The Claim of William McGarrahan, alias The Panoche 
 Grande Quicksilver Mining Company of New 
 York, vs. The United States. 
 
 -. ♦-- 
 
 SPEECH 
 
 OF 
 
 OF INDIANA, 
 
 In the Eonse of Kepresentatives, February 18,1871, 
 
 The House haring under consideration the report of the Committee on the Judiciary 
 on the memorial of William McGarrahan— 
 
 Mr. KERR said : During the last Congress, when this case was under 
 consideration, as has been stated by the gentleman from Kentucky, [Mr. 
 Beck, | I, together with most other gentlemen on this side of the H,ouse, 
 voted for the resolution then reported in favor of McGarrahan. I did it, as 
 other gentlemen did, without investigation, following the recommendation 
 and action of the committee at that time, of which I was not a member. It 
 is the practice of members upon all questions of this kind, involving labo¬ 
 rious and intricate examinations of law and facts, to follow the recommen¬ 
 dations and decisions of the regularly accredited organs of the House. Ne¬ 
 cessity oftentimes compels us so to act for lack of time or strength to make 
 individual inquiries ; but when it came to be a part of my duty to investi¬ 
 gate the case judicially as a member of the committee in this Congress, I 
 proceeded to divest myself of any opinion which during the last Congress I 
 might have formed or expressed upon it, and to decide it for myself and 
 upon my responsibility after the most laborious and. painful examina¬ 
 tion, as a question for the most conscientious, impartial, and exact judicial 
 determination. And it is in pursuance of the conclusion reached by me after 
 that examination that I stand here to-day to support the report and the re¬ 
 commendations now made by the majority of the committee. This contro¬ 
 versy is in many respects very extraordinary, and it is well calculated to 
 confuse and distract any mind that will not impose upon itself the labor of a 
 careful and full examination ; but when this is done it becomes clear, and 
 resolvable into a few questions not difficult to decide. 
 
2 
 
 T hope, Mr. Speaker, that this honorable House will hear me while I 
 give, briefly as I must, the reasons which have controlled me in arriving at 
 my decision, and in the vote which I shall now give against the claim of* 
 McGarrahan. I say, Mr. Speaker, against the claim of McGfarrahan. [ flo 
 not mean to admit that McGarrahan has any claim here in his own right. Gen¬ 
 tlemen have tried to impose upon this House a common dodge, known in courts 
 of justice and before juries as the “ sympathy dodge,” in behalf of McGarra¬ 
 han. I desire at the outset to disabuse the mind of the House as to that, 
 and to show that McGarralian’s interest in this claim now is that of a mere 
 figure-head, of a mere agent, instrument, and tool in the hands of other 
 parties, who stand behind him and fill his hands and his pockets with 
 money that he may come here and live year after year and in their behalf 
 prosecute this rotten claim, having in it himself the most inconsiderable 
 interest. At his back stands a powerful combination of adventure!s and 
 speculators, who have been duly incorporated. 
 
 Tracing the various conveyances in the history of this Panoche Grande 
 claim, I find that December 22 , 1857, was the date of Gomez’s deed to 
 McGarrahan for an undivided one-lialf of Panoche Grande. And remem¬ 
 ber that that was before there was any decision in his favor by any tribunal, 
 good or bad, high or low, in the country. At the time of his purchase 
 Pacificus Old claimed to be the owner of the other half of the land in 
 question, and to hold it by an unrecorded and secret and dishonest deed 
 from Gomez. Neither Ord nor McGarrahan was ever in possession of an 
 acre of the land, and both bought with their eyes open, with knowledge of 
 the rottenness of the claim, and with intent and purpose thereafter to make 
 it good by hook or crook, by fair means or foul. 
 
 Here, diverging for the moment somewhat from the line of my argument, 
 I may as well state the fact that in Gomez’s deed to McGarrahan it was ex¬ 
 pressly declared and recited that one half of the land or claim had been 
 before that time sold to Pacificus Ord, under a contract between Gomez and 
 Ord, Ord being at the time Gomez’s attorney in the prosecution of the claim 
 before the Mexican commission. And Ord is the faithless and dishonest 
 United States attorney out of whose rascality and complicity in fraud all 
 this trouble has arisen. He is the man by reason of whose corrupt betrayal 
 of the Government Gomez or McGarrahan was enabled to obtain a mere 
 foothold on which to erect this superstructure of villainy. 
 
