IX. Much stronger evidence, however, is exhibited in the record to show that the parties most interested in the mine, and who were engaged in working it, knew full well that the supposed title was invalid, as is fully shown by the correspondence between James A. Forbes and Alexander Forbes, or between the former and Barron, Forbes & Company. More than forty letters between these parties are exhibited in the record.

Brief references will be made to such as have the most direct bearing upon the question under consideration, omitting all such parts as are not material to the inquiry; but preserving the substance. 1. Under date of the 5th May, 1847, James A. Forbes suggests to William Forbes, but evidently in reply to letters received from Alexander Forbes, that it is of the most vital importance to obtain from Mexico a positive, formal and unconditional grant of the two sitios of land conceded to the claimant according to the decree appended to the contract, and also an unqualified ratification of the juridical possession of the mine which was given by the local authorities, including, if possible, the three thousand varas of land given in that possession as a gratification to the discoverer. He also suggests in the same letter that the documents should be made out in the name of the claimant and his partners.

2. No letter is produced which is a direct re204*1 ply to that communication. *Record shows that Alexander Forbes visited California early in October, 1847, and it appears that he remained there until near the close of March, 1848, engaged, at least for a part of the time, in exploring the mine and in overseeing the prudential affairs of the Company. During that period other persons acquired an interest in the mine, and among the number were Barron, Forbes & Company, and they accordingly wrote to James A. Forbes, under date of the 11th of April, 1849, informing him that hereafter he might expect that the mine would be worked to the utmost of its capabilities of production. On the 20th of May, 1849, they wrote another letter to the same individual, saying, in effect, that from certain circumstances that he had mentioned it might be necessary to purchase some lands in the vicinity of the mine and hacienda of New Almaden, and authorized him to make such purchases, not to exceed in price the sum of $5,000, as might be necessary to the secure possession of the mine and hacienda, or to effect such other arrangements as he might deem necessary for that purpose.

Seven days after the date of that letter, and before it was received, James A. Forbes arrived at Tepic, and while there left with Alexander Forbes the following memorandum to be delivered to the claimant: "Very private. Memorandum of the documents which Don Andres Castillero will have to procure in Mexico.

"1st. The full approbation and ratification by the Supreme Government of all the acts of the alcalde of the district of San José in Upper

"2d. An absolute and unconditional title of two leagues of land to Don Andres Castillero, specifying the following boundaries: On the north by the lands of the Rancho of San Vicente and Los Capitancillos; on the east, south and west by vacant lands or vacant highlands.

"3d. The dates of these documents will have to be arranged by Don Andres, the testimony of them taken in due form, and *besides, [*205 certified to by the American Minister in Mexico, and transmitted to California as soon as possible.

"Tepic, May 27, 1849."

Proofs in the case show that the author of that memorandum returned to San Francisco, and on the 28th day of October following, in a letter to William Forbes, he again called his attention to the importance of his former suggestions as to the necessity of perfecting the title to the mine. In that letter he also referred to verbal explanations previously given by him to his correspondent and Alexander Forbes, and then proceeds to impress upon the mind of his correspondent the vast importance of securing from Mexico the documents comprised in the memorandum left with Alexander Forbes, when he was in Tepic, for the claimant. Two days afterwards he wrote again to Alexander Forbes, in which letter, among other things, he says to his correspondent, you will now readily perceive the great importance of my advice to you to purchase a part both of the lands of Cook and of the Berreyesas. You were of the opinion that this measure would not be necessary in view of the supposed facility of getting the title to the mine perfected in Mexico, and he complains that more than five months have elapsed since it was decided that the claimant should procure the necessary documents in that city, and that they have not been sent to him. 4. His description of his situation shows plainly that he was in great want of the documents. because he says that on the one side he depended upon the precarious and illegal possession of the mine granted by the alcalde of the district to the claimant, who was himself in reality the judge of the quantity of land given by the Alcalde; and on the other side, he says he was attacked by the purchasers of the same land declared by the claimant himself to comprise the mine. Evidently that letter was regarded as one of importance, for it called forth two replies, one from Barron, Forbes & Co., and one from Alexander Forbes. By the one first mentioned, he was informed by his correspondent that on the 13th day of the same month they had inclosed to him a notarial copy of the grant of land made by the Mexican Government to the claimant.

*They acknowledged therein the re- [*206 ceipt of his letters, thanked him for his able conduct, expressed satisfaction in view of the document sent, that he had not been obliged to purchase the land of Berreyesa, but submitted the matter to his best judgment, requesting him, however, to keep in view, "that at all hazard, and at whatever cost, the property of the mine must be secured," adding, "Castillero, we expect will soon be here from Lower California, and if

anything can be done in Mexico, he is the fittest person to procure what may be wanted." Recurring to the other letter, it will be seen that it was more guarded, but the writer recommends that his correspondent and agent should proceed, without fear of disapproval, or waiting for instructions, in taking such measures as shall preserve this valuable "negotiation" from any risk from those unprincipled claimants who have lately given him so much trouble, or from any other proceedings that may take place.

