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 SUPREME COURT OF THE UNITED STATES. 
 
 «''■ ■ ■• ■ ' \ . 
 
 . ^ ^_ . ^,.^_ 
 
 December •TerMj^1854. * . 
 
 JOHN CHARLESjFilEM0iN.3:^'«APPEtiLANT^^r*, 
 THE UNttED: STATES, APPELLEE. 
 
 FROM DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN 
 DISTRICT OF CALIFORNIA. , 
 
 Asstgnmctit of Errors. ' 
 
 Gideon, print. 
 
 / 
 
t s- ^ ^-^ ^ 
 
 SUPREME COURT OF THE UNIThD STATES. 
 
 No. 72. 
 December Term, 1854. 
 
 JOHN CHARLES FREMONT, APPELLANT, 
 
 vs. 
 
 THE UNITED STATES, APPELLEE. 
 
 FROM DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN 
 DISTRICT OF CALIFORNIA. 
 
 Assignmerit of Errors. 
 
 The appellant saith that in the record of the proceedings and decree 
 ■of the district court various errors are manifest, and he assigns the fol- 
 lowing, to wit: 
 
 I. The district court erred in proceeding to hear the case, and reverse 
 the decision of the commissioners, without any pleadings, without any 
 petition setting forth the grounds upon which the claim of the said John 
 Charles Fremont was supposed to be invalid, without serving on him 
 any copy of a petition, without giving him any thing to answer or oppor- 
 • tunity to answer, and without any allegation that the said decision of the 
 commissioners was erroneousj and in totally disregarding the provisions 
 of the 9th and lOth sections of the act approved 3d March, 1851, to as- 
 certain and settle the private land claims in the State of California. (9 
 Stat, at Large, pp. 632, 633,- chap. 41.) 
 
 IL The district court erred in not dismissing the appeal, for some 
 one or more-of the points and objections stated by the attorneys of Fre- 
 mont in their motions made and filed 30th September, and 26th Octo- 
 ber, 1853. (pp. 61, 62, 63, and 64.) 
 
 in. The district court erred in hearing the case without pleadings, 
 and without any allegation of error in the decision of the commission- 
 ers, and without objection stated to the validity of the claim of said 
 Fremont, which the commissioners had decided to be valid. 
 
 IV. The district court erred in reversing the decision of the commis- 
 sioners, and decreeing the claim to be kivalid; upon the documents and 
 proofs the claim of said Fremont 'f^jgbod and valid. 
 
Wherefore it is prayed that the decree of the district court be reversed, 
 and the decree of the commissioners stand unaltered and affirmed. 
 
 Statement of the case. 
 
 The claim of the appellant, Fremont, is evidenced by the following 
 authentic public documents, and proof witnesses adduce in support of 
 his petition, presented to board of commissioners on 2lst January, 1852. 
 (Printed record, p. 3.) 
 
 ^' Recoi'd of the proceedings by citizen Juan Bautista Alvarado, 
 colonel of the auxiliary militia , soliciting- the tract of land called 
 the Mariposas.^^ {Prvited record, p. 39.) 
 
 ''Anno Domini 1844.— No. 352. 
 
 ''To his Excellency the Governor: 
 
 "I, Juan B. Alvarado, colonel of the auxiliary militia of this de- 
 partment, to your excellency with due respect do represent, that be- 
 ing actually the owner (by purchase which I made) of a very small 
 tract of land, which is not sufficient to support the cattle with which it 
 is stocked, witliout injury to the estates likewise there established, and 
 being desirous of increasing it, at the same time to contribute to the 
 agriculture and the industry of the country, I solicit your excellency, 
 according to the colonization laws, to be pleased to grant me ten sitios 
 de ganado mayor (ten square leagues of land) north of the river San 
 Joaquin, within the limits of the Snow mountain, (Sierra Nevada,) in 
 the same direction, the river Chanchillas on the east, that of Merced 
 on the west, and the before-mentioned of San Joaquin, with the name 
 of the 'Mariposas,' offering to present to your excellency the proper 
 plan and draft thereof, so soon as the same shall be made with exact- 
 ness, not being at this time, for the difficulty of being a wilderness 
 country on the confines of the wild Indians, and because I desire that 
 my claim for this cause may not be delayed. 
 
 "Therefore, 1 hope, from the good intention of your excellency in 
 favor of the improvement of the country, the most favorable result, if 
 it be in justice by which I will receive favor. 
 
 "Rancho del Aligul,23d February, 1844. 
 
 "(Signed) JUAN B. ALVARADO." 
 
 '' Monterey, 27/A Fe6rMa7'y, 1844. 
 
 '•' Let the Secretary of State report, and he may require such other 
 reports as he may deem expedient, should he need them. 
 
 "(Signed) MICHELTORENA." 
 
 " As directed by his excellency the Governor, let the preceding peti- 
 tion be referred to 1st alcalde of San Jose, that he may report thereon. 
 "Monterey, 2Hth February, 1844. 
 
 "(Signed) MANUEL .IIMENO." (p. 39.) 
 
" To ihe Secretary OF State: 
 
 ''The land solicited in the petition of Don Juan B. Alvarado is 
 entirely vacant; it does not belong to any individual, town, or to any 
 corporation, and I believe that for these reasons, as well as for that the 
 petitioner being meritorious for his patriotic services and commendable 
 circumstances, there is no impediment for granting him the land in 
 fee. This is all I have to report to your honor in answer to your pre- 
 ceding superior order, which opinion I submit to the decision of your 
 honor, wliich will be the most proper one, 
 
 " Town of San Jose Guadalupe, Feb'y 29th, 1844. 
 
 " (Signed) ANTONIO M. PICO." (pp. 39, 40.) 
 
 "To his Excellency the Governor: 
 
 '' According to the report of the magistrate of San Jose, and the 
 information I have acquired from persons who know the land, it is 
 ascertained that the same may be granted to the petitioner, who may be 
 favorably considered for the services he has rendered to the department. 
 The superior judgment of his excellency will decide the expediency. 
 
 '' Monterey, 29th February, 1844. 
 
 ''(Signed) MAN'L JIMENO." (p. 40.) 
 
 " Monterey, 2Wi Februart/, 1844. 
 
 " Let the title issue, expressing that he (the petitioner) is meritorious 
 for his patriotic services, and consequently worthv of preference. 
 
 "(Signed) MICHELTORENA." (p. 40.) 
 
 " Monterey, 29th February, 1844. 
 "Having considered the petition which is the beginning of this re- 
 cord of proceeding, (expediente,) the preceding reports, and the patri- 
 otic services of the petitioner, with every thing worthy of consideration 
 in the premises, in conformity with the laws and regulations upon the 
 subject, I declare Don Juan Bautista Alvarado the owner, in fee, of 
 the tract of land known by the name of the ' Mariposas,' within the 
 boundaries of the Snow mountain, (Sierra Nevada,) the rivers called 
 the Chanchillas, the Merced and the San Joaquin. Let the proper 
 patent be issued, let it be registered in the respective book, and let this 
 record of proceedings be transmitted to the inost excellent the depart- 
 mental assembly, for its approval. 
 
 "(Signed) MANUEL MICHELTORENA." (p. 40.) 
 
 " Manuel Micheltorena, brigadier general of the Mexican army, 
 
 adjutant general of the staff of the same, governor and commander 
 
 general and inspector of the department of California: 
 
 "Whereas Don Juan B. Alvarado, colonel of the auxiliary militia 
 
 of this department, is worthy, for his patriotic services, to be preferred 
 
 in his pretension for his personal benefit, and for that of his family, for 
 
 the tract of land known by the name of the 'Mariposas,' to the extent 
 
 of ten square leagues ('sitios de ganado mayor') within the limits of 
 
 the Snow mountain, (Sierra Nevada,) and the rivers known by the 
 
name of the Chancliillas, of the Merced, and San Joaquin; the ne- 
 cessary requirements according to the laws and regulations having been 
 previously comph'ed with; by virtue of the authority in me vested, in 
 the name of the Mexican nation, I have granted to him tiie aforesaid 
 tract of land, declaring the same, by these presents, his property in fee, 
 subject to the approbation of the most excellent the Departmental As- 
 sembly, and to the following conditions: 
 
 "1st. He shall not sell, alienate, nor mortgage the same, nor subject 
 it to taxes, entail, or any other incumbrance, 
 
 ''2d. He may enclose it without obstructing the crossings, the roads, or 
 the right of way. He shall enjoy the same freely and without hindrance, 
 destining it to such use or cultivation as it may most suit him; but he 
 shall build a house within one year, and it shall be inhabited. 
 
 "3d. He shall solicit from the proper magistrate judicial possession 
 of the same by virtue of this patent, by which the boundaries shall be 
 marked out, on the limits of which he (the grantee) shall place proper 
 landmarks. 
 
 "4th. The tract of land granted is ten square leagues, (ten sitios de 
 ganado mayor,) as aforementioned. The magistrate who may give 
 the possession shall cause the same to be surveyed according to the 
 ordinance, the surplus remaining to the nation for the proper purposes. 
 
 "5th. Should he violate these conditions, he will lose his right to the 
 land, and it will be subject to be denounced (petitioned for) by another. 
 
 "Therefore I command that these presents, being held firm and 
 binding, and that the same shall be registered in the proper book, and 
 delivered to the party interested for his security and other purposes. 
 
 "Given in Monterey, this 29th da}^ of the month of February, in the 
 year 1844. 
 
 "(Signed) MAN'L MICHELTORENA. 
 
 "(Countersigned) MANUEL JIMENO, (pp. 40,41.) 
 
 ^^Secretajy. 
 
 "This patent is registered in the proper book, on the reverse of folio 6. 
 "(Signed) JIMENO." (p. 41.) 
 
 These Mexican documents, the petition, proceedings thereon, grant, 
 and final patent, are placed above suspicion by the inquiries addressed 
 by the Board of Commissioners to the surveyor general of the United 
 States for California, Mr. King, (p. 34,) and his answer thereto, 
 (p. 35,) that there is among the archives in his possession the expe- 
 diente showing the grant of Governor Micheltorena to Juan B. Al- 
 varado. "Said document does not show the approval of the depart- 
 mental assembly. The papers in that case appear to be fair and gen- 
 uine; a map, purporting to be of the tract of land claimed, was filed 
 in the office of the surveyor general of the United States for the State of 
 California, by Col. J. C. Fremont, on 20th November, 1851, and filed 
 with said expediente." Copies of the official Mexican documents, in 
 possession of the said surveyor general, are certified by the surveyor 
 general, (p. 42.) 
 