 Now, how does McGarrahan stand here? Does he come before this tri¬ 
 bunal with clean hands ? Does he come here as an innocent purchaser ? 
 Is he entitled to protection in this House or in any court of the country 
 upon the ground that he is an innocent purchaser, without notice of fraud 
 and for a valuable consideration ? Why, sir, it is well understood by all 
 lawyers that the law imputes to any subsequent purchaser a knowledge of 
 all facts relating to the same land, appearing at the time of his purchase, 
 upon the muniments of title which it was necessary for him to inspect in 
 order to ascertain the sufficiency of such title. 
 
 Judged by this rule of law McGarrahan bought nothing. He knew there 
 was no possession in Gomez. He knew Gomez had no warrant, no patent, 
 no legal title. He knew the Government was the owner of this land under 
 the treaty of Guadalupe Hidalgo. It was only claimed by Gomez. The 
 latter was therefore attempting to sell a mere inchoate and undecided claim, 
 and the law does not look with favor on any such sales. It, too, was made 
 
3 
 
 
 pending litigation, and is therefore denounced by the law as litigious, 
 champertous, immoral, and against public policy. The civil law forbids a 
 thing which is litigious to be alienated. McGarrahan, therefore, is in every 
 view chargeable with notice, he bought for better or for worse, purchased 
 only a chance, a game partly played, and at once proceeded, with the faith¬ 
 less and corrupt official Ord, to play his little game out against the people of 
 the United States. He does not come into court with clean hands. It 
 is to me matter of profound surprise that in the last Congress these most 
 important and material facts were not brought to the knowledge of the 
 House. 
 
 They not only cast suspicion and reproach upon his entire case, but sub¬ 
 ject it to all equities acquired before or after his pretended purchase, and 
 leave him under the ban and condemnation of the law, which says that 
 contracts of that kind are immoral—they cannot be sustained by courts of 
 justice ; and this one, therefore, ought not to be sustained here. 
 
 Now, then, on the 29th day of May, 1862, Pacificus Ord appointed Mc¬ 
 Garrahan his true and lawful attorney, to sell, without warranty, all his 
 right, title, and interest in the claim to eight twenty-fourths of this Panoche 
 Grande grant. But Ord at that time held twelve twenty-fourths, and there¬ 
 fore he reserved from this sale one-sixtli of the entire title to this land ; and 
 that he has never parted with, so far as this record shows. 
 
 Now, what did McGarrahan do under this power from Pacilicus Ord as to 
 the eight twenty-fourths of this title and as to his own title to one-half? 
 In pursuance of the power given him, McGarrahan, on the 17th of June, in 
 the same year, conveyed, without warranty, eight twenty-fourths of the 
 alleged grant to “ the Panoche Grande Quicksilver Mining Company, a 
 corporation duly organized under the laws of the State of New York,” in 
 consideration of the sum of one dollar. On the 3d day of February, 1865, 
 McGarrahan conveyed the whole tract, as containing four square leagues, 
 to the same corporation, in the city of New York, in consideration of the 
 sum of $10,000, and again without warranty, showing all along that 
 this thing was a mere speculative claim; that it was a mere kite that these 
 men are flying in the face of the country, the courts of justice, and of Con¬ 
 gress. 
 
 Passing over some intervening titles, which are unnecessary to be men¬ 
 tioned here, I remark again that the Panoche Grande Quicksilver Mining 
 Company of the city of New York conveyed back all of this property, by 
 a deed bearing date November 1 , 1866, to McGarrahan, upon the consider¬ 
 ation of one dollar without warranty. But why did they convey it back to 
 McGarrahan ? What had intervened before the Panoche Grande Quick¬ 
 silver Mining Company reconveyed it to McGarrahan? Why, this: the 
 Supreme Court of the United States, in two solemn decisions, had adjudged 
 that there was no merit in this claim of McGarrahan ; that he had no title 
 whatever, and therefore all that he had conveyed to the Panoche Grande 
 Quicksilver Mining Company in New York was worthless to them ; and 
 then they discovered that they must come here and organize this raid against 
 the Congress of the United States ; and they came here disguised in the 
 person of McGarrahan, this poor, solitary, undefended Irishman. They 
 took good care to send him here to influence this House with his pockets 
 full of money, furnished him by the Panoche Grande Quicksilver Mining- 
 Company of New York, to enable him to employ counsel to advocate his 
 
4 
 
 claims, not only before the Congress of the United States, but before the 
 supreme court of this District, in an unauthorized and indecent attempt to 
 dictate to the Department of the Interior what it should do to promote the 
 interests cf that New York corporation. 
 
