimpeached.

There is much other testimony which corroborates the foregoing on various points, but which it is unnecessary to notice. It relates chiefly to the first visit of Castillero to the mine; his first experiments with the ore; his trip to Sutter's Fort and visit to Vallejo, at the baptism of whose child he was godfather, and who thus became his compadre, by which title he addressed him in his letters already cited; his return to Santa Clara, and the formation of the partnership between himself, Castro, Father Real, and the two Robles, in November, 1845. As this writing of partnership is conceded to be genuine, and as it relates to the working of the mine of silver, gold and quicksilver, on the land of Jose Reyes Berreyesa, the fact that the mine was discovered at that time must be taken to be admitted.

We thus find that early in December, 1845, the discovery and denouncement of the mine was made known to the Governor of California,

I am aware that the fact that the mine was denounced by Castillero, and claimed and worked by him as owner, does not necessarily show that a juridical possession of it was given, or that the record of that possession is genuine.

It is shown, however, by evidence in part introduced by the United States, that the juridical possession, as alleged to have been given, was recognized and alluded to in the correspondence of the parties, and in official acts of alcaldes, before the date at which, on the hypothesis of the United States, the forgery was committed.

So early as January 30th, 1846, James Alexander Forbes, in a letter to Eustice Barron, of Tepic, apprises the latter that "D. Andres Castillero, a sort of Commissioner from the Mexican Government, is now working a quicksilver mine near the mission of Santa Clara, which has yielded forty per cent. upon the assay of mineral employed;" and on the 5th of May, 1847, the same person, who had in the interval been placed in charge of the mine, in a letter to Alexander Forbes, who had become a part owner, urges him "to obtain from the Government of Mexico the unqualified ratification of the judicial possession which was given of [*259 the mine by the local authority of this jurisdiction, including, if possible, the three thousand varas of land given in that possession as a gratification to the discoverer." The fraudulent nature of this suggestion is obvious, but it nevertheless implies that a juridical possession and a ratification of three thousand varas had already been given, a ratification of which was thought necessary.

In the preceding March, the same person, to

gether with Castiliero, Castro, Real and the | Robles, had been sued by the owner of an adjoining rancho for working on it contrary to law. It would seem, from the imperfect record of that suit, produced from the archives of the Alcalde's office, that a survey of the mine was ordered and the plaintiffs mulcted in costs; a result which could hardly have occurred if the persons working the mine on the lands of another had been destitute of record evidence of their rights. The fact that a survey of the mine was ordered, would seem to be a recognition of the mine owner's right to his mine, and that the boundaries of his possession were capable of being ascertained.

may have been ignorant, and willing to comply with all that Alexander Forbes required; for the fact that the latter inserted such an allusion in the document he may have caused Weekes to execute, is at least evidence that at that early day he claimed that there was in existence an original act of possession, including a gracia of an extensive tract. It will be observed that the petition of Alexander Forbes to Weekes is dated January 19th, 1848. Its object was to procure the judicial ascertainment of the inclination and depth of the vein, to correct the boundaries of the former act of possession and to decide upon an increase of pertenencias and the square corresponding to them. On the 14th August, 1847, allusion to this But if, at that very time, Forbes had already suit, and a still more explicit reference to the fabricated, or was about to fabricate, an act of juridical possession, is made in an official letter possession, which was to be antedated and of James Alexander Forbes, then H. B. M. Vice- placed in the archives *where no docu- [*261 Counsel for California, to John Burton, alcalde. ment of the kind had hitherto existed, the apIn this letter Mr. Forbes informs the alcalde plication to Weekes, and the designation of that "two persons have commenced digging a pertenencias by him, would be wholly superpit, by the direction of Mr. Cook (the plain-fluous, if not absurd; for in the forged paper tiff in the former suit), within the limits of the which was to serve as the original act of posjuridical possession of the mine." He adds, session by the Mexican authorities, the des"Permit me to refer you to the documents which ignation of pertenencias might have been inexist in your office, upon which was founded serted and the boundaries established in any your conviction of the justice of your decision way the forger might desire. All objections or in March last, in relation to the claim of Mr. doubts as to the authority of an American alCook, and to request that you will be pleased calde to act under Mexican Mining Ordinances to adopt such measures for the protection of the would thus have been avoided; and the same owners of the mine, and of those who are legal alcalde who, according to the theory of the ly interested in the same, as you may deem most United States, was induced to recognize and conducive to that end." affirm the existence of an act of possession, either not in his office or recently forged and placed there, could, with equal facility, have been brought to recognize an act of possession which should be free from the errors and uncertainties which he was called on to correct, and which should contain as many pertenencias as he was desired to designate.

The genuineness of this letter is not disputed. It will be observed that, though written in August, 1847, it refers the alcalde to documents existing in his office upon which a decision rendered in the March preceding was based. 260*] *On the 19th of January, 1848, Alexander Forbes, who had come to California, made a petition to the alcalde, Weekes, to "visit and inspect the mine, as required by the Ordinances, and to determine the direction and inclination of the vein, for the purpose of reforming and correcting (since there is occasion for it) the boundaries of the former act of possession, and to correct such other mistakes as may appear in it."

In conformity with this petition, the alcalde proceeded to inspect the works; and having ascertained the true course of the vein, and admitted the right of the owner to an improvement of stakes (mejora de estacas), he established his boundaries, assigning to him four pertenencias, the location of which he designates, but without prejudice to the right and title of the mine (siendo constante el derecho y titulo de la mina) to the gratification or gift (gracia) of land conceded in the original act of possession.

Simular allusions to the original registry and act of possession are found in various judicial proceedings during the year 1849. On the 18th October of that year, Kobert Walkinshaw, between whom and James Alexander Forbes a contest for the possession of the mine had arisen, filed a complaint against the latter, averring himself to be "the owner of one eighth of the mine, by title derived under the original act of registry."

Previously to the filing of this complaint, Mr. Horace Hawes, a lawyer of much acuteness and very familiar with Mexican law, had denounced the mine before the alcalde for abandonment. In this denouncement he describes it "as known in its original title of registry as the Mine of Santa Clara."

In the proclamation issued thereupon, on the 23d of October, 1849, the alcalde describes the mine "as known and designated in its original Whether the four pertenencias which were act of registry as that of Santa Clara, and now thus designated were all which, under the Or-known by the name of New Almaden." On the dinances, a discoverer, though working in company, was entitled to, we will hereafter consider. The only purpose for which the proceed ing is now referred to, is to show that its date (January, 1848) and about the supposed time of the alleged forgery, "an original act of possession," containing a "gracia" of land of a much larger extent, is plainly alluded to as existing; nor is the force of this fact weakened by the circumstance that Weekes, the alcalde,

refusal of the alcalde to take jurisdiction of the proceeding, Mr. Hawes files a protest, dated 15th November, setting forth that, "besides having failed to work the mine, the alleged owners had never acquired any title thereto, by reason of the insufficient registry thereof, which he stands ready to prove [*262 in court by witnesses, records and documents," etc.

As Walkinshaw, though he had originally