Testimony by witnesses. 
 
 To the competency of the witness Alvaraclo there was no objectioQ 
 made. Mr. Fremont's release to liini is seen at page 42. 
 
 The various offices wliich Alvaraclo had filled are stated, (p. 43,) 
 among" which were, senior member and ex officio president of the ter- 
 ritorial deputation, political chief of the territory, and governor of the 
 department of California from 1838 to 1843. He proves the signa- 
 tures of the Governor Micheltorena, of Secretary Jimeno, of the alcalde 
 Pico. (p. 44; see also Pico, p. 54.) 
 
 These facts are proved, viz: That at the date of the grant and until 
 1849, it was impracticable to make a survey of this land, or live on it, 
 without a military force to protect against tiie hostile Indians. (Alva- 
 rado, pp. 46, 47, 95, 96; Pico, p. 53; P. B. Reading, p. 66; i. J. 
 Warner, 67; Vallejo, p. 70; Bussell, pp. 75, 76.) 
 
 By the laws, usages, and customs of California, it was competent 
 for the governor to make a grant without a plan, ('^c^esiwo,") sketch, 
 or map, where it was impracticable from hostility of the Indians. 
 (Alvarado, p. 45; Pico, p. 53.) 
 
 No actual admeasurements, previous to the grants, were ever madej 
 there were no surveyors in the country. The figurative sketches or 
 maps (desino) representing the land petitioned for were made without 
 any actual admeasurement. (Pico, p. 54.) 
 
 According to the usages of California, the non-compliance with the 
 condition of building and habitation within the time expressed in grants, 
 by reason of Indian hostilities, was considered as sufficiently excused 
 and justified, even against ''denouncers" or petitioners for the same 
 lands. (Warner, p. 67; Vallejo, p. 70; Alvarado, p. 96.) 
 
 As to Indian hostilities, and the troubled, revolutionary condition of 
 the country, and the impossibility of building and inhabiting this tract 
 of land by reason of the Indian hostilities, see the depositions of Pear- 
 son B. Reading, pp. 65, 66; J. C. Warner, p. 67; M. G. Vallejo, p. 
 70; J. P. Leese, p. 72; W. Bussell, p. 75, 76; Alvarado, p. 96. 
 
 These depositions prove a very tumultuous, revolutionary, unsettled 
 state of affairs in California, commencing in 1844, soon after the date 
 of this grant to Alvarado, and continuing until the troops of the United 
 Stales conquered the country, and displaced the Mexican authorities; 
 in which revolutionary conflicts Governor Micheltorena employed the 
 Indians against the revolutionists, was defeated, fled the country, and 
 was succeeded by Pio M. Pico as governor. 
 
 The successful invasion of Upper California by the American forces 
 under the command of Col. Fremont in 1846, and the consequent 
 overthrow of the Mexican authority in Upper California by the estab- 
 lishment of a military government by the United States, by the procla- 
 mations of 1st March, 1847, of Commodore Shubrick and General 
 Kearney, in pursuance of the instructions of the President of the United 
 States, are attested by public documents. (See Senate documents, 1st 
 
session 31st Congress, 1849-'50, vol. ix, document 18, p. 277, 278; 
 same in Executive documents of House Reps. , same session, l849-'50, 
 vol. V, doc. 17, p. .) 
 
 By Conmiodore Stockton's letter of 16th January, 1847, (same Sen- 
 ate document, No. 18, p. 268,) it appears that at the date of that letter 
 California had been conquered by the forces of the United States, and 
 a civil government put into successful operation there, to the total ex- 
 clusion of the authority of the Mexican government. Tiiis occupation 
 by the military forces of the United States, we all know, continued 
 until the cession to (he United States by the treaty of Guadalupe 
 Hidalgo, (of 2d February, 1848.) 
 
 After the troops of the United States had conquered the country, 
 the alcaldes were prohibited from giving juridical possession to grantees 
 of land. (See Senate documents before referred to, of 1849-'50, vol. 
 IX, doc. IS, p. 310; and also pp. 169, 170, letters of 14th June, 1847, 
 and 18th August, 1848.) 
 
 It is proved (by Eddy, p. 72,) and admitted (p. 8,) (hat between the 
 summilsof the Sierra Nevada, (Snowy mountains,) the rivers Joaquin, 
 Merced, and Chanchillas, there are more than 100 square leagues of 
 land. But it is likewise proved that, by the usages of California, where 
 grants are for a definite quantity of land, and a larger quantity is com- 
 prehended within the ultimate limits named in the grants, in such cases 
 the grantees may select their respective quantities within the ulterior 
 limits^ the alcaldes measure the quantity granted, and give juridical 
 possession according to sucli choice,- the government had made no rule 
 to the contrary, (the import of the grant itself in this case is so.) Alva- 
 rado, pp. 46, 47; Pico, pp. 54,55.) The country called Mariposas con- 
 tains about thirty square leagues. (Vallejo, pp. 69, 70.) The survey- 
 or's report, (pp. 79, 80, Si,) and his field notes, (pp. 81 to 90,) show 
 that the quantity of ten le.igues surveyed for this grant, including the 
 valley watered by (he Mariposas river, is obtained by including lands 
 on the spurs of the ridges of the Sierra Nevada; even then including 
 lands which, in many parts, are barren and unfit for cultivation; and 
 that the construction of the grant, as including upwards of one hundred 
 leagues, is overstrained and unreasonable, not to be accomplished but 
 by running the survey to the very summits of the mountains. 
 
 In the spring of the year 1847, Colonel Fremont attempted to make 
 a settlement on the land, but Willard Bussell, whom Colonel Fiemont 
 had hired and furnished with provisions and tools to make a settlement, 
 was prevented by the hostility of the Indians; and by the same cause 
 all further attempts of Bussell to make a settlement on the land were 
 prevented. (Bussell, p. 75.) 
 
 In 1847, Colonel Fremont was put under arrest on charges by Gen- 
 eral Kearney, and thereupon compelled from California to the city of 
 Washington to attend his trial, which commenced in December, 1847, 
 and ended in February, 1848. Colonel Fremont was detained in 
 Washington until August, 1848, and then started for California by the 
 overland route; half the persons composing Fremont's party were fro- 
 
8 
 
 zen to dealh in the niounlaiiisj the survivors, witli Colonel Fremont, 
 arrived in CaUfornia in July, 1849. (Dep'n of VV. C. Jones, esq., p. 
 57.) 
 
 Alvarado appHed to Governor Micheltorena (in the year 1844) for 
 a military force to enable him to take possession of the land granted. 
 The governor, not having a sufficient disposable force, proposed to strike 
 out all the conditions of the grant, which the grantee declined. The 
 governor then promised to procure a force of Californians; all the Mexi- 
 can troops being infantry. Soon after this a force was sent up, under 
 the command of General Castro, and established themselves on the 
 bank of the Joaquin; they were compelled to return, by the loss of 
 horses and Indian hostilities; shortly after there was a revolution, and 
 Micheltorena's affairs became embarrassed, and he sent no more 
 troops there. In that year Micheltorena and the Mexican troops were 
 expelled from California by the Californians. (Reading, p. 65; War- 
 ner, p. 67; Leese, p. 72.) 
 
 In 1849, a sketch or plan of the ten square leagues was made, and 
 filed in the surveyor's office. In that year Col. Fremont seated and 
 improved, made valuable improvements in houses, &c., and placed 
 tenants on other parts of the land. (Pico, p. 54; Wright, p. 56; W. C. 
 Jones, esq., p. 58.) 
 
 This sketch or selection of the ten leagues within the general out- 
 lines of the grant is reasonable, adapted to the facts and the natural 
 surface of the country alluded to in the grant, as appears by the actual 
 survey and report of the deputy surveyor. Von Schmidt, (p. 81, and his 
 field notes, pp. 81 to 90.) 
 
 No grant has ever been held invalid for want of the approval of the 
 departmental assembly. (Alvarado, p. 45.) 
 
 After this grant was made the departmental assembly met but once, 
 and held a short session.- (Alvarado, p. 47; Pico, pp. 53, 54.) 
 
 The first condition in grants had no efl^ect in law. "The grantee had 
 a right to sell without the sanction of the government, notwithstanding 
 such condition. There is no instance in which a sale has been held 
 invalid on account of such condition. I have known sales sanctioned 
 notwithstanding such condition." (Pico, pp. 54,55; Alvarado, p. 46.) 
 
 The deposition of Antonio M. Pico, (pp. 53, 55,) a native of Cali- 
 fornia, who had always lived there, was forty-two years of age when 
 his deposition was taken, W'ho was first alcalde of San Jose in the years 
 1844, 1845, 1846, and who succeeded in office Governor Michelto- 
 rena, (see dep'n of Leese, p. 72,) said Pico being "acquainted with 
 the laws and customs of the Mexican government in granting lands in 
 California," proves these facts : 
 
 "Lands were granted by the Mexican government, as well for 
 the purposes of colonization, as also by way of reward for public ser- 
 vices; # * * iQ case of public services rendered, the applicant had 
 preference; 
 
 It was competent to grant lands without a diseno or plan being ex- 
 hibited with the petition; 
 
At the time the land was granted to Alvarado it was impracticable 
 to take a sketch, owing to the hostile Indians; 
 
 The land continued in that condition until 1849; 
 
 Where a grant was made of a certain quantity within specified 
 limits, and those limits contained a larger quantity, the grantee had the 
 right to select his quantity within those limits and to require possession 
 accordingly; 
 
 The usage was to present the figurative sketch (or diseno) without 
 any actual measurement, there being no surveyors in the country; 
 
 '^ I never knew an instance in which actual measurement of the land 
 asked for was made before the issuance of the title in full property;" 
 
 The condition in grants against selling had no effect in law; ^^ I 
 have known sales by grantees sanctioned, notwithstanding such condi- 
 tion;" the grantee had a right to sell without the sanction of the govern- 
 ment. There is no instance in which a sale has been held invalid on 
 account of such condition; 
 
 Grants were made for public services, civil and military; 
 
 "The right of the grantee to select, within the limits of his grant, 
 grew out of the custom of the country." 
 