 But before that reconveyance by the corporation to McGarrahan in 1866 
 and since, the same corporation issued capital stock, based upon its pre¬ 
 tended title to the rancho, to the amount of ten or eleven million dollars. 
 That stock has been liberally used and distributed by the corporation and 
 McGarrahan, their agent, to advance the interests of both. These facts 
 clearly mark this deed back to McGarrahan as a mere trick, device, blind, 
 to mislead the House and country, and enable McGarrahan the more 
 effectively to appeal to the sympathies of gentlemen. 
 
 But another very significant fact in this connection is, that after this pre¬ 
 tended reconveyance to McGarrahan, the Panoche Grande Quicksilver Mining 
 Company issued stock in large amounts, and I here present an original bond 
 of that company, and incorporate it, as follows : 
 
 Incorporated under the Laws of the State of New York. 
 
 [No. 104.] [50 Shares.] 
 
 Panoche Guande Quicksilver Mining Company of California. 
 
 Capital, Ten Million Dollars, in Shares of $100 each. 
 
 This is to certify that William McGarrahan is entitled to Fifty Shares in the capital 
 stock of the Panoche Grande Quicksilver Mining Company, transferable in person or by 
 attorney, on the books of said company at its office in the city of New York, on sur¬ 
 render of this certificate. 
 
 Witness the seal of the company, and the signatures of the president and secretary, 
 this 21st day of May, 1868. 
 
 Fred. Franck, Secretary. B. 0 ! CONNOR, President. 
 
 For value received, I hereby assign and transfer unto--shares of the 
 
 within stock, and authorize-to transfer the same on the books of the com¬ 
 
 pany on surrender of this certificate. 
 
 Dated this- day of -, 18— 
 
 Now, Mr. Speaker, before I go further, [ want to refer to a few things 
 said by my friend from Wisconsin, [Mr. Eldridge.] He, as well as my 
 friend from Kentucky, [Mr. Beck,] told you that this was not a controversy 
 between McGarrahan aud the United States, but that it was a contro¬ 
 versy between Mr. McGarrahan and the New Idria Mining Company. 
 
 Mr. ELDRIDGE. And that is so. 
 
 Mr. KERR. I say that is not true. I say it is a controversy between 
 McGarrahan and the Panoche Grande Quicksilver Mining Company of 
 New York, on the one side, and the United States on the other. Isay, 
 what the gentlemen all know, that the claim of McGarrahan and that com¬ 
 pany in New York in this case covers over seventeen thousand acres of 
 land, while the New Idria Mining Company’s claim covers but four hun¬ 
 dred and eighty acres of land. I say that the claim of McGarrahan does not 
 touch the land claimed by the New Idria Mining Company. It does not 
 reach to it at all; and the survey which was made to reach to and embrace 
 these mines was a fraudulent, dishonest, and corrupt survey, procured under 
 a dishonest law of Congress, made by a dishonest surveyor, made in the 
 interest and by the manipulation and for the money of McGarrahan. 
 
 Tli ;• fore, ir is no issue here between McGarrahan and the New Idria 
 Mining Company, except in a purely incidental and collateral way; and 
 gentlemen untruthfully state the nature and substance of this controversy 
 
5 
 
 when they so represent it; and their statements are calculated, if not in¬ 
 tended, to mislead the House. If this claim of McGarrahan fail, then the 
 Government and the people own the seventeen thou-and live hundred acres 
 of land which he claims, and it will then, like other public domain, become 
 subject to entry and pre-emption under the law, and the Xew Idria Mining 
 Company, as well as any citizen of the country, may take its chance under 
 the law to acquire a title to any portion of it. 
 
