But assuming that the Treaty was concluded on the faith of this declaration, the rights of an individual to his property cannot be affected by it.

The stipulation in the Treaty by which the property of the inhabitants of the ceded territory was secured, conveyed to them no additional rights. 'An article to secure this object, so deservedly held sacred in the view of policy as well as of justice and humanity, is always required and never refused.' Henderson v. Poindexter, 12 Wheat., 536.

'When such an article is submitted to the courts, the inquiry is, whether the land in controversy was the property of the claimant before the Treaty.' United States v. Arredondo,

6 Pet. 712.

If, then, the land in controversy was the private property of the claimant when the country was acquired, it must have remained such, though no Treaty had been made. The United States do not claim to have acquired the ownership of any other property than the public property of the enemy, nor could they justly have demanded that Mexico should assent by treaty to the confiscation of any property the right to which was vested in private individuals. If, then, the United States have been willfully or accidentally deceived, as to the amount 367*] of property held in private ownership *in the ceded territory, they may have a right to demand a return of some portion of the pecuniary equivalent paid by them.

The fraud or mistake of the Mexican Commissioners can have no effect upon a private right held sacred by the laws and usages of all civilized nations, which was not derived from the Treaty, and which, had it been known to exist, the United States would have been bound to respect.

These observations are made with reference to the general proposition maintained at the bar, viz.: that the declaration by Mexico that no grants had been made subsequent to May 13, 1846, invalidated all such grants to the same extent as if a stipulation to that effect had been embodied in the Treaty."

In the brief filed in the case at bar, the court is invited to review the grounds of the foregoing opinion; and the question is discussed by the counsel for the United States with characteristic ingenuity and ability.

The authority chiefly relied on in support of the position taken by the counsel for the United States, is Bynkershoek.

*

*

"We make war," says the author, "because we think that our enemy, by the injury he has done us, has merited the destruction of himself and all his adherents; as this is the object of our warfare, it is immaterial what means we embrace to accomplish it." "A na tion which has injured another, is considered, with everything that belongs to it, as confiscated to the nation that has received the injury. To carry that confiscation into effect, may certainly be the object of the war, if the injured nation thinks proper."

The doctrine here maintained, that in war, poison and every species of fraud may right

demnation of mankind. It may be the censure on Bynkershoek is not wholly deserved, inasmuch as he expresses no approval of those practices, but differs from other writers mainly in distinguishing between the absolute rights of war and those voluntary relinquishments of them which are dictated by humanity and generosity.

*But if it be admitted that humanity, [*368 Christianity, and the usages and rules observed by all civilized nations (which constitute public law), forbid, even in war, the use of certain means, the discussion whether such rights abstractly exist, would seem to be a disputation savoring rather of the subtility of the schools than of that practical sense which seeks to discover and establish the actual rules by which nations in a state of war are governed.

That the rights of war, as deduced by Bynkershoek, from a consideration of its abstract nature, are mitigated by the laws of war is established by the general consent of nations, with respect to the effects of conquest, as well as to the mode of warfare, is proved by the general recognition of the principle that, on the conquest of an enemy's territory, private rights of property are to be protected.

But if a nation which has injured another is to be considered as confiscated, with all that belongs to it, to the nation that has received the injury," this confiscation must extend to private as well as public property.

A declaration of war, undoubtedly, involves the assertion of the right to measure and forcibly to exact an indemnity for the wrong which has occasioned the war.

To seize, to conquer, or to destroy an enemy's goods, his territory or his armed adherents, are but the means of exacting this indemnity.

For

The hypothesis of an antecedent confiscation, to enforce which the seizure is affected, in no way affects the question. The moral justification of the supposed confiscation has still to be considered-in other words, the justice and rightfulness of the war.

But whatever be the reasonableness or necessity of supposing this theoretic confiscation by belligerents, of everything belonging to the enemy, it is manifest that by the laws of nations the confiscation is waived where territory is. conquered, so far as respects private property; and especially where the conquerer, by the terms of the treaty of cession, has bound himself to respect all rights of private property existing at the date of the conquest.

To repudiate that obligation with respect to any property held in private ownership on the ground that, though private property when the conquest was effected, it was public property ten or twenty or thirty years before, when the war commenced, and that a writer on public law has said, that the declaration of war is a confiscation of all the property of the enemy, and that the conquest was merely carrying into effect the confiscation, would seem an attempt to justify the breach of a plain and positive obligation, which needs but to be stated to be condemned.

The obvious and natural construction of the Treaty is, I think, manifestly the true one, viz.: that all private property bona fide acquired, and held as such by a legal or equitable title obtained under the former government, is to be respected by the belligerent 370*] *to whom by conquest and treaty the rights of sovereignty have been transferred.

