The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1861-02-21

7 y,
preme power of the nation, it operated Of itself
adjudcate the title of the claimant, leaving no di
erection to be exercised by the authorities of I'll
Department. Neither the Governor, nor the A
sembly, nor both combined, could withhold th
grant, after proper selection, without disObeyiu
the express command of the Supreme Governmen
Nothing, therefore, remained to be done but
issue the title papers, and that was the prope
DUTY OF the Governor, as the executive organ
| the department"
struction. 1t seems to me express decision tha
| an order of the Supreme Government, directing
the Governor of Department to make grant
operates to adjudcate the title to the land speci
ned. 1t could not be meant, however, that the or
der ltselfwas an absolute grant, for it is eviden
that the formal grant was to be made by the Gov
ernor; and, besides, it did not refer to any par
hcular island, but to such island as Castiero nigh
select; and it was only after the selection mad
and found to be proper one that the title attached
to any particular piece of land
1T such was the effect of the order of Pesada
am unable to perceive why the CastilaLanza
despatch Hust not be considered to have had like
| operation. The direction in that despatch to the
Governer, to put Castillero in possession in con
formity with the laws and dispositions on coloniza
| ton, contded no more direction to him than the
duty of seeing that the island selected was proper
one, confded to the Governor in the case before
the Supreme Court and if the issuing of the title
papers in that case was ga merely ministerial act,
to be done in respect to lands the title of which
claimant,
same view must be taken of the title papers
| which, constituting the Lanzas despatch least fa
vorably to the claimants, Governor Pico was or
dered to issue.
1t is cOntended that the President of Nexico had
no authority to make the order for grant contai
| ed in the Lanzas despatch. But it is apparent
| both from the action of the Supreme Government
IN this case, as well in that of the island on the
coast, that it exercised the power The presump
ton, therefore, arises that it had the authority il
| exercised "Ihe public acts of public officers
purporting to be exercised in an Official CAPACITY
and by public authority, not to be presumed ia
De usurped, put legitimate authority, previous
ly given, or subsequently ratified, which is eouiva,
| lent" United States vs. Arredondn, Peters,
72S.
The Colonization Law of 1924 while it erioined
upon the States of the Confederation the duty OF
| making laws or regulations for coonizing within
| their respective limits, committed the whole sub
Ject OF colonization in the Territories to the Su-
| preme Executive.
The 10th article of the law provides that "'the
| Executive shall proceed in conformity with the
principles established to the colonization Of the
Territories" In pursuance of this authority, the
! Supreme Executive, in 1928, framed the regula-
tions which prescribed the mode in which the col
! onZatIon of the Territories should be effected.
1t was from the dispositions thus made BY the
| Supreme Executive that the Governor and Junta,
! in the Territory of California, derived all their
power with respect to the granting of land.
Had the President seen fit to cOnfde the aulhori-
| ty to grant, either to the Governor alone, to the
| Projects of the Partidas, to the local Commits
sioners, he might have done so, or he might have
retained it exclusively to himself.
The regulations in fact provided that concessions
made by the Governor should not be definitely valid
| unless approved by the Departmental Assembly;
| and IN case its approval was not obtained, the
| Governor was to report to the Supreme Govern
ment for its decision. Grants made to einpresariog
| were, by the seventh regulation, not to be held as
definitely valid until the approval of the Supreme
| Government obtained. 1t thus appears not
only that the authority of the Governors with re-
spect to colonization, was not Immediately conferred
by any law of Congress, but owed its existence to
discretionary regulations Of the Supreme Execu.
tive; but that by those very regulations the Execu-
tive reserved to itself an important part of the
granting power. After the adoption of the central
system, and the division of the whole Republic into
Departments, the right to dispose of all the lands
belonging to the nation seems to have been confded
to the Supreme Executive. =
As, then, the Lanzas despatch "operated to ad
Judlcae the tlte' to the claimant, he must be held
to have acquired an inchoate title, which, iffound-
ed on such equitable considerations as would have
bound the former government to complete it by is.
suing the formal title papers, this Government is
equally bound to respect
Had the claimant been an ordinary coorist and
relying on the action of the Supreme Government
on his petition; settled upon and occupied the land,
building house upon it aud cultivating il; and,
had the United States found him in the enjoyment
OF an undisputed possession, it cannot, | think be
doubted that the possession would have been un.
disturbed and his claim confirmed, even though he
had neglected to obtain from the Governor the for
nal grant.