 Mr. ELDRIDGE, Will the gentleman yield for a question] 
 
 Mr. KERR. For a mere question, yes. 
 
 Mr. ELDRIDGE. I wish the gentleman from Indiaua [Mr. Kf.rr] 
 would state whether there have not been every day and every hour of the 
 session of the committee of this House one or more counsel for the Xew 
 Idria Mining Company present, and whether they have not examined every 
 witness with the exception of one or two in the latter part of the case, and 
 whether anybody has appeared during that time on behalf of the United 
 States. 
 
 Mr. KERR. My answer to the inquiries of the gentleman is that there 
 have appeared before our committee counsel for the Xew Idria Mining 
 Company. They appeared there as much in behalf of the Government as 
 of themselves; and because this fraudulent and dishonest survey, procured 
 by McGarrahau and this Panoche Grande Quicksilver Mining Company of 
 Xew York, was made to extend over and embrace their quicksilver mines, 
 dishonestly and wrongfully; and against that extension of the lines of that 
 survey they desired protection at the hands of the House, and are entitled 
 to it. And in defence, therefore, of their claim, they appeared before us, 
 and did try to resist this fraudulent claim. They had a right to do it, and in 
 doing so, they did it as much in behalf of the United States as in their own 
 behalf. Why ] Gentlemen should remember that the United States is no 
 more a defender of the Xew Idria Mining Company here than they are the 
 defender of every pre-emptor of the public lands throughout the length and 
 breadth of this country. It is the duty of the Government of the United 
 States to protect and maintain the public domain, in order that the honest 
 citizens of this country, whether corporations or individuals, may have fair, 
 just, and equal opportunity to go upon those lands, locate their several 
 claims, and prosecute and procure their titles before the proper departments 
 of the Government That is all the Xew Idria Mining Company asks. 
 
 We are not investigating the claim of the Xew Idria Mining Company. 
 It is only incidentally and collaterally involved in this investigation at all. 
 If we reject the claim of McGarrahan, what do we do ? We remit this 
 whole controversy to the tribunal where, under the laws of the United 
 States, it belongs, to wit, the Secretary of the Interior and the Commissioner 
 of the General Land Office, whose duty it is, under the law, to pass upon 
 all claims of this kind, and issue patents to whom they belong. That is the 
 true position in this case. 
 
 Mr. Speaker, here I want in a few words to refer again to that dishonest 
 survey procured by McGarrahan and his corporation. In the conveyance 
 back from the Panoche Grande Quicksilver Mining Company to William 
 McGarrahan, bearing date on the 1st day of Xovember, 1S66, in con¬ 
 sideration of the sum of one dollar, they conveyed “ all that certain tract or 
 rancho lying and being in the counties of Monterey and Fresno, State of 
 California, and known as the Panoche Grande rancho, being the same lands 
 
6 
 
 for which a decree of confirmation has been entered in favor of Vicente P. 
 Gomez, in the district court of the United States for the southern district of 
 California.” The boundaries of the tract are then given by name, and cor- 
 respond exactly with the boundaries given by Gomez in his original petition 
 for the grant to the Mexican Governor, wherein the area desired and em¬ 
 braced within said boundaries is stated in the petition to be “ three square 
 leagues.” 
 
 This is the conveyance under which McGarrahan now claims, and it will 
 be perceived by reference to the description of the boundaries, and the area 
 embraced therein, that it is essentially different from the tract which the 
 House bill provides he may enter. The latter tract is established by the 
 Dyer survey, made four years prior to the date of this conveyance back to 
 McGarrahan, and yet he chose then to take the laud by the description 
 given in the deed to him from Gomez rather than by the enlarged boundaries 
 fixed by the survey of 1S62, which gives him an additional square league, 
 and describe his tract as follows : 
 
 “ North by Julian Ursua ; westerly by the lands of Francisco Arias ; east by the Tulare 
 vallev, and south by the Santa Anna river.” 
 