5. Another letter, also, was written by Alexander Forbes, to James A. Forbes, under date of the 1st of December, 1849, in which he stated that the copy of the grant of land made to the claimant was, by mistake, not the one meant to be sent; and he explains the difference, which was, that the one sent was directed at the foot to the Governor, but the proper one was directed to the claimant, and was deposited at Monterey. Explanation is also given as to the difference in the legal effect between the two documents, which was, as explained, that by the first one the delivery by the Governor was perhaps necessary, whereas the other, being addressed directly to the claimant, did not require that formality, nor was any other proceeding necessary, thus making it, as the writer affirmed, a better document than the greater part of the other titles for lands in that department.

Having made these explanations, he then expressed the hope that the well known cleverness of his correspondent had already enabled him to find out the mistake; suggesting, but rather doubtingly, that the one previously sent should be withdrawn, and the second one substituted in its place; but presently, as if upon reflection, mentions another difficulty which might arise, and that was that the copy of the grant of the 207*] two sitios of land *inserted in the contract of lease or avio was also directed to the Governor, and in view of that fact he finally decided to send a copy of all the documents and leave it to the good judgment of his correspondent to make such use of them as he should think proper. Nothing need be remarked respecting the copy of the document last sent, except to say that if it was addressed to the claimant it was a forgery, as the whole evidence shows that but one dispatch upon the subject was ever issued by the Minister of Relations, and that was directed to the Governor.

6. Reference will next be made to another letter from Alexander Forbes under date of the 3d of February, 1850, which is also addressed to the same person as the preceding letter. Among other things the writer states that he has every reason to believe that the documents mentioned by his correspondent would be found in the City of Mexico, and as the claimant would return that way he had no doubt they would be procured. In another part of the same letter he also states that at present they think it may be the best plan "to get an authenticated copy of the approval of the Mexican Government of the grant of three thousand varas given by the alcalde on giving possession of the mine," "as a doubt may be started whether the alcalde, acting as the 'Jues de mineria,' had a right to make this grant, yet if approved by the Government of Mexico, before the possession of the country by the Americans, there could be no doubt on the subject."

Castillero says such approval was given and that on his arrival in Mexico he will procure a judicial copy of it. This is the plan we shall adopt if we hear nothing from you to alter this resolution. Writing from the mine, James A. Forbes, on the 26th day of February, 1850, replied to that letter, and the importance of that reply makes it necessary to give a somewhat extended extract from it as disclosing the intent and purpose of the entire series. Speaking of the claimant, he says:

"He succeeded in obtaining the grant of two sitios to himself on the mining possession in Santa Clara, while that very Act of Possession declares that the mine is situated on the lands of one José R. Berreyesa, five leagues distant from Santa Clara, and *you will at once [*208 perceive that such a discrepancy would not fail to attract the attention of United States Land Commissioners and to put the case of the mine in great risk in the judicial ordeal to which its title will be subjected.

"Without troubling you with what I have so many times written and explained to you verbally, on the importance of the acquisition of the document, I will only say now what it must be, and it is this:

"1. A full and complete ratification of all the acts of the alcalde of this jurisdiction in the possession of the mine.

"2. A full and unconditional grant of Castillero of two sitios of land covering that mining possession, expressing the boundaries stated by me in the memorandum I left with you at Tepic. Both of these documents to be of the proper date, and placed in the proper governmental custody in Mexico; and,

"3. The necessary certificated copies of them duly authenticated by the Amercian Minister in that capital, taken and sent to me at the earliest possible moment."

Prompt reply was made by Barron, Forbes & Co., to that communication, under date of the 2d of March, 1850, in which they say: "Mr. Barron and Don Andres Castillero, are about to proceed to the City of Mexico and will attend to what you have recommended. When that letter was written, the persons therein named were about to proceed to Mexico, but Alexander Forbes, nine days later, wrote a letter to the same correspondent, in which he stated that Mr. Barron and Castillero have gone off to Mexico, and I wrote them to-day respecting the document you know of, which, if possible, will be procured." Wishing, doubtless, to keep his correspondent well advised of the efforts being made to comply with his requisition for the title papers to the mine, he wrote him again on the 7th of April, 1850, in which he stated "that Mr. Barron and Castillero have arrived in Mexico, and have every prospect of finding the documents you are aware of, and which will, of course, be forwarded as soon as possible."

