their official capacity as representatives of the | land in California were made by Mexican auMexican Government. thorities after May 13th, 1846.

Senate Doc., 1 Sess., 30th Cong., Vol. VII., for 1847-48, No. 52, p. 83; Ib., p. 50; Message of President of U. S. of Feb. 22, 1848; Ib., p. 34. See, also, the President's Message of Feb. 8, 1849, to the House of Representatives, communi- If these grants were one of the causes of the cating the Protocol signed at the exchange of revolution, it is mere folly to say they were the ratifications of the Treaty, with the accom-issued after that event, and antedated. panying documents.

Although the grants of the Missions of San Gabriel and San Luis Rey were made on sale, they are nevertheless colonization grants. Sales were one of the most effective means of colonization.

The title in this case recites that the grantees "have rendered considerable service to the Sec-government, and also lent good assistance for the better preservation and security of the department under grantee of just recompense whenever the general Treasury should be released."

2. It is proved by the Protocol, signed by the Ministers of the two Governments, previous to, and as one of the conditions of, the exchange of the ratifications of the Treaty. 3. It is proved by the journal of the Depart-personal or pecuniary. "Servicios" is the word mental Assembly for the year 1846, showing that no grant was presented to it for approval after May 13th, 1846, dated later than May 2d, 1846, although it continued in session from time to time until July 24, 1846.

al Assembly, and the lands pronounced vacant and the sales or grants not only approved but ordered, to provide funds for the government Reference was excused in the Sutter case where none was ever had. 21 How., 170, 16 L. ed. 52 4. It is proved by the Secretary that the grants were registered in the proper books be fore delivered.

The Departmental Assembly seems always. in conjunction with the Governor, to have exercised a large jurisdiction over the Missions. They were clothed with the power of administering them as a branch of the public revenue, and as a subject of the public property. It is notorious that they granted the agricultural and pastural lands, once occupied by the Missions at pleasure. The regularity of these grants was always recognized by the Supreme Government of Mexico. The acts of Governor Alvarado in this respect were expressly approved in 1840. Their validity has been declared by the Supreme Court of the United States in several cases. U. S. v. Cervantes, 18 How., 553, 15 L. ed. 484; 19 How., 363, 15 L. ed. 666.

As the President of Mexican Congress could have ordered a sale, the recital in the grant by the Governor, that he had received power to sell, is evidence of the fact on the authority of Reading's case, 18 How., 1, 15 L. ed. 291, and of Sutter, 21 How., 170, 16 L. ed. 119, as to informe.

"Art. 5. The faculties of the governors of the departments in extraordinary case are those cting expeditiously and with due justice, to save the great interests of independence and the integrity of the national territory for the security of the tranquillity of the Republic, without which they cannot sustain those inestimable benefits."

It is well settled that the grant itself raises a presumption of authority, and devolves upon the government the necessity of proving the contrary. U. S. v. Peralta, 19 How., 347, 15 L. ed. 678.

Case of Reading, 18 How., 1, 15 L. ed. 291, and the case of Sutter, 21 How., 170, 16 L. ed. 119.

It is doubtless the intention of these grants to convey all the lands which pertain to the Mission at that time; the proof shows that those lands were considered as appertaining, which had formerly been in the possession of the Mission and remained ungranted at the date of the grant. They are granted by name, which is sufficient, as it presupposed definite boundaries and leaves their establishment to proof aliunde. U. S. v. Sutherland, 19 How., 365, 15 L. ed. 666; Bacon, tit. Grant, pp. 522, 524.

It is urged that the condition of these grants has not been complied with. The titles recite the payments and services which are also proved especially in the San Luis Rey case. The title recites the services performed and the money

The following are some of the powers con-advanced in the San Gabriel. ferred on the Mexican Government to meet the exigencies of the times:

"The Governor will have the power, the 30th article of the 87 of bases organicas conforming to Article 9 of 134, which regulates the Departmental Assembly. He can make all necessary expenses with the object of aiding the military in defense of constitutional order."

"Art. 2. This authority only lasts during the time constitutional order is threatened, December 9th, 1844."

Decree of the Mexican Congress, 21st December, 1845, p. 308: "The faculties which the Executives may receive throughout the republic are enlarged for the period of six months, in conformity with 198 article of the bases organicas."