 The southern boundary in the original petition of Gomez to the Mexican 
 Governor is called the serrania, (mountain range,) and in the deed of Gomez 
 to McGarrahan of December 22, 1857, it is called “ the hills.” In the Dyer 
 survey, under which he now claims, it is neither “the mountain range” nor 
 “ the hills,” but “ the Santa Anna river,” and here the fraud of the survey 
 becomes most apparent, for McGarrahan and his surveyor, in order to em¬ 
 brace the mineral lands adjacent to “ his agricultural tract,” leaps over “the 
 mountain range” or “ the hills,” and fixes his southern boundary on “ the 
 Santa Anna river.” In other words, to enable him and the Xew York 
 corporation to grab the runes on the mountains, he deserts his original 
 claim as made by Gomez, for agricultural lands in the valley, and attempts 
 to stretch out his boundaries some seventeen miles up the mountain side, and 
 thus embrace the property, the four hundred and eighty acres, claimed by 
 the Xew ldria Mining Company. 
 
 There was but a single survey ever made under the law of June 2, 1S62, 
 under which this survey was made by direction of McGarrahan himself, 
 and in his personal presence. That law declared that surveys made under 
 it should “ only be prima facie evidence of the true location of the grant.” 
 The proper officer forbade anymore work to be done under that law. The 
 testimony in this case clearly shows that this survey was not and within 
 the time in which it was claimed to have been made, could not have been 
 fairly and honestly made, and therefore it ought not to be received as proof 
 of the true location of the Panoche Grande grant, even if McGarrahan were 
 the true owner thereof. There was manifest and corrupt complicity be¬ 
 tween the surveyor and McGarrahan. This felonious attempt of the Pa¬ 
 noche Grande Quicksilver Mining Company of Xew York, by their supple 
 a^-ent, McGarrahan, to extend their pretended boundaries up the mountain 
 and seize the mines in the possession of the Xew ldria Company, was an 
 after-thought, suggested to McGarrahan and Ord by the discovery of the 
 mines, in 1852, by the grantors of the latter company. 
 
 The gentleman on the other side persisted in repeating the assertion that 
 the Xew ldria mines were discovered in 1858, after McGarrahan had pur¬ 
 chased from Gomez, and had become a partner with Ord, while the facts 
 
7 
 
 in the sworn proof are, that the New Idria mines were discovered early in 
 1852, more than a year before the map and petition were offered before the 
 land commission, which discovery most probably suggested the manu¬ 
 facturing of a grant that should be made to cover the mine, hence all the 
 subsequent frauds in the history of this notorious Panoche-Grande-Quick- 
 silver-Mining-Company-McGarrahan case. 
 
 One word now in reference to Judge Black in connection with this case. 
 By way of throwing mud, by way of soiling the reputation of everybody 
 in connection with the case who opposes this claim, it has been broadly in¬ 
 sinuated that Judge Black has been corrupt and dishonest in his connection 
 with it. I say to this House that after having Judge Black before the 
 committee, and all the other testimony made in this case, I look upon it 
 now as not only unjust but dishonest to impute personal or official cor¬ 
 ruption to Jeremiah 8. Black in connection with this case. Notwithstand¬ 
 ing the wrangling criminations and insinuations of counsel before the com¬ 
 mittee, there is nothing in the record which, fairly and impartially weighed, 
 attaches any wrong, official impropriety, or personal dishonesty to Judge 
 Black. On the contrary, the whole case shows that he was only solicitous 
 to protect the Government and defeat a corrupt and baseless claim. 
 
 Now, I want to answer for him out of his own mouth. I read from what 
 he has stated under oath in reference to this case. Speaking of the manner 
 in which these cases came before Congress, he says : 
 
 “ It was my duty to oppose a false and fradulent claim any how. In Dine of these 
 cases out of ten the land in controversy was occupied by persons who had bought, or 
 expected to buy,* the whole or part of it from the United States. In some cases cities 
 and large towns, in others great numbers of agricultural people, were in danger of having 
 the fruits of their labor and money swept away by forged Mexican grants. They had 
 no protection for their rights except what they could get from the courts. The confirma¬ 
 tion of a Mexican title was an estoppel not only upon the United States, but upon all 
 persons claiming under them. 
 