 The witnesses, Alvarado, Vallejo, and Pico, held high offices under 
 the Mexican government, natives of California, had always lived there, 
 and were well acquainted with the laws, usages, and customs of Cali- 
 fornia. 
 
 Eddy's map of California and his deposition (p. 91) were given in 
 evidence. The map represents the Snowy mountain and the streams, 
 and the rancho Mariposas as surveyed, lying in the valley of Mariposas, 
 and within the northern district of Caliform'a, that is to say, north of 
 the thirty-seventh parallel of north latitude. His deposition proves 
 that his map is made from his own astronomical observation, and from 
 authentic documents furnislied by the United States surveyor general 
 of California, and deputy surveyor, (pp. 91, 92.) 
 
 Not proved. 
 
 There is no proof that the departmental assembly had disapproved 
 this grant; 
 
 No proof that the governor had ever reported this grant to that as- 
 sembly. 
 
 There is no proof that this grant wtis ever denounced by any indi- 
 vidual, or assailed by any officer of any government at any time before 
 the signing of the treat)'^ of Gaudalupe Hidalgo, on 2d January, 1848, 
 or before the ratifications exchanged on 30th May, 1848. 
 
 Decree of Commissioners. 
 
 On 27th December, 1852, the commissioners signed their final de- 
 cree, which was filed IGth January, 1853, (printed record, p. 34,) con- 
 firming the claim to the extent of ten square leagues, and no more, as 
 described in the grant and map filed in the office of the surveyor gene- 
 
10 
 
 ral, and of which map an official copy was used in evidence, and the 
 same land proved to have been possessed by the claimant, provided 
 there be thai quantity within the boundaries called for in said grant 
 and map; and if there be less "than ten square leagues," then we con- 
 firm to the claimant that lesser quantity. 
 
 Notice that the United States will prosecute appeal. 
 
 On the 20th September, 1853, the letter of the Attorney General of 
 the United States was filed in the clerk's office of the district court of 
 the United Slates for the northern district of California. (Page 60.) 
 
 ''Attorney General's office — Washington, D. C, 18 August, 1853. — 
 John C. Fremont vs. The United States. — You will please take notice 
 that the appeal in the above case, from the decision of the commission- 
 ers to ascertain and settle the private land claims in the State of Cali- 
 fornia, to the district court of the United States for the northern district 
 of California, will be prosecuted by the United States." 
 
 Between the filing of the final decree in the office of the secretary of 
 the commissioners, (10th January, 1853,) and the filing of the Attor- 
 ney General's letter in tlie clerk's office of the said district court, (20th 
 September, 1853,) eight months and nine days had intervened. There 
 is nothing in the record to show that this letter of the Attorney General 
 was filed with the clerk of the district court within six months after he 
 had received a transcript of the proceedings and decision, and of the 
 papers and evidence on which the decision of the commissioners was 
 founded. 
 
 Motions hy Fremont to dismiss appeal. 
 
 On 30th September, 1853, (printed record, pp. 61, 62, 63,) tlie at- 
 torneys for Fremont made a motion to dismiss this appeal: 1st. "That 
 appeal had not been brought or perfected according to law." "2d. 
 That the court had not jurisdiction of said appeal j" with ten specifica- 
 tions of causes and objections. 
 
 On 26th October, 1853, the attorneys for said Fremont, "protesting 
 that the said John C. Fremont is not brought properly before this 
 court," &c., moved "that the attempted appeal be dismissed," for the 
 seven reasons specified, (pp. 63, 64.) 
 
 Decree of district court. 
 
 On 7th December, 1853, the district court decreed that the decision 
 of the commissioners be reversed, and that the claim be held invalid 
 and rejectedj (p. 109 j) from which the claimant appealed, (p. 110.) 
 
 Points of argiwient. 
 
 By the act of 28th September, 1850, (9 Stat, at Large, p. 531, ch. 
 86,) the State of California was divided into two judicial districts, the 
 northern and the southern; divided by the thirty-seventh parallel of 
 north latitudej and a district court of the United States was established 
 
II 
 
 ill each, wilh two district jiulges, one for each district. The land 
 claimed and called Mariposas is situate in the northern district, as 
 proved by the map of California by Eddy, given in evideiice, and by 
 Eddy's deposition, (p. 91.) 
 
 Any objection to the jurisdiction of tlie district court over this case 
 is not intenfled to have allusion to the locality of the land, or the ju- 
 risdiction of the court, as defined and limited by territory. 
 
 The undersigned counsel for the appellant will insist upon the fol- 
 lowing points: 
 
 I. — The district court erred in holding cognizance in this case and 
 hearing it, and reversing the decision of the commissioners, without 
 any petition and without any pleadings, contrary to the statute in such 
 cases made and provided. 
 
 The 9th section of the act approved 3d March, 1S51, (9 Stat, at 
 Large, p. 631, ch. 41,) to ascertain and settle the private land claims 
 in the Slate of California, prescribes the mode and manner of proceed- 
 ing to obtain a review of the board of commissioners established by 
 that act. It is to be by " a petition to the district court of the district 
 wherein the land claimed is situated, praying the said court to review 
 the decision of the commissioners, and to decide on the validity of such 
 claims." 
 
 ''And such petition, if presented by (he claimant, shall set forth 
 fully the nature of the claim and tlie name of the original and present 
 claimants, and shall contain a deraignment of the claimant's title, to- 
 gether with a report of the board of commissioners, and of the docu- 
 mentary evidence, and testimony of the witnesses on which it was 
 founded; 
 
 '•And such petition, if presented by the district attorney in behalf 
 of the United States, shall be accompanied by a transcript of the re- 
 port of the board of commissioners and of the papers and evidence 
 on which it is founded, and shall fully and distinctly set forth the 
 grounds on which the said claim is alleged to be invalid; 
 
 "A copy of which petition, if the same shall be presented by a 
 claimant, shall be served on the district attorney of the United States, 
 and if presented in behalf of the United Slates shall be served on the 
 claimant or his attorney; 
 
 "And the party on whom such service shall be made shall be 
 bound to answer the same within a time to be prescribed by the judge 
 of the district court; 
 
 "And the answer of such claimant to such petition shall set forth 
 fully the nature of the claim and the names of the original and pre- 
 sent claimants, and shall contain a deraignment of the claimant's title; 
 
 "And the answer of the district attorney in behalf of the United 
 States shall fully and distinctly set forth the grounds on which the said 
 claim is alleged to be invalid; 
 
 " Copies of which answers shall be served on the adverse party thirty- 
 days before the meeting of the court, and thereupon, at the first term 
 
12 
 
 of the court thereafter, the said case shall stand for trial; unless^ for 
 cause shown, the same shall be continued by the court," 
 
 ^'Sec. 10. And be it further enacted, That the district court shall 
 proceed to render judgment upon the pleadings and evidence in the 
 case, and upon such further evidence as may be taken by order of the 
 court; and shall, on application of the party against whom judgment 
 is rendered, grant an appeal to the Supreme Court of the United 
 States," (fcc. 
 
 ^' Sec. 11. The commissioners herein provided for, and the district 
 and supreme courts, in deciding on the validity of anj'^ claim brought 
 before them under the provisions of this act, shall be governed by the 
 treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, 
 and customs of the government from which the claim is derived, the 
 principles of equity, and the decisions of the Supreme Court of the 
 United States so far as they are applicable. 
 
 "Sec. 12. That to entitle either party to a review of the proceed- 
 ings and decisions of the commissioners herein before provided, notice 
 of the intention of such party to file a petition to the district court shall 
 be entered on the journal or record of proceedings of the commissioners 
 within sixty days after their decision on the claim has been made and 
 notified to the parties, and such petition shall be filed in the district 
 court within six months after such decision has been rendered." (Vol. 
 IX, p. 633.) 
 
 By the act of 31st August, 1852, (Session acts by L. and B.y 
 p. 99, chap. 108,) making appropriations for the civil and diploma- 
 tic expenses of the government, &c., it is enacted, among other 
 things, # * # # 
 
 " Sec. 12. And in every case in which the board of commissioners 
 on private land claims in California shall render a final decision, it 
 shall be their duty to have two certified transcripts prepared of their 
 proceedings and decision, and of the papers and evidence on which the 
 same are founded; one of which transcripts shall be filed with the clerk 
 of the proper district court, and the other shall be transmitted to the 
 Attorney General of the United States; and the filing of such transcript 
 with the clerk aforesaid shall ipso facto operzite as an appeal for the 
 party against whom the decision shall be rendered; and if such decision 
 shall be against the private claimant, it shall be his duty to file a notice 
 with the clerk aforesaid, within six months thereafter, of his intention 
 to prosecute the appeal; and if the decision shall be against the United 
 Slates, it shall be the duty of the Attorney General, within six months 
 after receiving said transcript, to cause a notice to be filed with the clerk 
 aforesaid that the appeal will be prosecuted by the United States; and 
 on failure of either party to file such notice with the clerk aforesaid, the 
 appeal shall be regarded as dismissed." 
 
 The important regulations of the ninth and tenth sections of the afore- 
 mentioned act of 1851 have been wholly neglected in this case. There 
 has been no prayer for a review of the decision of the commissioners; 
 no statement of the grounds on which the claim is supposed to be in- 
 
13 
 
 valid; no service on the claimant or his attorney of the copy of a peti- 
 tion containing a full and distinct statement of the grounds on whicli 
 tlie said claim is alleged to be invalid; no answer, no pleadings. The 
 claimant has not had an opportimity to answer and repel the grounds 
 on which his claim is supposed to be invalid. The district court did 
 not "proceed to render judgment upon the pleadings and evidence," 
 as prescribed in the tenth section of the act of 1851, but proceeded 
 without any pleadings, without any issue, without any assignment of 
 errors in the decision of the commissioners, without even an allegation 
 that the decision was erroneous. 
 
 These illegal proceedings, this violation of the ninth and tenth sec- 
 lions of the act of 1851, were had and done against the consent of the 
 claimant, Fremont, against his motions to the contrary, against his 
 remonstrance, against his protest. 
 