On the 10th of March, 1846, the Minister of War and Marine issued a decree to the Governor of California, giving him full power, "that until the Supreme Government appropriates and sends you the necessary means, it relies on your patriotism and fidelity to dictate the means which you may judge necessary for the defense of that department, for which purpose you and His Excellency are invested with full powers."

Three days after the date of this decree, President Paredes issued, at the time he was absolute dictator, the following decree, which confers full and discretionary power upon the governors of departments.:

Executive Decree 13th March, 1846. "There is remitted to the governors of the departments, for their punctual observation, the circular of 24th of December of last year, in which is transmitted the enlargement of the faculties given to the Executive by the decree of the Congress dated 21st December, 1845, in conformity to the article 198 of bases organicas.

As to the condition of occupation implied by law, that was performed; as our troops found the grantees in possession in August, and ejected them by force.

The payment of the debts of the Missions was not a condition but a charge upon the estate, which the creditors may enforce at any time, if they have not already done so. Taft v. Morse, 4 Met., 528; Sheldon v. Purple, 15 Pick., 528.

If a condition, it was a condition subsequent, and no law of denunciation exists to forfeit the estate. Frémont's case, 17 How., 542, 15 L. ed. 241.

These titles are fully protected by the Treaty. They were made when Mexico had possession of the country, de facto and de jure, and before even Frémont moved with a view to conquest. They are property under the 9th article of the Treaty and protected as such, by its terms.

Again, the proof shows that it was the usage and custom for more than ten years in California, to grant land in payment of debts and services. The Act of Congress of 1851, which adopts this usage, gives the effect of a statute to the uses, as was held by the Supreme Court in the case of Mitchel v. The U. S., 9 Pet., 735.

Mr. Justice Clifford delivered the opinion of the court:

This is an appeal from a decree of the District Court of the United States for the Southern District of California.

Appellees, in their petition to the commissioners, represented that Governor Pio Pico, on the 8th day of June, 1846, granted, sold and conveyed in full property unto the first named appellee and one Perfecto, Hugo Reid, the Mission of San Gabriel, with all of the appurtenances appertaining to the same, whether they consisted in lands, improvements or cat

ANN

tle; and they also alleged that the juridical | 2. That they should thereafter and forever possession was duly given to the grantees of all provide for the support of the father minister 759*] that property, whether *buildings, vine- residing at the mission, and for the preservayards, orchards, gardens or land, and that the tion of divine worship. Authenticity of the grantees remained in peaceable and quiet pos- grant was proved before the commissioners by session of the premises until they were forcibly the testimony of one Nicholas A. Den, who ejected from the same, under the orders of an testified that he was acquainted with the handofficer of the United States. Representation writing both of the Governor and that of the also was, that the grantees, at the time of the secretary appearing on the document, and that purchase, were large creditors of the Mexican the respective signatures were true and genuGovernment, and that the sale was in all re- ine. Evidence to show a compliance with the spects fair and genuine, and for the full value principal conditions is entirely wanting, or that of the property. Other appellee claims title as the grantees ever went into the possession of grantee under the other original purchaser, and the property under the grant. Grant bears the record shows that a copy of that conveyance date on the 8th day of June, 1846, but it is acwas filed with the petition. companied by a proclamation, signed by the Governor, which, from its contents, though without date, must have been written at least a month later. Last named document recites that the forces of the United States were then in the occupation of the towns of Monterey, Sonoma, San Francisco, and other frontier places north of the department, "Where already waves the flag of the stars." Our forces took possession of Monterey on the 7th day of July, 1846, and the governor of the department well knew when that event occurred, for on that day the Mexican forces fled from that city, and never afterwards had possession of the place. [*761 Commissioners confirmed the claim, and the United States appealed to the district court.

III. Deposition of the secretary of the gov

witness ultimately testified that there was a written document given to the original grantees in the form of a title, but he admitted that he could not recollect the date.