I do not think it necessary further to discuss this question. It is enough to say that I have attentively considered all that is urged by way of argument or illustration in the brief filed by the counsel for the United States. I have found nothing to which the answer did not appear to me easy, or which has shaken my confidence in the justness of the views previously entertained by the court.

The question might well have been dismissed without argument; for we have an authoritative decision of the Supreme Court on the point. In the case of The United States v. Pico, 23 How., 326, the court says: "In the Act of Congress of 1851, and the decisions of this court that day (viz.; July 7th, 1846, the date of the capture of Monterey and constructively of the conquest of California) is referred to as the epoch at which the power of the Governor of California, under the authority of Mexico, to alienate the public domain, ceased." As, however, the point then before the court was the determination of the precise date of subversion of the former government, and to decide upon the validity of acts done under Mexican authority after that event-while the validity of acts done previous to it was not questioned, nor does the point raised in this case appear to have been presented to the court -I have thought it not improper to examine at some length the acute and ingenious argument submitted by the counsel for the United States.

I have given to this case much and anxious consideration. The preparation of this opinion has required more labor than even its great length would indicate.

Voluminous as it is, I am, nevertheless, aware that it is in many respects incomplete. To have treated at length every point in the case would have extended it far beyond all reasonable limits.

I cannot conclude my labors on this most important case, without acknowledging the great assistance which the court has [*371 derived from the very able and eminent counsel engaged in it.

Their indefatigable and exhaustive industry has presented to the court every argument, authority and illustration which profound and patient study, not only of the American and English, but of the Mexican and Spanish laws, could suggest; together with every view of the complicated facts in the case, and of their relations to each other, which could assist the court in its study of the mass of depositions which have been taken.

To the court has been left merely the duty of considering the suggestions, and collecting and combining the abundant materials contained in the briefs of counsel.

On the whole case my opinion is:

That the claimants are entitled to seven pertenencias, to be measured in the manner, of the form, and of the dimensions prescribed in the Ordenanzas de Mineria of 1783.

And, also, that they are entitled to two square leagues of land, to be located on the land of their mining possession, but in such a way as not to include any land granted in private ownership, by competent authority, previously to July 7th, 1846.

[Mr. Ch. J. Taney concurred in the foregoing opinion, although he did not sit in this case.]

THE UNITED STATES, Appt.,

v.

JOHN D. GALBRAITH, John Sime, Richard H. Sinton, and David T. Bagley.

(See S. C. 2 Black, 394-407.) Fraudulent papers in Mexican land claims— documentary evidence of title-suspicious claim.

The use of fraudulent papers, by the claimant of a California land claim, in support of the claim, can but excite apprehension and caution.

Of the documentary evidence of title under the

NOTES. Mines, ownership of; U. S. Statute asto. Mines belong to the owner of the soil, whether the government or a private individual. Frémont v. United States, 17 How. 542; U. S. v. Castillero, supra; Ah Hee v. Crippen, 19 Cal. 491: Mining Co. v. Boggs, 3 Wall. 304 14 Cal. 279; U. S. v. Parrott, 1 McAll. 271; Goldhill & M. Co. v. Ish, 5 Oregon, 104.

Where the trustees of a town own an absolute title in the streets, they own the coal under them. Hawesville v. Hawes, 6 Bush, 232.

One person may own the surface and another mines, and different persons may own different strata or minerals under same land. Stewart v. Chadwick. 8 Clarke, 463; Adam v. Briggs Iron Co. 7 Cush. 361 Ryckman v. Gillis, 57 N. Y. 68; 15 Am. Rep. 464. Coal and mineral in place are land. Caldwell v. Fulton, 31 Pa. St. 475; Hartford, etc., Ore Co. v. Miller, 41 Conn. 112.

Proof of title to minerals can be made out by acts of ownership and length of possession. Desloge v. Pearce, 38 Mo. 588; Barnes v. Mawson, 1 M. & S. 77.

The exclusive right to dig all coal is an incorporeal hereditament. Dark v. Johnston, 55 Pa. St. 164.

Danglada, a witness of the claimants. He testified before the district court, that the papers were delivered to him by Padilla in the month of December, 1850, for the purpose of making a sale of the lands. That at this time they had been mortgaged by Luco, the owner, to Padilla, and both were interested in the sale. The witness acted as the agent of both. On his examination in chief, he testified that the date of the paper was not altered when it came into his hands, nor while | in them, and that the alteration must have been made afterwards. But, on cross-examination, his attention was called to a deed 406*] *executed on the 1st March, 1852, by him, as attorney for others, of this tract, in which is recited the grant by Pico to Padilla as of the date of 12th February, 1846, and he was asked to explain this date, when he was obliged to admit that he might be mistaken. This is all the explanation that has been offered.