 The second specification under the first head, the first specification 
 under the second head, in the motion to the court filed 30th September, 
 1853, (p. 61,) and the third specification in the protest and motion filed 
 on 2t3th October, 1853, (p. 63,) point to the want of a petition, neglect 
 of the service of a copy, and omission of the process prescribed by the 
 act of 1851. 
 
 This anomalism, this deviation from the established rule of proceed- 
 ing in courts of record, this hearing and decree without petition or plea 
 of any kind, this neglect of the regulations prescribed in the ninth and 
 tenth sections of the act of 1851, are supposed to be justified by the 
 twelfth section of the act of 1852, before quoted. 
 
 It is supposed that by implication, by inference, by intention not 
 expressed but tacitly inculcated, the said 12th section of the act of 
 1852 has repealed the 9tli and 10th sections of the act of 1851. 
 
 The 12th section of the act of 1852 has modified the 12ih section 
 of the act of 1851, but does not repeal the 9th and lOih sections of 
 the act of 1851. There is no inconsistency between the 12th section 
 of the act of 1852 and the 9th and lOth sections of the act of 1851. 
 They can well stand together in concord. 
 
 A subsequent statute does not repeal a former, without a repealing 
 clause or negative words, unless so clearly repugnant as to imply a 
 negative. (Beals vs. Hale, 4 Howard, p. 37.) 
 
 '^ It is not sufficient to establish a repeal of a statute by implication, 
 to show that a subsequent law covers some or even all of the cases for 
 which it provides, for it may be affiriuative, or cumulative, or auxiliary. 
 There must be a positive repugnancy between the provisions of the 
 new law and those of the old; and even then the old law is repealed 
 by implication only pro tanto, to the extent of the repugnancy." 
 (Wood vs. United States, 16 Peters, 342; Davis vs. Fairbairn, 3 How- 
 ard, 636.) 
 
 The repugnancy must be in the very same matter. (Dr. Foster's 
 case, 11 Coke, 56 b, 63 a.) 
 
 Strike out the twelfth section of the act of 1851, and in its place in- 
 sert the 12th section of the act of 1852, then there will be as little 
 
14 
 
 repugnance, as much concord between the 9th. 10th, and 12th sections 
 as there was before this amendment. 
 
 The 12th section of (he act of 1851 required notice of an intention 
 to prosecute an appeal from the decision of the commissions, to be en- 
 tered on the journal or record of the board of commissioners; it 
 limited the time of giving such notice to sixty days after notice of their 
 decision, and limited the time of conmiencing the actual prosecution 
 of tbe appeal by filing the petition in the district court, to six months 
 from the decision of the commissioners. The distinction between the 
 notice of an intentioji to prosecute the appeal, and the actual prosecu- 
 tion of it, is here plainly marked. The regulations for the prosecution 
 of the appeal are prescribed in the 9th and lOth sections. The act of 
 1852 changes the place of giving notice of an intention to prosecute 
 an appeal from the office of the board of commissioners to the office 
 of the clerk of the district court, and enlarges the time for giving no- 
 tice of the intention to prosecute the appeal. 
 
 The act of 1S51, and the twelfth section of the act of 1852, being in 
 pari materia, are to be taken together and construed as one act. The 
 act of 1852 says the filing a transcript of the record of the board of 
 commissioners in the office of clerk of the proper district court shall 
 ipso facto operate as an appeal for the party against whom the decision 
 is made. But the filing of the record being ordered by the law to be 
 done by the commissioners, and not by the party himself, the statute does 
 not profess to bind the party by this act of other persons. It gives lime 
 to the party to consider whether he will adopt the appeal as his own 
 act, and limits the time within which he must give notice, if he does 
 adopt it; otherwise, the statute says, the appeal "shall be regarded as 
 dismissed." 
 
 The filing of the transcript does not make an appeal simpliciter, but 
 secundum quid. It is provisionally, not absolutely, an appeal; it de- 
 pends upon the condition that the party shall adopt it, and give notice, 
 within the time and in the manner prescribed by the twelfth section of 
 tlie act of 1S52, that he will prosecute the appeal; 
 
 But how is he to prosecute his appeal in the district court? How is 
 the adverse party to be brought into the district court to answer? To 
 what is he to answer? Is the appeal to be conducted without any 
 pleadings? 
 
 The ninth and tenth sections of the act of 1851 solve these ques- 
 tions. The appeal is not to be conducted without pleadings. The 
 appellant is required to present to the proper district court his petition, 
 ''praying the said court to review the decision of the commissioners, 
 and to decide on the validity of the claim." Such petition, if presentr 
 ed by the district attorney on behalf of the United States, "shall fully 
 and distinctly set forth the grounds on which the said claim is alleged 
 to be invalid." When presented in behalf of the United Stales, 
 "a copy" of the petition "shall be served on the claimant or his attor- 
 ney." After such service made, the party so served "shall be bound 
 to answer the same within a time to be prescribed by the judge of the 
 
15 
 
 court." A copy of the answer "sliall be served upon the adverse 
 party thirty days before the meeting of the court," The district court 
 shall proceed to render judgment "upon the pleadings and evidence in 
 the case, and upon such further evidence as may be taken by order of 
 the court." 
 
 If the 12th section of tlie act of 1852 be construed to repeal by im- 
 plicalion the ninth section of the act of 1851, the tenth section of 
 that would also be repealed by implication, and these consequences 
 would follow: In order to obtain notice of the appeal, the appellee must, 
 by himself or attorney, attend at the clerk's office of the district court 
 during the whole time allowed by the act of 1852 to the party to file 
 notice of his intention to prosecute the appeal; a suit would be depend- 
 ing in a court of record without a citation, and without plaint or an- 
 swer; further proof could be taken by either party without allegata to 
 govern and control the probata; the court would be called to pronounce 
 a decree without any pleadings, without petition, bill, plaint, or alle- 
 gation by the actor. 
 
 Such deviation from the rules for the administration of justice, es- 
 tablished from the beginning, and approved by sages during so many 
 generations; such monstrousness cannot be implied; the positive, im- 
 portant, salutary enactments of the ninth and tenth sections of the act 
 of 1851 cannot be repealed by mere implication, deduced from the 
 12ih section of the act of 1852. 
 
 The motions filed on the 30th September, (p. 61,) and 2Gth October, 
 1853, (p. 63,) by the then appellee, Fremont, were distinct applications 
 to the court for extending to him the benefits of the ninth section of 
 the act of 3d March, 1851; they were warnings to the district attorney 
 to comply with those enactments. When the district attorney brought 
 the case to final hearing and decree on the seventh of January, 1854, 
 (p. 109,) without any pleadings, in disregard of the positive provisions 
 of the statute of 1851, and of the two warnings before mentioned, the 
 court ought not to have disregarded those enactments; ought not to 
 have reversed the decision of the commissioners under such circum- 
 stances. 
 
 II. — The district court ought to have regarded the appeal as dis- 
 missed. 
 
 The jurisdiction of the district courts of the United States for the 
 northern and southern districts of California, to grant reviews of the 
 decisions of the board of commissioners, is anomalous, peculiar, and 
 limited; peculiarly and specially limited by the statutes which confer 
 and regulate the exercise of such jurisdiction. Therefore, every fact 
 necessary to sustain such special limited jurisdiction ought to appear in 
 the record. 
 
 The mode of beginning to obtain a review, by the act of the commis- 
 sioners, and not by the act of the party, in filing a transcript of the re- 
 cord of their proceedings in the office of the proper district court, which 
 was to operate; ipso facto, as an appeal, was peculiai. That appeal- 
 
16 
 
 however, was only provisional, not absolute; the party had time to 
 adopt it or not, as before explained ; that was peculiar, not the common 
 mode. Then the mode directed by the r2th section of the act of 1 852, 
 for giving notice that the party had elected and intended to prosecute 
 the appeal, by filing a notice of such election and intention, not with 
 the court of commissioners, or in the office of their secretary, wherein 
 the adverse party had appeared and had an attorney, but in another 
 court, wherein he had not appeared and had no attorney, was special, 
 peculiar, out of the ordinary mode. The limitation of time within 
 which the party intending to prosecute the appeal should file a notice 
 of such intention in the oflice of the district court, otherwise ''the ap- 
 peal shall be regarded as dismissed," is peculiar, diflferent from the 
 language of the statutes of limitations in general, which are to be 
 pleaded, to give the plaintiff opportunity, by replication, to show him- 
 self or herself to be within some one or other of the savings in the 
 statute. 
 
 By whom shall the appeal ''be regarded as dismissed?" 
 
 Undoubtedly this command is addressed to the court — to the judge 
 who is to pronounce the judgment of the law. 
 
 In Thomas vs. Harvie's heirs, (10 Wheat., 149,) the limitation of 
 five years was applied by this court to a bill of review, although such 
 limitation had not been specially pleaded in the circuit court. 
 
 The failure and refusal of the district attorney to prosecute the review 
 of the decision of the commissioners, according to the ninth section of the 
 act of 1851, deprived the said Fremont of the opportunity to insist upon 
 the statute of limitations by answer and plea. 
 
 But the motions made by Fremont, in the district court, were equiv- 
 alent to a plea of the statute of limitations, seeing that he had no oppor- 
 tunity to answer or plead, by reason of the disregard of the ninth sec- 
 tion of the act of 1851. 
 
 The fair and just construction of the act of 1851 , and twelfth section 
 of the act of 1852, in pari materia, considered together as one act, 
 thereby to find the intention of the legislature, leads to these conclu- 
 sions: that the Congress did not intend to repeal the ninth and tenth 
 sections of the act of 1851 ; 
 
 That the 12th section of the act of 1852 repeals in part, and modi- 
 fies in part, the 12th section of the act of 1851 : 
 
 It repeals so much of the 12th section of the act of 1851 as required 
 that notice of an intention to ask a review of the proceedings and deci- 
 sion of the commissions should be filed with the commissioners, by sub- 
 stituting the filing of such notice in the office of the clerk of the district 
 court; 
 
 It enlarges the time hmited for giving such notice, from sixty days 
 after the decision of the commissioners, as in the act of 1851, to six 
 months after the transcript of the record of the proceedings and decision 
 of the commissions shall have been filed with the clerk of the district 
 court; in case the claimant complains of the decision of the commission- 
 ers, and iu case the United States complain, to six months from the 
 
17 
 
 time when the Attorney General shall receive a transcript of the record 
 of the proceedings and decision of the commissioners. 
 