I. Claimant introduced the grant described in his petition as the foundation of his claim, and it bears date as represented in the petition, and purports to have been signed by the Governor as therein set forth and alleged. Recitals of the document show that the grantees solicited the grant for their own benefit and that of their families, and yet the record furnishes no trace of any such petition. None such was in troduced, nor was there any attempt made at | the hearing to account for its absence. Authority to grant the property of the Missions, as specified in the instrument, is claimed to have been derived from the Departmental As sembly. Reasons assigned for the exercise of the power were, that it was necessary both for the payment of their indebtedness, and to pre-ernor was then taken by the claimant, and the vent their total ruin, and as if those reasons were insufficient or unsatisfactory, it is added, "And to provide resources that may assist in the common defense in case of foreign invasion, which, according to self evident data is very near happening." Theory of claimant is, that the sale was a public sale, but there is no evidence of the fact; and the presumption, if any, from the recitals of the grant, is clearly the other way. Had the sale been a public one, then it would have been of no importance whether the purchasers were worthy or unworthy persons, provided they were the highest bidders and competent to take, and actually paid or secured the consideration. But the District court affirmed the decree of the comrepresentation is, that they had "rendered valu-missioners, and the United States appealed to able services to the government, and furnished this court. Questions discussed here are, subeminent aid for the better protection and se- stantially, the same as those presented in the 760*] curity "of the department, under the court below, but in the view taken of the case, guarantee of a just indemnification when the it will only be necessary to examine the third general Treasury should be unembarrassed," proposition, as we are all of the opinion that and these representations are evidently put the sale was made and the grant issued without forth as considerations which influenced the any pretense of authority. granting power in acceding to the application of the grantees, and in making the grant for their own benefit and that of their families.

United States resisted the confirmation of the claim upon several grounds. First, they contended that the grant was antedated and fraudulent. Second, that the evidence introduced to establish its authenticity was incompetent and insufficient to justify a finding in favor of the claimants. Third, that the Governor had no authority under Mexican law to warrant him in making the grant, and consequently that the same was void.

IV. Ample authority was conferred upon the Governor of California to grant vacant lands belonging to the Supreme Government. Such II. All that was necessary having been con- authority was derived from the Colonization sidered and examined, the recital, in effect, then Law of the 18th of August, 1824, and the Regu is that the governor, in the exercise of the lations of the 21st of November, 1828, as has powers with which he was invested, decided to been affirmed by repeated decisions of this execute a real sale and perpetual alienation of court. But all of those decisions proceed upon the mission in question to the original grantees, the ground that the authority conferred is lim"With all the appurtenances recognized as there-ited and restricted to the granting of unoccuunto belonging, consisting of lands, improve- pied public land. Grants under those laws ments, real estate, or self moving property." were required to be made, subject to the apPrincipal conditions were: 1. That the grantees proval of the Departmental Assembly and, conshould pay to the creditors of the Mission the sequently, unless such approval was obtained, amounts presented against it, and properly the title was not regarded as perfect and comproved within the period of two years. And plete. Public establishments of the department

could not be granted under those laws, nor even of August, 1834, adopted certain provisional
lands which were in the lawful possession and rules for secularizing the missions and con-
occupancy of persons claiming provisional title verting them into pueblos; but those rules were
under the government. Repeated decisions of made subject to the approval of the Supreme
762*] this court have authorized these con- Government. Additional regulations were also
clusions, and in U. S. v. Vallejo [ante, 143], 1 promulgated by the governor, on the 3d of No-
Black, 541, it was expressly held that the Span- vember, in the same year, upon the same sub-
ish system of disposing of public lands differed ject; but on the 7th day of November of the
so widely from that provided for by the Mexican following year, the Supreme Government issued
Law of the 18th of August, 1824, and the Regu- a decree suspending the Secularization Act un-
lations of the 21st of November, 1828, that the til the curates should take possession of their
former system must be regarded as repealed, on parishes, as had been provided by the 2d section
account of the inconsistency and repugnancy of of the Act. Bishop of California, on the 7th
the latter system. Effect of that ruling is to day of November, 1840, addressed a petition to
regard all prior regulations upon the subject as the Supreme Government, containing eight
inoperative, but the court went farther, and special requests which, in effect, contemplated
held that those laws were the only laws of the the suspension or repeal of the Act of Seculari-
Mexican Congress passed on the subject of zation. Corresponding decree of the President
granting the public lands which were in force is dated on the same day, and directs that a
in that department, with the exception of those general order be issued to the governor for the
relating to the missions and towns, which will restoration, by means of the subaltern authori-
presently be considered. All pretense of au- ties, without delay or impediment, of the pos
thority, therefore, may be considered at an sessions and property used by them under their
end, unless it can be found in the laws relating administration for the conversion of the heathen.
to the missions, or can be regarded as conferred Proof is entirely wanting to show that that
by the Departmental Assembly, as is assumed order was ever annulled. On the contrary, the
in the grant. Appointment of the governor of clear presumption is that it remained [764
a territory emanated from the Supreme Gov-in full force at the Treaty of Peace between the
ernment, and all his powers were derived from two countries.
the same source. Departmental Assembly con-
sisted of seven members, who were elected
from districts previously assigned by law.
Many duties were devolved upon the Governor,
and also upon the Departmental Assembly,
where each was required to act independently
of the other. But other duties were prescribed,
in the performance of which the Governor and
the Assembly were required to act in concur
rence. In the latter class the governor could
not act separately, though in some instances it
was competent for the Assembly to act in his
absence. U. S. v. Osio, 23 How., 285, 16 L. ed.
457. Powers of the governor, as such, emanated
from the same source as that from which he
derived his commission, and there is no reason
whatever to conclude that his authority over
the public lands or public establishments of
the department could be enlarged or diminished
by the Departmental Assembly. 1 Arrillago,
Recop., pp. 202-210.