*

Counsel for claimant admit that every one of these letters are genuine, and the proofs in the case are full to that effect. Comments upon these extraordinary documents are unnecessary, as they disclose their own construction [*209 and afford a demonstration that those in the possession of the mine, holding it under conveyances for the claimant, knew full well that he had no title.

his assigns may select, subject to the following conditions: First, that the said pertenencias shall be contiguous, that is to say, in one body; and second, that within them shall be included the original mouth of the mine, known as New | Almaden.

titled to our approbation, as they have undoubt edly been public benefactors. Truly, their object was gain; but they have done that which poverty could not accomplish, and they have done that which the United States, as the suc cessful litigant, will, in all human probability, fail to do that of being successful miners. Much stress has been laid on the fact, that James Alexander Forbes proposed to his associates to forge a title to this mining property; Forbes, apprehending that Castillero's claim was not valid, because the proceeding to acquire a legal interest was irregular. But no steps were taken to fabricate an apparent title, nothing was done towards its accomplishment. The proposition died in its conception, and as a controlling circumstance in the case, the fact is worthless.

1. That Castillero discovered the mine, is true beyond controversy.

Having thus fully expressed my concurrence in the decree rendered by the district court in favor of Andres Castillero and his assigns, and my dissent from its reversal by this court, I will add that, in my opinion, it is fully shown by the testimony and documents in the record that in nothing done by Castillero or his assigns, in connection with the mining claim, is there any proof of fraud; and I believe, from the testimony and from those documents, that the petitioner and his assigns have rights under the 8th Article of the Treaty with Mexico, of which they cannot be deprived by any judgment rendered by this court or its proceedings upon the record brought into this court by appeal.

3. Nor is it open to any dispute, as it seems to me, that Castillero's right, as a discoverer, was recognized by the Supreme Government of Mexico, as a valid and highly meritorious

claim.

4. The mine was never denounced by anyone for irregularity in the proceeding to perfect the title to it, nor for abandoning the possession.

In this condition the claim stood when we acquired the country; and we are bound by the Treaty to protect all just private interests in lands in the territory acquired by it. I, therefore, think the judgment of the District Court should be affirmed.

I concur with Mr. Justice Catron.

R. C. Grier.

Mr. Justice Wayne, dissenting: I concur with Mr. Justice Catron and Mr. Justice Grier, for the reasons given by them, and for other reasons expressed in the printed 213*] opinions of Judge *McAllister and Judge Hoffman, in dissenting from the judgment of this court just announced in this case.

I think that the claim and the title of the petitioner, Andres Castillero, to the mine known by the name of New Almaden, in Santa Clara County, Northern District of the State of California, is a good and valid claim and title, and that the said Andres Castillero and his assigns are the owners thereof, and of all the ores and minerals of whatsoever description therein in fee simple. In my judgment, also, I concur with the learned judges of the district court, &c., &c., that the said mine is a piece of land embracing a superficial area, to be measured on a horizontal plane, equivalent to seven pertenencias, each pertenencia being a solid, of a rectangular base, two hundred Castilian varas long, of the width established by the Ordinanza de Mineria of 1783, and in depth extending from and including the surface down to the center of the earth; said pertenencias to be located in such manner as the said Andres Castillero or

best way of showing my appreciation of the law and merits of this case, and of his judi- [*214 cial learning and research in connection with it: The claimant in this case asks the confirmation of his title to

1st. A mine of quicksilver situated in Santa Clara County, and called the mine of "New Almaden," including three thousand varas of ground measured in all directions from the mouth of the mine.

2d. Two square leagues of land situated upon the land of the above-mentioned mining possession.

It is objected that this court has no jurisdiction to decree a confirmation of the former claim. The objections relied on by the United States are two:

1. That by the Act of 3d March, 1851, the jurisdiction of this court is confined to cases where the interest claimed is a fee simple interest, or such as in equity should be converted into one, and that such interest was not held by the owner or grantee of a mine by Mexican law.

2. That the subject-matter of this claim is not "land," within the meaning of the Act.

The first objection is not only wholly unsupported by the words of the Act, but it is inconsistent with the sense of justice and the sacredness of treaty stipulations which we must presume to have actuated Congress.

1. The Act declares that every person claiming lands by virtue of any right or title derived from the Spanish or Mexican Governments shall present his claim, etc.

It may

There is thus no specification as to the nature of the claim, except that it must be to "land," nor of the estate or interest claimed. be leasehold or freehold, conditional or indefeasible, for years or in fee.

2. That such estates constitute property, in its fullest sense will not be denied.

If, then, claims to such estates in lands cannot be presented for confirmation under the Act of 1851, or if presented, are to be rejected, this species of property in land is not merely unprotected, but by the terms of the Act it is confiscated; for the 13th *section provides [*215 that all lands, the claims to which have been finally rejected, or which shall not have been

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