 “In such a case there will be no question raised about any other title than that of 
 which confirmation was sought. I expressed officially what I thought and still think 
 was the duty of my effice, in a letter on the Castelle case, addressed to the President, 
 March 28, 1859 : 1 Yield everything that law and justice demand, sift doubtful claims to 
 the bottom, and show no quarter to those which appear to be corrupt.’ I believed this 
 one to be corrupt, and I resisted it accordingly. But I did it fairly. I alleged no fact 
 and I asserted no legal-proposition which the claimant had not a full opportunity to con¬ 
 trovert; and I think 1 never made a point which the judges of the Supreme Court did 
 not unanimously sustain. Whosoever says that I received anything for this except my 
 salary, or that my official action was influenced by any motive except a sense of pure 
 duty, speaks falsely. I went out of office with bands as clean as they were empty. 
 
 “ Mr. Stanton was my successor, and had been my assistant. To my certain knowl¬ 
 edge he took exactlv the same view of this case that I did. 
 
 “ After March, 1861, I had no concern in the business. Mr. Bates employed Mr. Stan¬ 
 ton as special counsel in this and other cases. He did not employ me; that is to sav, 
 not in this ease, but he did in some others, where Mr. Stanton had been retained against 
 the United States. 1 had no connection with it, and took no part in it until two vears 
 or upward after I went out of office. Then I was asked by Mr. Shepherd, of Yew 
 York, and Mr. Latham, Senator from California, and subsequently by Mr. Goold, if I 
 would consent to appear for the United States with the Attorney General, and aid him 
 in opposing the claim of Gomez. I suppose nobody will deny that it was perfectly right 
 and proper for me take the case at that time and under those circumstances. I was as 
 free as any other member of the profession. The fact that I had been Attorney General 
 certainly did not disfranchise me. I never heard a doubt of the professional or moral 
 propriety expressed by any human being. I have done the like in many other cases. So 
 have all persons similarly situated. The then Attorney General, Mr. Bates, gladly ac¬ 
 cepted the aid which I was employed to render in the case. It shared the labor and respon¬ 
 sibility, and it saved him the necessity of employing special counsel and paying them out 
 
8 
 
 of the public funds ; for Mr. Stanton had by this time become Secretary of War, and given 
 up the practice.” 
 
 I say, therefore, that these flings against the distinguished ex-Attorney 
 General are at once uncalled for and unjust, and the gentleman from Ken¬ 
 tucky [Mr. Beck j relieves his charges of but little of their poison when he 
 compliments the great ability of Mr. Black at the expense of his personal 
 and official integrity. 
 
 Again, in speaking of his connexion with this case in his efforts to defeat 
 this fraud upon the Government in the Supreme Court, he says: 
 
 “ I notified the court of the evidence I had of these facts. About the truth of the facts 
 I had no doubt, because Mr. Stanton was perfectly incapable of making a false report to 
 me. His judgment upon cases of this kind was as good as that of any other man living. 
 When I got the evideuce, whatever it was, I considered it as simply confirming his state¬ 
 ments and confirming my previous belief.” 
 
 The gentleman from Wisconsin has undertaken further to say—and I was 
 exceedingly surprised to hear it—that the district court of California, after 
 a solemn adjudication of this case, decided it in favor of McGarrahan, or 
 Gomez, which is the same thing. I say to him, and I say to this House 
 and the country, that the United States district court of California never 
 examined this case, never heard one particle of testimony, never even looked 
 into the record, never investigated it at all; but in all its action it was con¬ 
 trolled by the dishonest, selfish, corrupt suggestion of Pacificus Ord, whose 
 complicity in the fraud is clear. 
 
 Mr. ELDRIDGE. The gentleman from Indiana is quite mistaken in 
 what he says in regard to my statement. I stated most distinctly and em¬ 
 phatically that the only tribunal that had before it the merits of the case was 
 the land commission ; that they alone examined the testimony ; that they 
 alone had the proofs before them; that no other court or tribunal ever had 
 the merits of the case before them for examination. 
 
 Mr. KERR. Mr. Speaker, I say in reply to that remark that the gen¬ 
 tleman is in this as much in error as in anything else he has said. I say 
 that the Supreme Court of the United States had before it precisely the 
 same record, the same evidence, the same facts which were before the com¬ 
 mission organized under the treaty of Guadalupe Hidalgo. It could not be 
 otherwise. The imperative requirements of the law settled that. That 
 commission was required to put upon its record everything, whether of 
 pleading or evidence, which was presented to it in each case. 
 
