The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-02-19

common law rule by which all title is forfeited for
ch non-ful6lment is abhorred by the civil law.
u prefers that meet compensation for the delin.
qa.rcy should be made by the delinquent to the
party injured thereby BY the civil law many con:
the performance Of which IL unnecessarily deman-
ded by rigorous gTantor, land of which the COM
mon law exacts the rigid performance 70 the etterl
are considered as being merely :" directory" and
the non-peTformance Of them will not work a for
FIXTURE, however explicit and perempt0ry the terms
Of such condrion may be. ItIe4uires nothing idle,
unconscioDaeie or unreasonable. With all the
syste m, put orth by the champions of the cemmon
law, from LORD Coke down, they have been COM
PEELED to borrow or steal from the civil law codes,
the rules by which relief IS granted in chancery,
against forfetures and penalties, by which the spe
chic performance of contracts is enforced, and by
which party defendant may demand in the de-
cison of the sut against himself, recospement"
from his adversary. In numerous other instances
has the civil law been engrafted on the common
law by the courts OF England, and OF the United
States, and us principles substituted by statute for
the old English rules. What wickedness would it
be for the United States to attempt the enforce
ment in California and New Mexico, of the techni-
cal rules OF the common law, as TO titles to real
estate acquired by the Inhabitants Of those coun-
tries, where totally dissimilar system has pre-
vailed, and under which their lands and other pro-
perry was posse ssed when the country was coded
to the United States, and under which they were
continued to be held till the laws were changed as
question the power of Congress SO to do. Concede
that Congress may have power to provide by law
for the ascertainment and settlement of the titles
10 lends in the ctded territories, founded on Span
lsh or Mexican grants, yet it by no means follows
that in passing such acts It can prescribe rules for
deciding upon such claims, to the prejudice of the
claimants, inconsistent with the laws which the
grants are founded, and under which the lands are
held. Who can doubt that such act would be a
gross violation of the plighted faith and honor of
The American people, gwen TO Mexico in the
clauses Of the treaty cited. No act of federal or
state legislation can annul or Impair Spanish or
Mexican grant, made in conformity to the Spanish
or Mexican law. No such act can prescribe retro
active rule as to the kind or character OF posses
sion (eiher p0sSesst0 pedis, or constructive possess
son) Of the lands conceded to him, necessary TO
legalize his title, nor what performance of condi
tons contained in grant, shall be deemed neces-
sSS.y TO snake the giant 81 Congress mo-,
retrsspe chvely change the Mexican laws, to the
detriment of the grantees or occupants II can
not rehtfuy alter the rules Of evidence as to the
establishment OF such grants under the Mexican
laws, so as TO create obstacles TO an honest claim
ant in the proof of his title. The same evidence
that would sustain his case under the Mexican
laws, anterior to the cession, must be received now
end must be given the same consideration, and
have like effect. Any act Of Congress doing that
by indirt cion which Congress cannot do directly,
would be IN contrayenon of the treaty, and Of
the laws Of nations, and, therefore, nullity.
The rights of the grantees or possessors of lands
depend entirely on The Mexican law, and not upon
the legislation of Congress. So rigid is the rule
that those rights are to be determined by the Mex
lean laws and usages and customs, and not by
rules prese nted N legislative acts by Congress,
the Legislature of the State of California, in dero-
CATION of the Mt Xican laws and ussges, that The
courts would re compelled to disregard such act
OF Congress. Congress may, in its iberaiy,or for
reasons of sound and wise policy, relax the opera
ton Of trDgent rules and lease claim ants from
thsir effect, but It possesses no power to impose
rev restraints. What the Me Xican law was, is
purely judicial question, and is not in any degree
a legislative question Congress cannot by its de.
ciarahry act, purportng to state whatthe Mexic "A
law was, In any degree modify that law or pre-.
scribe rules for judicial decision as TO its eff CT or
10 impair the title to lands acquire under IT, The
United States is the adverse party in interest to the
claimant, and il would therefore be unjust and I'M
becoming for Congress, representing such party, TO
decide its cause. IL has no right TO prescribe new
rules as to possession, or new principles as to the
Law of Pre- scriptop, prevailing in Mexico anterior
TO, and at the time of cessioD, or new doctrines 10
undisturbed occupation. II by the Mexican Law
individual in possession OF lands in California,
is gnizsd az The legal owner, upon his posses
sion for three years beng proved, Congress cannot
require proof of five years possession. ", by the
Mexican law, grant will be presumed in favor of
a claimant who shows undisturbed exclusive
POSSE sion for ten years, Congress cannot change
this rule and exact fifteen years. So, too, If the
Mexican laws and long continued usages (for such
usages become to be laws) invest an individual
with the proprie'orsbp OF mine upon his - de-
nouncing' II TO the proper public authorizes, and
claimant proves that anterior TO the cessio1, he
formed 10 the Mexican law, no act OF Congress
impairng his right thus acquired and perfected
before the United States obtained the coun-
try, would be Of the slightest force. II such Gus
toms and ususges OF Mexico, recognized the pos
sessory rights of the Pueblo or other Indians, be-
fore referred to, OF the missionaries among them,
10 The lands at and contiguous to the nss ons
else where Congress mot disregard those rights
WI bout the Preparation of wrong and injustice
We have extended these remarks beyond w hat
we expected, and are compelled 10 defer some
comments on the provisions OF the bill, not Ia &C.
corjance with the general principles above adj
vanced, to a future paper.