But no such possession was taken in this case
nor was the concession received in California or
even known to have been made, until after the
subversiCn of Mexican authority. The question,
therefore, arises, were there any antecedent equit-
able considerations on which the concession was
founded, such as would have bound the conscience
OF the Mexican government to perfect it ? That
an antecedent consideration, such as the patriotic
services OF the grantee, Is one which a court OF
equity cannot disregard has been expressly deci.
ded by the Supreme Court. In the case of Fremont
u.s. The United States, the Court says: "The grant
was not made merely to carry out the policy of
the colonization laws, but in consideration of the
previous public and patriotic services of the
grantee; aud, although this cannot be regarded as
money consideration, making the transaction Il
purchase from the government, yet it is the
knowledgement of a just and equitable claim, and
when the grant was made on that consideration,
the title in court of equity ought to be as firm
| and valid as if it had been purchased with money
on the same conditions."-l7 Ho1odrd 55S.
II, then, antecedent considerations of this nature
are to be looked to in determining whether the
former Government was under any equitable obli-
CATION to perfect the title Of the claimant it is per-
haps not easy to imagine case where the merits
OF the petitioner, and the considerations rendered
by him for small grant of land in a remote de-
partment, could be greater.
The immense value of the discovery he had made
to the great mining interest of Mexico need not be
dwelt upon. Our own experience in California en-
abes US at once to appreciate how Indispensable is
an ample and cheap supply of quicksilver to the
/ development OF mines OF the precious metals. But
! to Mexico the discovery was as Justly observed by
one OF the counsel for the claimants 'the unsealing
OF hidden fountain of wealth. as precious to her
the rains and dews and living streams are to the
nations that live by tillage.''
For years it had been the policy of Mexico to
| stimulate exploration for, and to encourage the
! working Of quicksilver mines. By the laws Ct
February 20, 1922, and October 7, 1923, which i'm
! posed duties on gold and silver quicksilver was
! expressly exempted from contribution. In 1912,
! the Juntd de FomeHto established, and empow-
| cred "to fix the mode in which the working OF
| quicksilver mines was to be supplied, rewarded,
! stimulated, and protected"
BY the decree of May "a, I843, rewards of S25,
! GOO, and of $5 per qunta (l00l were promised
! to successful miners and by the DEGREES of July
and September 25, of the same year, the Junta was
! empowered to work, to supply and to protect
! quicksilver mines, and to cause researches for them
! to be made throughout the Republic.
! When, therefore, Castero announced the dis
covery OF mine SURPRISING in richness that Of A l.
MAIDEN in Spain, upon which Mexico had so long
been dependent, and desired grant of two leagues
in depar artment where land commonly disrib-
uted gratuitous in tracts five times large, he ad
equitable claims upon the Government far surpass-
ing 'the public and patriotic services of AvaradO
which the Supreme Court declared to have been an
equitable consideration strong Gas if the grant
had been purchased with money" Compared with
the service rendered, and about to be rendered to
the Mexican nation by CastilerO, the consideration
on which the ordinary colonization grants were
founded ins gnihcant; for that consideration
merely consisted in building house, cutivating a
few acres of an immense tract, and suffering wild
cattle to roam at will over the remainder.
The fact that he working the mine showed
that Castillero had already effected a settlement
upon the land, and its further development in
sured accession to the population of the country
far greater than could have been obtained by any
other disposition of the public land.
The purpose for which he bought the land ap-
priced the government that it was of a kind usu.
ally fit for cultivation as it required to fur
nish wood for his burDings. In thus assisting his
enterprise the nation had great an interest as
Castilero himself, for it was the attainment of an
object to which their attention. their efforts ard no
inConsiderabe portion of their revenues had long
| been devoted.
| 1t has appeared to me that all these circumstan-
ces constitute equitable consideration of the in
choate title or concession obtained by Castilero;
and that they insufficient to create an equta-
BILE obligation the former Government, and
therefore this to complete and make good the in
ceptive rights he had acquired
The following is the conclusion of Judge HoGf.
mans opinion:
''0n the whole my opinion is that the claimants
entitled to seven eenencas to be measured in the
manner of the FORM and Of the dimensions presented in
| the OrdindHz1S de MHeria Of 1888.
"And also that they entitled to two square leagues Of
land to be located the land of their mining possession
but in such way not to include any land granted in
private ownership, by competent authority, previo
May %, 1916"
DECREE THE CASE.
Judges McAlister and Hoffman have signed and
entered the following decree in this case
This cause came on to be heard on appeal from
the final decision of the Board of Commissioners TO
| and int otto