 After such notice given by the one party or the other, of intention to 
 prosecute an appeal, it does not leave him without limitation of time 
 to tile the petition and proceed in the district court; on the contrary, 
 the intention of the legislature, to be collected from the two acts of 
 1851 and 1852, is to the etfect that the petition and full statement 
 therein, required by the 0th section of the act of 1851, shall be filed in 
 the district court within six months after the appealing party shall have 
 given the due notice, in manner and time, of his intention to prosecute 
 the appeal in the district court. 
 
 The utmost effect which the 12th section of the act of 1852 can 
 have upon the 9th section of the act of 1851, by any fair and reason- 
 able implication, is to relieve the petitioner from the necessity to ac- 
 company his petition with " a transcript of the report of the board of 
 commissioners," inasmuch as that has been already fded with the 
 clerk of the district court. 
 
 This record does not show when the Attorney General received a 
 transcript of the proceedings and decision of the commissioners. That 
 fact was within the knowledge of the Attorney General; it lies in 
 averment, and is traversable. It should have been alleged, but is not. 
 The record shows that the transcript of the proceedings and decision 
 of the commissioners, pronounced 27th December, 1853. was filed with 
 the secretary of the board on lOih January, 1853. (p. 34.) The no- 
 tice by the Attorney General of the intention to prosecute the appeal 
 was filed with tiie clerk of the district court, September 20, 1853. (p. 
 60.) Eight montlis and nine days had intervened between the filing of 
 the final decision of the board with their secretary, and the filing of the 
 notice of the Attorney General with the clerk of the district court. 
 The Attorney General might in due course of mail have received the 
 transcript in February, 1853, more than six months (full seven months) 
 before his notice was filed with the clerk of the district court. 
 
 As the limitation against the United States begins to run and be ac- 
 counted from the time that the Attorney General received a transcript, 
 not from the time when the other transcript wa.sjiled with the clerk 
 of the district court, and as the record does not show the notice of the 
 Attorney General to have been filed in due time within the period of 
 prescription, the appeal ought to have been regarded by the district 
 court as dismissed, and must be so regarded by this court. The mo- 
 tions made in the district court, and so repeated, warned the district 
 attorney to conform to the requirements of the 9th section of the act of 
 1851. After such repeated warnings, the United States stand now 
 without excuse. 
 
 The 8th section of the act of 1851 brought sub judice the whole 
 body of lands in the State of California, derived in private property 
 before the cession of the country to the United States. 
 
 Such a condition of things, so hostile to the improvement of the 
 country and to the happiness of society, demanded of the Congress an 
 3 
 
IS 
 
 end as speedy as iniglit be, consistently with the purpose of ascertain- 
 ing with just and reasonable accuracy what lands belonged to private 
 persons as of their property, and what lands belonged to the public 
 domain. To that end, to be accomplished with all reasonable despatch, 
 the Congress enacted special short periods of limitation, expressly ap- 
 plying to the United States, to the private claimants, as seen in the 
 9th and 12th sections of the act of 1851, and 12th section of the act 
 of 1852. 
 
 It does not then become the judges to break down, by implication 
 and far-fetched construction, these limitations, these statutes of repose, 
 enacted by the Congress of the United States. On the contrary, those 
 means of quiet and repose are to be advanced by every fair construc- 
 tion, reasonable implication, and just inference. 
 
 In relation to these points, (number one and two,) it is most respect- 
 fully suggested, that if, by iiTiplication, the ninth and tenth sections of 
 the act of 1851 are to be considered as repealed by the 12ih section of 
 the act of 1852, and furthermore, that said 12th section of the act of 
 1852 repeals in toto the 12th section of the act of 1851, whereby after 
 notice given of an intention to prosecute an appeal is without any 
 limitation of the time within which such intention shall be actually car- 
 ried into effect; then there be created, in judicial proceedings in equity, 
 two monsters, nova monstra, horrid monsters — a suit in equity, begun, 
 pending, heard, and relief granted to the complainant without a petition, 
 bill, or plaint, without pleadings; and a bill of review upon matters of 
 fact and law, without limitation of time within which such bill of re- 
 view shall be prosecuted. 
 
 Up07i the merits. 
 
 The undersigned will insist that the claim of J. C. Fremont to the 
 tract of land called "Mariposas" is valid, and that the decision of the 
 board of commissioners ought to stand unaltered and affirmed. 
 
 For convenience, perspicuity and brevity, so far as the latter may 
 consist with the principles of international law, the public faith and the 
 weighty private rights and interests involved in this case, (which is the 
 forerunner of upwards of seven hundred appeals already taken to this 
 court froin the decisions of the district courts, in reviewing the decisions 
 of the commissioners in California,) the undersigned will consider the 
 merits under general divisions, subdivided into paragraphs. 
 
 III. — As to the expression in the grant, that it is ''subject to the ap- 
 probation of the most excellent the departmental assembly," which 
 approbation has not been obtained. 
 
 In discussing the questions arising upon these private land claims in 
 the State of California, we must bear in mind that the State passed 
 "An act adopting the common law;" (13th April, 1850, Compiled 
 Laws of California, p. 186, chap. 41;) and that the act of Congress 
 to ascertain and settle the private land claims in the State of California 
 has liraitedj circumscribed and governed the powers and decisions of 
 
19 
 
 the commissioners and ilie district and supreme courts by live rules: 
 
 ^' — the treaty of Guadalupe Hidalgo, the Im of nations, the laws, 
 
 usages and customs of the govertmient from which the claim is derived, 
 the principles of equity, and the decisions of the Supreme Court of the 
 United States so far as they are applicable." (9, Stat, at Large, p. 
 633, chap. 41, sec. 11.) 
 
 Testing the claim of Fremont by the rules so prescribed by (he Con- 
 gress of tiie United States, it must be pronounced good and valid, as 
 decided by (he commissioners. 
 
 Independently of the express provisions of the eighth and ninth ar- 
 ticles of the treaty of Guadahipe Hidalgo, the law of nations protects 
 the private rights to lands existing when the United States acquired 
 from Mexico the sover€ign(y over California. '-The idea is now ex- 
 ploded that a mere change of sovereignty produced any change in the 
 state of rights existing in the soil. In this respect everything remains 
 in the actual state, wlieiher the interest was acquired by law under a 
 grant, or by individual contract." 
 
 Mutual Ass. Society vs. Watt's Ex'r, 1 Wheaton, 282, 
 
 Soulard vs. United States, 4 Peters, 512. 
 
 United States vs. Percheman, 7 Peters, 86, 87. 
 
 Slrother vs. Lucas, 12 Peters, 436. 
 
 To this principle of the law of nations the statute specially super- 
 adds, that the commissioners and the courts of the United States shall 
 be governed, in deciding on the validity of any claim, by "the laws, 
 usages and customs of (lie government from which the claim is de- 
 rived." 
 
 As the land is in (he Terri(ory of California, the laws, usages and 
 customs of the government of California are the rules to be consulted. 
 
 § 1. The departmental assembly, in exercising the power of ap- 
 proving or disapproving grants made by the officer who was by law en- 
 trusted to make them, had not a wild, unbridled, frantic power to an- 
 nul the grants upon the tyrannical plea "sic volo, sic jubeo." It was 
 a revisory power, to be exercised as a public trust in correcting the acts 
 of the governor, if contrary to the rules prescribed and existing when 
 he made the grant. If the acts of the governor were within the pale of 
 the authority committed to him, the departmental assembly was 
 morally obliged to approve, as much so as the judges of the Supreme 
 Court of the United States are morally obliged to affirm the decision 
 of the court under their revision, unless they find error and illegality 
 in the judgnient or decree. 
 
 Although the grant, when made, was not definitely valid, it was 
 nevertheless obligatory until reversed; it passed to the grantee a vested 
 interest, a property as well protected by the law of nations against for- 
 feiture and escheat upon the change of sovereignty, as if it had been 
 a perfect title. So are the decisions of the Supreme Court of the Uni- 
 ted States before cited. 
 
 The regulations made on the 21st November, 1828, for granting 
 lands in the (erri(orics of MexicO; in pursuance of tlie decree of the 
 
20 
 
 Republic of IStli August, 1S24, declare: ''Sec. 5. The grants made 
 to families or private persons shall not be held to be definitively valid, 
 without the previous consent of the territorial deputation, to which end 
 the respective documents (expedientes) shall be forwarded to it." 
 
 "Sec. 6. When the governor shall not obtain the approbation of the 
 territorial deputation, he shall report to the supreme government, for- 
 warding the necessary documents for its decision." 
 
 The duty of reporting the grants to the departmental assembly, with 
 the proceedings, for their approval, indubitaljly belonged to the gov- 
 ernor; it was not the duly of the grantees. If the departmental as- 
 sembly did not approve, the governor's duty was to report to the su- 
 preme government. 
 
 ^ 2. The failure or neglect of the governor or secretary to report to 
 the departmental assembly, or of that assembly to act upon the grants 
 when reported to them, cannot invalidate the grants made by the 
 governor. 
 
 The principles of equity, the dictates of natural justice, forbid that 
 any person, prince or potentate, shall have advantage of his own wrong, 
 work a forfeiture by his own neglect, or punish a subject or a citizen 
 who has done no wrong, committed no forbidden act, and is chargeable 
 with no default. 
 
 The maxims are: '-'Nul prendra advantage de son tort demesne." 
 ''Nemo punitur sine injuria, facto, seu defalta." (Coke, 2 Inst. 287, 
 713, and index of maxims at end of that volume; l^yile and others 
 vs. The State of Arkansas and others, 9 Howard, p. 333.) 
 
 The principles of equity decided by the Supreme Court of the Uni- 
 ted States in tlie case of Lytle and others vs. The State of Arkansas, 
 apply very appropriately and cogently to the present case. In that the 
 pre-emptioner had proved his right of pre-emption, tendered the money, 
 and proffered his entry; the Commissioner of the General Land Office 
 reiected his claim, refused to admit his entry, thereafter suffered the 
 same land to be entered by the State of Arkansas, and the patent 
 issued to that State. Upon bill in equity the heirs of the pre-emptioner 
 had a decree for the land — upon the well established principle that 
 where an individual "fails to attain his right by the misconduct or ne- 
 glect of a public officer, the law will relieve him." 
 