Supreme Government, on the 17th day of August, 1833, issued its decree secularizing the 763*] missions in California. *Intention of that decree was to make a radical change in regard to the temporalities of the missions, by taking their management and control from the priests, and vesting them in the civil authorities.

VI. Constitution of 1824 did not define the powers of Departmental Assemblies or Territorial Deputations, as they were always called, while that constitution remained in force. During the administration of Santa Anna, on the 12th day of June, 1843, the Mexican Government adopted a new organic act, known as the "Bases Organica." Title seven defines the powers of the Departmental Assemblies, and the provision, among other things, contains the following, to wit: "To decree what is useful and conformable respecting the acquisition, alienation and exchanges of the property that may belong to the community of the department. With regard to the alienation of lands, the existing laws shall be observed." Those bodies were vested, as will be seen, with the power of acquiring, alienating, and so changing the property belonging to the department; but it is not perceived that they could confer any power upon the governor even upon that subject, while in relation to the alienation of lands, that power was expressly restricted to what was conferred by the laws of colonization, which, as is now well known, was to approve or disapprove of a grant, when regularly made by the governor, under those laws.

VII. First decree of the Departmental Assembly, under Governor Pio Pico, upon the subV. Congress of Mexico, on the 3d day of ject of the missions, is dated on the 21st day of November, 1833, passed an Act authorizing the April, 1845, and recites that the government Executive to adopt all measures which should will demand exact information as to their debts, secure their colonization, and for that purpose and will suspend, until a convenient time, the gave authority to use the property donated to granting of the lands immediately contiguous pious uses, in order to facilitate the operations to the missions. Second decree bears date on of the commissions and the transportation of the 28th day of May following, and provides families. Mexican Government also published for calling together the Indians of certain misanother decree of secularization, on the 16th day sions therein named, by means of a proclamaof April, 1834, which provided that the mis- tion; and also, if they fail to reunite within sions of the Republic should be secularized; one month from the day of the publication of that they should be converted into curacies, the the proclamation, that they should be considlimits of which were to be designated by the ered as notified that the missions would be degovernors of the territories in which the mis-clared vacant, and be disposed of as might best sions were situated. Assembly on the 9th day suit the general good of the department. Decree

ANN

of the 28th of October, 1845, authorized the sale, 765*] to the highest bidder, of certain missions therein named, which, however, did not include the one in question. Provision was also made in the same decree for renting the other missions, under certain stringent regulations. Third decree was passed on the 13th of March. 1846, and purports to authorize the Departmental Government in carrying into effect the object specified in the second decree, so far as respects the missions of San Gabriel, San Luis Rey, San Diego, and any others in similar circumstances, to act in such a manner as may appear most conducive to prevent their total ruin. Reference is doubtless made in the grant to this last named decree, as the foundation of the authority for making the sale. Information, however, had reached the Supreme Government long before any such pretended authority was exercised, that the governor of the department was devising measures for the sale of these properties. Effective measures were immediately taken to prevent any such abuse of the powers committed to his charge. Those measures consisted in the order of the President suspending all proceedings respecting the alienation of the property till the determination of the Supreme Government, and was accompanied by directions given to the Departmental Government to make a report of all the particulars.