The case of the U. S. v. West's Heirs, 22 How., 315, has been referred to as an instance of the confirmation of a Mexican grant which was subject to the imputation of a forgery in the alteration of the title in form. The alteration consisted in enlarging the grant of one and a half leagues to two and a half, "un sitio to dos sitios." The grant was made to West in 1840. He had been in the possession and occupation of the ranch from 1838 till 1849, when he died. Had made extensive improvements in buildings and cultivation; among other improvements a grist-mill and cultivation of two hundred acres of grain and vegetables, besides a stock of 200 horses and 2,000 cattle. The case is not fully reported in 22 How., and the above facts are obtained from the original record. The Attorney-General admitted the grant when made was genuine and honest, and that the only objection to it was the alteration. The papers, after the death of West, came into the possession of the widow, and were necessarily intrusted to other hands for the purpose of procuring a confirmation. There was no evidence tending to prove that the alteration took place while in the hands of West, and taking the admission of the government, that the original grant was genuine and honest, in connection with the possession and improvements, this court concurred with the court below in the confirmation of the league and a half. The features of that case upon the evidence were strikingly different from the present one.

There has been no possession or occupation in this case deserving of notice, in aid of the title, or as evidence of any merit on the part of the grantee. Indeed, the weight of it is decidedly against a possession beyond that in common with the owners of other ranches in the neighborhood. The grant was made, according to its date, only twenty-five days before the United States took possession of the 407*] country. Padilla had a *previous grant of the ranch Roblar de la Miseria, in the same neighborhood, made on the 25th November, 1845, only a few months before the application for the one in question. Some of the witnesses confounded the occupation of this tract for that of the Balsa de Tomales. Another difficulty in the way of yielding our assent to the integrity of this grant is, that as early as the

last of May or the 1st of June, 1846, Padilla was at Sonoma, or in that neighborhood, some five hundred miles from Los Angeles, where this grant purports to have been made. He was at the head of a party of Californians in the disturbances which about that time broke out between them and the American settlers, and was charged with having participated in the murder of two of them. He fled, about the middle of the month, to the south side of the Bay of San Francisco and joined the forces of Castro, the Commander-in-Chief of the Californians; and, according to the evidence of Morena, the Secretary, he came down with Castro and met Governor Pico and party at Santa Marguentta, which was some one hundred and fifty miles below Monterey. Castro and Pico united their forces and passed on to Los Angeles, where they arrived on the 21st or 22d July, and remained till 10th August, when they fled South. It is clear Padilla could not have been at Los Angeles at the time the grant purports to be dated, and ground for strong doubt as to his being at Monterey May 14, at the date of the petition. All the parties to these documents of title, Pico, Moreno, M. Castro and Padilla, where with the forces of Pico and General Castro at Los Angeles during the nineteen or twenty days they remained at that place. It was within their power to have made this grant while thus remaining together; and, as it is admitted that the certificate of approval of the Departmen tal Assembly was fabricated by two of them, we cannot but distrust, upon all the evidence, that the espediente, including all the papers relating to the title, was fabricated in the same way and at the same time.

[Mr. Chief Justice Taney concurred in this opinion although he did not sit in this case.]

*THE PEOPLE OF THE STATE OF [*620 NEW YORK, ex rel. OF THE BANK OF COMMERCE, Plffs. in Err.,

v.

THE COMMISSIONERS OF TAXES AND ASSESSMENTS FOR THE CITY AND COUNTY OF NEW YORK.

(See S. C. 2 Black 620-635.) U. S. stock, when part of capital stock of state bank, not subject to state taxation.

The stock of the United States, constituting a part or the whole of the capital stock of a bank organized under the banking laws of New York, is not subject to state taxation.

It makes no difference that the tax is on the aggregate of the tax payer's property, and the stock is not taxed by name. Federal stock is not subject to the general taxing power of a state.

The tax upon the stocks is regarded as a tax upon the exercise of the power of Congress "to borrow money on the credit of the United States."

If an encroachment on or usurpation of, this power, by a state is permitted, to any extent, the authority of the state to an indefinite limit, even principle involved would carry the exercise of the to the destruction of the power.

If the right to impose a tax at all exists on the part of the state government, "it is a right which in its nature acknowledges no limits."

The attempted exercise of state authority in such cases, is in derogation of the powers granted to the General Government, within which it is supreme. Argued Feb. 27, 1863. Decided Mar. 10, 1863. NOTE. Taration of capital stock of corporations-see note, 58 L. R. A. 513.