 ^ 3. That the departmental assembly has not disapproved the grant 
 to Alvarado, leaves it as an existing title and property in the land as 
 fully protected by the law of nations, and equally within the eleventh 
 section of the act of 3d March, 1S51 , (vol. 9, p. 633,) as if it were 
 perfected by the approval of the departmental assembly. "No prin- 
 ciple is better settled than that an inchoate title to land is property." 
 (Uelassus vs. United States, 9 Peters, 133; so in Chouteau vs. United 
 States, 9 Peters, 145.) 
 
 And again in Strother ?;5. Lucas, (12 Peters, p. 436:) "This court 
 has defined property to be any right, legal or equitable, inceptive, in- 
 choate, or perfect, which had so attached to any piece or tract of land, 
 great or small, as to affect the conscience of the former sovereign with 
 
21 
 
 a trust, and make him a (lustec for an individual, according to the law 
 of nations, of the sovereign himself, the local usage or custom of the 
 colony or district, according to the principles of justice and rules of 
 equity." 
 
 So in Soulard vs. The United States, (4 Peters, 512:) The term 
 ''properly" as applied "to lands comprehends every species of title 
 inchoate or complete. It comprehends those which lie in contract, 
 those which are executory, as well as those which are executed. In 
 this respect the relation of ihe inhabitants to their government is not 
 changed. The new government takes the place of that which has 
 passed away." 
 
 ^ A. ''A grant or concession made by that officer who is by law en- 
 trusted to make grants, carries with it prima facie evidence that it is 
 within his powers. No excess of them, or departure from them, is to 
 be presumed. He violates his duty by such excess and is responsible 
 for it. He who alleges that an officer entrusted with an important 
 duty has violated his instructions must show it. This subject was fully 
 discussed in The United States ?;5. Aredondo, 6 Peters, 691; Perche- 
 raan vs. The United States, 7 Peters, 51; and The United States ^;5. 
 Clarke, 8 Peters, 436 " (Delassus vs. United States, 9 Peters, 134.) 
 
 § 5. The grant vested in the grantee an estate in fee, with a right 
 of immediate possession, subject to the condition that it should be ap- 
 proved by the departmental assembly of California, or by the supreme 
 government of Mexico. This condition was possible in its creation, 
 and so long as the territory of California remained under the jurisdic- 
 tion of the Mexican Republic; but it has become impossible by the 
 treaty of Guadalupe Hidalgo, concluded on the 2d February, 1848, 
 between the United States and the Mexican Republic, by which the 
 sovereignty over this territory of California was ceded to the United 
 States. By this the condition is discharged and gone forever, and the 
 estate of the grantee is absolute. (Co. Litt. 206, a and b; Touch- 
 stone, Condition, chap. 6, p. 157; Bac. Ab., Condition, (N.;) Po- 
 thier on Obligations, part 2, chap. 3, paragraph 212, (Newburn ed., 
 p. 127;) United States vs. Aredondo, 6 Peters, 745, 746. 
 
 § 6. A grant is a contract. The grant of the State of Georgia to 
 James Gunn and others was a contract. (Fletcher vs. Peck, 6 Cranch, 
 136, 137.) 
 
 A warrant for a tract of land issued by the State of Pennsylvania in 
 pursuance of an act of the legislature for the sale of the vacant lands 
 within the Conmionwealth, was a contract; as adjudged in Hidekoper's 
 Lessee vs. Douglass, I Cranch, 70. In this case Chief Justice Mar- 
 shall, in delivering the opinion of the court, said: " This is a contract; 
 and although a Slate is a party, it ought to be construed according to 
 those well established principles which regulate contracts generally." 
 
 If the contract contained in the grant by the Governor of California 
 to Alvarado shall now be abrogated, and the land therein granted be 
 escheated to the United States, upon the plea that there has been no 
 approval by the departmental assembly of California, while there has 
 
22 
 
 been no disaffirmance, it wonld then be truly said, in the language of 
 Chief Justice Marshall, in delivering the opiin'on of the court in The 
 United Slates vs. Perchenian, (7 Peters, 86, 87:) " The law of nations 
 would be violated, and that sense of justice and right which is acknow- 
 ledged by the whole civilized world would be outraged.'" 
 
 The Congress of the United Stales, so far from intending that such 
 an outrage shall be committed by their authority, liave expressly com- 
 manded in the lllh section of the act of 3d March, 1851, that the court 
 of commissioners and the district court, and the Supreme Court of the 
 United States, in deciding upon the validity of any claim brought be- 
 fore them under the provisions of that act, "shall be governed" (mark 
 the force of the expression ^' governecP^) ''by the treaty of Guada- 
 lupe Hidalgo, the law of nations, the laws, usages, and customs of the 
 government from which the claim is derived, the principles of equity, 
 and the decisions of the Supreme Court of the United States, so far as 
 they are applicable." 
 
 From such a positive command, from such a jurisdiction, from such 
 rules for deciding, no power to escheat, or forfeit for want of the action 
 of the departmental assembly, can be derived. 
 
 IV. — Of the condition annexed to the grant that "He shall not sell, 
 alienate, or mortgage the same; nor subject it to taxes, entail, or any 
 other incumbrance." 
 
 The grant conveys expressly in "fee" to Alvarado. The after con- 
 ditions annexed are what the jurists denominate conditions subsequent, 
 by whicli a vested interest is to be defeated. (1 Bacon's Ab., Condition 
 (I); Co. Litt., 201 a.) 
 
 Conditions precedent must be performed before the estate can vest or 
 be enlarged. But where a vested estate of freehold is to be defeated 
 by a condition subsequent, some act must be done by him who would 
 take advantage of the condition. "And the reason is, that a freehold 
 and inheritance shall not cease without entry or claim, and also the 
 feoffor or grantor may waive the condition at his pleasure." (Co. Litt., 
 218 a.) 
 
 The title passed by the grant to Alvarado, v.^hich was matter of re- 
 cord, and it could not be re-invested in the government but by matter of 
 record, by some notorious act evincing the intention of the government 
 to insist upon the condition, and not to waive it. (Fairfax's devisee 7j>s. 
 Hunter's lessee, 7 Cranch, p. G21, and the numerous authorities (here 
 cited.) 
 
 The grant must be construed altogether, as one whole, and not by 
 piecemeal. A fee is granted, subject to be defeated by the subsequent 
 conditions. 
 
 But this condition not to sell, if taken in the extensive sense, would 
 be repugnant to the grant of the "fee," and void in law. 
 
 "If a feoffment be made upon this condition, that the feoffee shall 
 not alien the land to any, this condition is void, because when a man 
 is enfeoffed of land or tenements, he hath power to alien them to any 
 
 •f n 
 
23 
 
 person by the law. For if such a coudilion should be good, then the 
 condition should oust him of the power which the law gives him, wliich 
 would be against reason, and therefore such condition is void. 
 
 " But if the condition be such, that the feoffee shall not alien to 
 such a one, naming his name, or to any of his heirs, &c., or the like, 
 which condition doth not take awa)^ all the power of alienation from 
 the feoffee, &c., then such condition is good." (Littleton, sect. 360, 
 36L; Co. Litt., 223 a.) If the condition be ''that the feoOee shall 
 not alien in mortmain, this is good because such alienation is prohibited 
 by law, and regularly wiiatever is prohibited by law may be prohib- 
 ited by condition." (Co. Litt., 223 b. See also for examples of 
 repugnant conditions, .5 Viner, Condition, A a, Repugnant to Grant, 
 pi. 2, 3, 7, 11, 16, 20, 21 , page 105 to 108.) In these cases of con- 
 ditions repugnant to the grant, the conditions are void and the grant is 
 good. "A liberty inseparable from the estate cannot be restrained by 
 proviso." (Bac. Ab., Condition, L, of Repugnant Conditions.) 
 
 " A condition annexed to an estate granted is a divided clause from 
 the grant, and therefore cannot frustrate the grant precedetjt, neither in 
 anything expressed, nor in anything implied, which is of its nature 
 incident and inseparable from the thing granted." (5 Viner, Condi- 
 tion, A a, pi. 22, page 108.) 
 
 By the Spanish decree of 4th January, 1813, art. 2, the distribution 
 of lands shall be in full and exclusive ownership, (without prejudice 
 to the roads, crossings, watering-places and servitudes,) but not to be 
 entailed or placed in mortmain. (Galvan's Collection of Decrees and 
 Ordinances of Spain, p. 57.) 
 
 By the decree of ISth August, 1824, art. 13, respecting the coloni- 
 zation of lands, " the new colonists cannot transfer their possessions 
 in mortmain." This special prohibition leaves all other transfers free 
 to the proprietors. 
 
 Again, in the regulations of 24th Nov'r, 1828: "Art. 12. Every 
 new colonist, after having cultivated or occupied, agreeably to his capi- 
 talization, will take care to prove the same before the municipal au- 
 thority, in order that the necessary record being made, he may consoli- 
 date his right of ownership, so that he may dispose freely thereof." 
 
 By this it appears, that to the right of ownership of lands acquired 
 under the colonization decree of 1824, and regulations of 1828, the 
 free disposition thereof, except in mortmain, is an incident. That is 
 conformable to right reason, to common sense, to the connnon law, 
 which is the perfection of reason and experience, to the Roman law, to 
 the natural desires and usages of men, in all ages and in all countries. 
 
 The power to alienate is incident to and inseparable from a fee. He 
 who holds lands without any power to alienate them holds no fee. 
 
 The grant to Alvarado by the governor is the grant of a fee, clearly 
 and emphatically declared. Such an estate the governor had power 
 to grant, but he had no power to place lands in perpetuity, in mort- 
 main. 
 
 The divided clause, not to sell or alienate, annexed to the grant by 
 
24 
 
 way of condition, nnist be lestricted to the particular alienations wluch 
 the law prohibited; all beyond is void; the grant is good, the illegal 
 condition annexed is void. 
 
 This condition, so restrained within the rules of law, did not prohibit 
 and annul the conveyance made by Alvarado to Fremont, 
 
 As the breach of this condition caused no damage, equity would re- 
 lieve against a forfeiture, if attempted to be enforced. (See next head, 
 and cases there cited in ^ 3 and § 5.) 
 