Evidence that these preventive measures were taken, consists of a despatch from the Minister of Industry and Public Instruction, addressed directly to the governor, in which those facts are very formally and fully stated.

VIII. Even suppose such a power had been conferred upon the governor by the Supreme Government, still it was clearly competent to withdraw the power and forbid its exercise; but the truth is, the governor never had any such power. Dispatch of the Minister of Industry and Public Instruction was not issued to recall a power previously conferred, but to prevent the attempt to exercise a power never possessed.

Reference is also made to the dispatch of the Minister of War, of the 10th of March, 1846, and also to the Proclamation of the President, of the 13th of March, in the same year, as conferring such an authority; but it is so obvious 766*] *that neither of the documents will bear any such construction that we do not think it necessary to enter into any argument upon the subject, and only advert to it that it may not appear to have been overlooked.

The decree of the district court is, therefore, reversed and the cause remanded, with directions to dismiss the petition.

THE UNITED STATES, Appt.,

บ.

WILLIAM CAREY JONES.

(See S. C., 1 Wall., 766-769.)

Mexican grant rejected.

APPEAL from the District Court of the
United States for the Southern District of
Jalifornia.

The decree of said District Court confirms to the appellee, Jones, his claim to the Mission of San Luis Rey, and to the two ranchos of Pala ind San Juan of an exterior boundary including about thirty leagues of land, with an exception of all valid grants within said boundtries made prior to the grant in this case, and to the orchards, vineyards, churches and missions belonging to the Missions, at the date of the grant. There is no specification, however, in the decree of the valid grants, accepted or intended to be accepted, so that as against the United States, the confirmation is for about thirty leagues of land.

The question in this case is founded on a sale and grant dated May 18, 1846, alleged to have been made to Don Antonio Cot and Don José Antonio Pico, by Pio Pico, Governor of California, for the sum of $2,000 in money and $437.50 in grain, and an agreement on their part to pay the debt of the Mission in produce in four years. The grant is in these words: "Pio Pico, Constitutional Governor of the Department of the Californias.

(Government seal)

Whereas, Don Antonio José Cot, and Don José Antonio Pico have presented themselves to this government, petitioning that it should give them a legitimate possession of the Mission of San Luis Rey and the rancho Pala with the land which pertained to them, in payment of $2,000 in money and $437.00 and four reals in grain with which they have assisted the government in its exigencies, they both obligating themselves to satisfy, in every description of produce, the debt of said Mission of San Luis Rey in the term of four years, and having in consideration the prejudices which the interested parties have had in the delay of the satisfaction of the said debt, and that the edifices, which are in a total abandonment, will not pay the other creditors, I have come to concede them to the Señors Don Antonio José Cot and Don José Antonio Pico, in virtue of the faculties with which I find myself invested, they remaining responsible to satisfy the debts of the said Mission of San Luis Rey in the time which should offer.

And in order that the present document should have such corresponding validity, let it be entered and taken account of in the respective book by the señor Secretary, for the security of the interested, being on common paper for lack of the proper seal. Given in the Government House in the City of Los Angeles, this 18th day May, 1846. PIO PICO.

JOSÉ MARIA MORENO, Secretary, ad interim. Account taken of this superior dispatch in the proper book. MORENO."

There is no evidence to show how the sale was made, whether at public or private sale. The grant is for "The Mission of San Luis Rey and the rancho of Pala, with the lands which pertain to them." The claim filed is for "the ex-Mission of San Luis Rey, including the tracts of San Antonio Pala and San Juan." The Pala and San Juan were two separate and distinct tracts of land. The decree of confirmation of the district court is according to the boundaries Decided Apr. 18, 1864. described in the inventory "excepting there

This case is governed by the same principles of U. S. v. Workman, 1 Wall. 745, ante, 705, and the court refers to the reasons there given for its conclusion in this case, that the governor of the department had no authority to make the grant. [No. 131.]

Argued Jan. 29, 1864.