 V. — Of the non-precise performance to build a house within a year 
 from the date of grant. 
 
 § 1. The proof is, that the Mariposas was so infested by hostile In- 
 dians until the year 1849, that it was impossible to build, occupy, or 
 make a survey without the piotection of a considerable military force. 
 (See depositions of Alvarado, pp. 44, 45; Pico, p. 53.) 
 
 In 1849 and 1850 Col. P^'remont erected a dwelling-house, barn, and 
 other buildings and improvements on the land, and has continued to 
 occupy it ever since. (Wright, p. 56; W. C. Jones, esq., pp. 57, 58.) 
 He has improved the land at great costs and charges. 
 
 This is a sufficient excuse for not building and occupying earlier. 
 
 § 2. But for non-performance of this condition subsequent, the gran- 
 lee was subject to no forfeiture unless at the denouncement and peti- 
 tion of another for the same land before any building and habitation 
 was accomplished. No such denouncement and petition for a grant to 
 another person was ever made. If such denouncement and petition 
 had been made, upon the hearing, the excuse that the land was remote 
 from all settlements, and infested by hostile Indians, requiring a mili- 
 tary force to expel them and to protect a settlement, would have been 
 amply sufficient. 
 
 After a building and habitation, the denunciation and petition by 
 another for a grant of the same land could not be maintained, as ad- 
 judged by the supreme judicial tribunal of California (before the cession 
 to the United Slates) in the case of Garcia vs. Hone. (Reported, p. 57 
 of the transcript.) 
 
 April 17, 1839, the governor of California granted to Thomas Bone 
 a tract of land with the usual conditions annexed, among which was 
 that of building a house and inhabiting it within a year. On 6th Oc- 
 tober, 1842, Bone sold the land to Garcia — no house, nor any improve- 
 ment whatever, having during that time been effected. Garcia paid 
 part of the purchase money, and gave his stipulation for the payment 
 of the residue at a future day. Garcia took possession, built and occu- 
 pied. In 1844, Garcia denounced Bone's title for want of building 
 and habitation by him, and petitioned the governor for a grant to him, 
 the petitioner Garcia, and also to be relieved from his stipulation for 
 further payment to Bone upon the plea that Bone's title was nullified 
 by breach of the condition annexed to his grant. The governor decided 
 that the title to the land had passed from Bone to Garcia by the act of 
 sale, and refused to make a grant to Garcia. As to the petition for re- 
 
25 
 
 lief against the stipulation for further payment, tlje governor referred 
 that matter to the judicial tribunal as belonging to its cognizance. The 
 supreme judicial tribunal adjudged Garcia not entitled to relief, inas- 
 much as the title of Bone had not been denounced before Garcia en- 
 tered into possession under it. 
 
 These decisions of the governor and of the supreme judicial tribunal 
 of California establish these principles: 1st, The denouncement by an 
 individual, and petition for a grant to the denouncer, is the only pen- 
 alty for breach of the conditions subsequent annexed to the grants 
 under the laws of California. 2dly. That such denouncement for fail- 
 ure to build and inhabit within the period prescribed in the petition 
 must be made before any building and habitation has been effectedj it 
 comes too late after the building and habitation has been effected, al- 
 though they were not accomplished within the period prescribed, 3dly. 
 That a sale by a grantee under the colonization laws of California was 
 not unlawful, not a forfeiture of the title, (if not in mortmain, entail. 
 Of perpetuity.) 
 
 These decisions of the governor and supreme judicial tribunal of 
 California were properly followed by this board of commissioners. In 
 Elmondorf vs. Taylor, (10 Wheat. 159,) depending on local law, 
 Chief Justice Marshall, in delivering the opinion of the court, said: 
 
 "This court has uniformly professed its disposition, in cases depend- 
 ing on the laws of a particular State, to adopt the construction which 
 the courts of tlie State have given to those laws. This course is found- 
 ed on the principle, supposed to be universally recognised, that the 
 judicial department of every government, where such department exists, 
 is the appropriate organ for construing the legislative acts of that gov- 
 erninent. Thus no court in the universe which professed to be gov- 
 erned by principle would, we presume, undertake to say that the courts 
 of Great Britain or of France, or of any other nation, had misunder- 
 stood their own statutes, and therefore erect itself into a tribunal which 
 should correct such misunderstanding." 
 
 § 3. The llth section of the act of 3d March, 1851, commands that 
 the decisions upon the claims arising under this act shall be governed 
 "by the principles of equity." 
 
 Who ever heard of a court of equity as being an instrument for en- 
 forcing penalties and forfeitures? 
 
 One great branch of the jurisdiction of the courts of equity is to re- 
 lieve against penalties and forfeitures. 
 
 In the beginning, obligations in a given sum, with condition to be 
 discharged by the payment of half that sum by a day certain — if not 
 complied with punctually, the obligation for tlie larger sum to be in 
 full force. In default of punctual payment, the court of law rendered 
 judgment for the whole sum. Courts of equity relieved against the 
 breach of such condition by payment of the sum mentioned in the con- 
 dition, with legal interest by way of compensation for the delay. It 
 was against good conscience to exact the penalty for the non-precise 
 performance at the dav. At last the courts of law entered judgment 
 4 
 
26 
 
 for the penalty, to be discharged by the sum mentioned in the condition, 
 with legal interest until paid, to give the time and expense of applying 
 for relief to a court of equity. 
 
 Where bonds were infected with usurious interest, and thereby were 
 void at law, courts of equity relieved against tlie usury, but only upon 
 condition that compluiriant v culd waive the forfeiture and pay the 
 sum lent with le2;al interest. The penalty inflicted bylaw, of forfeiting 
 the whole obligation, was never yet enforced in favor of the borrower 
 who applied to a court of equity for relief. 
 
 To countenance penalties and forfeitures is foreign to the principles 
 upon wiiich courts of equity proceed. They lend their aid never to 
 enforce such, but to relieve against them. 
 
 Jn all cases where a person has broken a condition subsequent, 
 whereby an estate would be divested, equity, if there be no damage, 
 or if there can be a compensation, v/ill relieve. 
 
 In Pophain vs. Bampfield, (1 Vernon, 79, 83, and 167,) Chancellor 
 Nottingham declared that of conditions subsequent: " When the court 
 can in any case compensate the party in damages for the non-precise 
 performance of the condition, there it is just and equitable to relieve, 
 as if a man's estate be upon condition to pay money at a certain day, 
 and he fails of payment," (p. 83.) And he declared, ''that if the sub- 
 stance of the condition in this case was performed itshould serve turn," 
 (p, 83, and see also p. 167.) 
 
 In Barnardiston vs. Fane and others, (2 Vernon, 366,) E. R. devised 
 his real estate to R. R., he to pay to the testator's two daughters =^1,000 
 apiece in six months after the decease of his wife; the money not 
 being paid, the daughters, the heirs-at-law, recovered judgment in 
 eiectment. Upon bill in equity Lord Keeper Somers decreed relief 
 against the br*,ach of the condition, the plaintiff paying what was in 
 arrear, with interest and costs 
 
 In Northcote vs. Duke, (Ambler, 413,) the landlord was about to 
 bring an ejectment for breach of a condition in a lease for three lives, 
 whereby the lessee was prohibited from making a sub-lease for more 
 than seven years without the consent of the landlord. The plaintiffiti 
 equity brought his bill to be quieted against the landlord, who threat- 
 ened to proceed at law for a forfeiture by breach of the condition, in 
 having made a lease for fourteen years without the consent of the land- 
 lord. The lessee for fourteen years was a good tenant and behaved 
 well. Lord Chancellor Northington said: "A court of law ought to 
 see that in such a case there is some injury done, to make the act a 
 breach of the condition so as to forfeit the estate. 
 
 "It was argued that equity will not relieve where the act is voluntary. 
 But the landlord may not have been injured at all, or in a manner 
 for which I can compensate him. 1 take the rule to be, that in all 
 cases where a person has broken a condition and forfeited a penalty, 
 equity will relieve if there can be a compensation. In this case there 
 is no complaint that the tenant &oe^ not occupy the land very properly. 
 1 shall retain the bill with liberty to the landlord to bring his eject- 
 
27 
 
 ment." Upon this view of the equitable part of the case the landlord 
 declined a trial at law, and the decree was pronounced for the relief of 
 the coniplainanf. 
 
 The case of Garcia vs. Bone, before recited, and the respective cases 
 decided by the judicial tribunal of the territory of California and of 
 the board of commissioners, are in perfect accordance with the'equita- 
 ble principles adjudged by Nottingham, Soniers and Northiiigton, as 
 before cited. What damage was done to the territorial government of 
 California or to the supreme government of Mexico, by the failure of 
 Alvarado, or of his alienee, Col. Fremont, to build upon or occupy 
 the land sooner than was done? Besides, the excuse for not doing so 
 because of the hostility of the Indians is amply sufficient. If the 
 territorial government of California and the supreme government of 
 Mexico could not, or would not, suppress the hostility of the Indians, 
 neither Alvarado nor his alienee, Col. Fremont, ought to suffer on that 
 account. 
 
 § 4. But what damage have the United States suirercd for want of 
 the building of a house at Mariposa?, and the iiabilaLioii thereof within 
 one year from the 29di February, 1844? 
 
 Upon what equitable plea can the United States claim the land so 
 granted to Alvarado. by him conveyed to Col. Fremont, and by him 
 built upon, improved and inhabited, at such great labor and costs? 
 
 §5. By requiring the commissioners and the courts, in deciding 
 upon these claims, to be governed by the principles of equity and the 
 decisions of the Supreme Court of the United States, so far as they 
 are applicable, the Congress have waived all forfeitures for non-per- 
 formance of conditions subsequent, denied to the commissioners and 
 the courts (he power to enforce forfeitures, by demanding tlie ''sum- 
 mum jus," and have not required them to look into the non-perform- 
 ance of conditions subsequent. United Stales vs. Aredondo, 6 Peters, 
 745, 746; United States vs. Sibbald, 10 Peters, 322; Smith vs. United 
 States, 10 Peters, 330, 331. 
 
 VI. — The third and fourth conditions named in the grant are, that 
 the grantee shall solicit from the proper magistrate judicial possession, 
 by whom the boundaries shall be marked out. The magistrate who 
 may give the possession shall cause the same to ije surveyed, according 
 to the ordinance, the surplus remaining to the nation. 
 
 § I. For the performance of th 'se conditions, no time was limited. 
 They were not performed during the Mexican dominion, because of 
 hostility of the Indians. 
 
 § 2. Now, such performance has become impossible, by the acts of 
 Mexico and the United States, in (he treaty of Guadalupe Hidalgo; 
 therefore the grant has, as to these, become single and unconditional. 
 (United States vs. Aredondo, 6 Peters, 745, and the other authorities 
 cited under point III., §5.) 
 
 But because these conditions had not been perforined when the 
 treaty of Guadalupe Hidalgo was ratified: as no sketch; or plan, or 
 
28 
 
 survey had been made; and as it is agreed (p. 8) that the quantity of 
 land embraced within the exterior limits of the entire tract from which 
 the ten leagues are to be taken is more than one hundred square 
 leagues; therefore it lias been contended that no land had been sev- 
 ered from the public domain under this grant at the time of the ces- 
 sion of 'the country to the United States, 
 
 The grant contained references to natural boundaries by their names, 
 of notoriety in the country, surrounding "the tract of land known by 
 the name of the Mariposas." The "Mariposas" was generally known 
 in that country, 
 
 A grant for the tract of land called "Mount Vernon," or for the tract 
 of land called "Monticello," or for the tract of land called "Montpe- 
 lier," or for the tract of land called "The Hermitage," would, with- 
 out doubt, be sufficient in a grant or deed of conveyance to pass the 
 estate, without descending to the nn'nutia of courses and distances, and 
 corner trees. "Id cerium est quod certuoi reddi potest." The de- 
 scription of the tract of land called "Mariposas" would seem to be 
 sufficient, 
 
 A complete, perfect title is not required to sever the land from the 
 public domain; an inchoate title is sufficient. 
 
 In Chouteau's heirs vs. United Slates, 9 Peters, 145. the court said: 
 "The order of survey is the foundation of title, and is, according to 
 the acts of Congress and the general understanding and usage of Louis- 
 iana and Missouri, capable of being perfected into a complete title. It 
 is property capable of being alienated, of being subjected to debts, and 
 is as mucli to be held sacred and inviolate as other property." 
 
 In Soulard's case, 4 Peters, 512, the court defined "property" pro- 
 tected by the law of nations applied to land as comprehending "every 
 species of title, inchoate or complete. It comprehends those which lie 
 in contract; those which are executory, as well as those which are 
 executed." 
 
 Again, in Strother vs. Lucas, 12 Peters, 436: "This court has de- 
 fined 'property' to be any right, legal or equitable, inceptive, inchoate, 
 or perfect, which was so attached to any piece or tract of land, great or 
 small, as to alfect the conscience of the former sovereign with a trust, 
 and make him a trustee for an individual, according to the law of nations, 
 the law of the sovereign himself, the local usage or custom of the colony 
 or district, according to the principles of justice and rules of equity." 
 
 Herewith agree the cases of Percheman, 7 Peters, 51; Sibbald's 
 heirs, 10 Peters, 321; Aredondo, 13 Peters, 133; Forbes's case, 15 
 Peters, 173; Low's case, 16 Peters, 162; Clarke's heirs, 16 Peters, 
 231; United States vs. Lecompte, 11 Howard, 127. 
 
 § 2. There were no surveyors in California during the Mexican 
 government; therefore this method of granting lands without actual 
 survey, and by external natural boundaries, was used of necessity; and 
 the right of the grantee to elect his quantity within the exterior limits 
 alluded to in the grant appears upon the face of the grant, and by the 
 testimony of Pico, (pp. 54, 55,) and Alvarado, (p, 46.) 
 
29 
 
 In the Mexican grants, not founded on any actual survey or ad- 
 measurement, a certain quantity is granted to be admeasured at some 
 future time, not limited, the exterior limits alluded to in the grant not 
 to be exceeded; if there be a deficiency, the grantee must abide it; if 
 there be a surplus, it remains to the nation. 
 
 As the lands were not sold for money, but gratuitously conferred for 
 the purpose of being inhabited, cultivated, or of raising animals for use, 
 preferring in the distribution those who had performed important ser- 
 vices, civil or military, this mode of granting by exterior limits, includ- 
 ing a large surplus, was of no detriment to the government, inasmuch 
 as any person by petitioning for the same land, or for the surplus, that 
 is, by "denouncing," could compel the first grantee to comply with 
 these conditions subsequent, if any of them had not been performed. 
 
 The right of the first grantee to elect where the surplus should be 
 thrown out, was consistent with the grant and with usage. 
 
 These Mexican grants, containing within their exterior limits a vast 
 surplus, dilfer very materially from those grants in Louisiana and Flo- 
 rida, which have been declared by this court void, as being too vague 
 to attach to any land, as having no locality, no locative calls, non- 
 entities. 
 
 § 3. Well informed of the imperfect system of granting lands in the 
 territory of California, and of the loose descriptions in the grants, and 
 of the usage of granting lands without accurate surveys, the Congress 
 of the United Stales, in the act for ascertaining and settling the private 
 land claims in California, approved March 3d, 1851, have wisely pro- 
 vided for the exigencies arising out of that imperfect system which had 
 prevailed in that country. 
 
 The 13th section of that act has relieved the board of commissioners 
 from fixing the localities and precise boundaries of the private claims 
 which they shall adjudge valid. When the claims shall be adjudged 
 good and valid, then the boundaries are to be ascertained, surveyed, 
 and marked by the surveyor general of the United States for the district 
 of California, under the regulations prescribed in that section, and the 
 supervision of the Commissioner of the General Land Office, and the 
 further supervision of the Secretary of the Interior, if necessary. 
 
 VII. — It is objected, that Col. Fremont was a citizen of the United 
 States, an alien to the Mexican Republic, and therefore incapable to 
 take by this purchase from Alvarado, so that the title did not pass to him. 
 
 § 1. Under the Mexican decree of 1824, foreigners were invited to 
 purchase the lands. 
 
 § 2. The law is well settled that an alien can take by purchase, by 
 grant, or devise, and may convey the same to a purchaser, or may devise 
 the land to whom he will. The alien has complete dominion over the 
 land, until his title is divested and seized to the use of the government. 
 (Fairfax's devisees vs. Hunter's lessee, 7 Cranch, 619, 620.) 
 
 "But as to his capacity to purchase, no case has been cited in which 
 it has been deniedj and in the Attorney General vs. Wheeden dc Shales, 
 
30 
 
 Park. Rep. 267, it was adjudged that a bequest to an alien enemy was 
 good, and after peace might be enforced. Indeed the common law in 
 these particulars seems to coincide with the jus g-entium. Bynk. quest. 
 Pub. Jur., chap. 7; Vattel, B. 2, ch. 8, §| 11^2, 114; Grotius, lib. 2, 
 chap. 6, § 1(3." (7 Cranch, 619, 620.) 
 
 § 3. When this conveyance was made by Alvarado to Col. Fremont, 
 lOih February, 1847, this territory of California was in the possession 
 of the United States, by conquest, and was executed at a time when 
 the United States exercised jurisdiction over the territory wherein the 
 land conveyed was situated, which jurisdiction has continued uninter- 
 ruptedly from that day to this, confirmed by the treaty of Guadalupe 
 Hidalgo. 
 
 § 4. The doctrine as to the incapacities of aliens has no application 
 to this case. Col. Fremont, being then and ever since a citizen of 
 the United States, had full capacity to purchase, and hold to his own 
 use, the Mariposas tract of land, wirich then was and ever since hath 
 been subject to the jurisdiction of the United States. 
 
 VIII. — It is objected that it now appears in evidence that there are 
 gold mines on the land; therefore that the commissioner's confirmation 
 should be with a reservation of the rights of the United States in the 
 mines. 
 
 § 1. No principle of equity will authorize a court to re-form a con- 
 tract because, at the distance of five or six years after the date of the 
 contract, a discovery is made that the land, which is the subject of the 
 contract, contains in the bowels of the earth golden mineral of great 
 value — a matter wholly unknown to the grantee, or any one else, at the 
 tin)e of the contract. 
 
 § 2. Before Congress enacted the law of 1851, for ascertaining and 
 settling tbe private land claims in California, they well knew that the 
 I'ands in California aboimded in gold; yet the Congress gave to the 
 commissioners no authority to interpolate into the grants they should 
 deem valid new conditions, and reservations not contained in the grants 
 as made by the constituted authorities of California. 
 
 § 3. There is no allegation to let in proof that there are gold mines 
 on this tract of land. That which is not alleged cannot be proved; 
 such proof weighs nothing. Tiie allegata and the probata must corre- 
 spond. The allegata must lay the foundation for the probata. 
 
 § 4. California was admitted into the Union as a State by act of 
 9th September, 1850, (Stat, at Large, vol. 9, p. 452, chap. ,) ''on 
 an equal'footing with the original States in all respects whatever." * 
 # * # # "On the express condition that the people of said State, 
 through their legislature or otherwise, shall never interfere with the 
 primary disposal of the public lands within its limits, and shall pass no 
 law, and do no act whereby the title of the United States to, and right 
 to dispose of, the same shall be impaired or questioned." 
 
 The conditions can confer no new powers on the Government of the 
 United States. Neither those conditions nor the treaty of Guadalupe 
 
31 
 
 Hidalgo can enlarge or alter the powers of the Government under the 
 Constitution. The}' cannot authorize the United States to forfeit or 
 take to themselves the titles of private persons to lands, because subse- 
 quent to their grants gold has been discovered on them; nor to estab- 
 lish perpetual ground rents within the State because of such gold ; nor 
 confer upon the United States the powers of the crown of Spain, or of 
 the government of Mexico, relative to gold mines. 
 
 Finally, it is most respectfully submitted, that the law of nations, 
 the treaty of Guadalupe Hidalgo, good faith, and the act of Congress 
 of 3d March, 1851, all concur to protect the title of the claimant Fre- 
 mont, and to require that the judgment of the district court be re- 
 versed, and that the decision of the commissioners stand unaltered and 
 affirmed. Which is prayed, <fcc, 
 
 GEO. M. BIBB, 
 
 For appellant. 
 
LIBRftRY OF CONGRESS 
 
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