 Mr. ELDRIDGE. I hope the gentleman does not intend to misrepre¬ 
 sent me. I stated that the record went up to the district court and the 
 Supreme Court; but that those courts only examined and were only 
 authorized to examine the record made up by the board of commissioners; 
 that the latter was the only tribunal that adjudicated upon the facts. 
 
 Mr. KERR. Mr. Speaker, the gentleman’s assumption now is as base¬ 
 less as any other that he has made. I say that in this case and in all 
 these cases (and in what I say I am sustained by the adjudicated cases in 
 the Supreme Court of the United States) the jurisdiction of that court was 
 as complete and perfect over this case as over any other case; that they 
 had before them not only what appeared upon the mere technical record 
 
 furnished by the commission, but that in that record, in pursuance of the 
 very law under which the commission was organized, there was embodied 
 every particle of evidence upon which the commission had acted, so that 
 
9 
 
 when the record went up to the Supreme Court it presented the case pre¬ 
 cisely as it had been presented before the commission in its facts, testimony, 
 proofs, and pleadings. There was therefore no reason in the world why 
 the Supreme Court, on the hearing of the appeal could not act just as 
 wisely, judiciously, and advisedly as the commission or the district court 
 or any other tribunal on earth. 
 
 In this position I am sustained by the express and solemn decision of the 
 Supreme Court, made on a review of all this evidence and record, and I hope 
 gentlemen will give me their attention while I read a brief extract from that 
 decision. It is said that this case was never considered on its merits else¬ 
 where than before the commission I say it was considered as much upon 
 its merits in the Supreme Court as it was before that commission ; that 
 under the law, and with the record before them, the information and the 
 power of the Supreme Court were as full, ample, and perfect as those of the 
 commission. And so the court in 1865 says : 
 
 “ Regarding the case as regularly before the court, it becomes necessary to examine the 
 merits of the claim. Some suspicion attaches the claim, because it is made for four 
 leagues of land, whereas the only document introduced in support of it, which is of the 
 least probative force, represents the original claimant as having asked for but three 
 leagues. Document referred to purports to be the petition of the claimant to the Gov¬ 
 ernor, and there is appended to it the usual informe ; but there is no concession or grant, 
 nor is there any satisfactory evidence that any title of any kind was ever issued by the 
 Governor to the claimant. Be states in his petition to the land commissioners that he 
 obtained the map in the record from the proper officers of the department; but the 
 alleged fact is not satisfactorily proved. Four witnesses were examined by the claim¬ 
 ants before the land commissioners, but only one of the number pretended that he had 
 ever seen the grant, and his statements are quite too indefinite to be received as satis¬ 
 factory proof. 
 
 “ Instead of proving possession under the grant, it is satisfactorily shown that he 
 never occupied it at all, and it is doubtful if he ever saw the premises during the Mexi¬ 
 can rule. Land commissioners rejected the claim, but before it came up for hearing in 
 the district court his attorney had been appointed district attorney of the United States ; 
 and the proofs show that he conveyed two leagues of the land to the district attorney. 
 Circumstances of the confirmation of the claim in the district court are fullv stated in 
 
 V 
 
 the opinion of this court given when the mandate was revoked and recalled. Comment 
 upon those circumstances is unnecessary, except to say that the confirmation was fraudulently 
 obtained. 
 
 “Although the decree was fraudulently obtained, still, inasmuch as it is correct in 
 form, it is sufficient to sustain the appeal for the purpose of correcling the error. Party 
 who procured it cannot be allowed to object to its validity as a means of perpetuating 
 the fraud, especially as he did not appeal from the decree.” (3 Wallace, p. 76G.) 
 
 It is not needful further to refer to the language of the court than to show 
 that the confirmation was fraudulently obtained. Yet the gentleman says 
 that the Supreme Court never passed that kind of condemnation on the of¬ 
 ficial fraud and rascality of Pacificus Ord. The court, in the twenty-third 
 of Howard, in the first of Wallace, and third of Wallace, say that by reason 
 of the conduct of that officer, and the deception thus practised on the dis¬ 
 trict court of California, all these proceedings were fraudulent aud rotten, 
 and therefore ought to be set aside. Hence the power of the court is inter¬ 
 posed to defeat the fraud. 
 
 But we are told that the court has no jurisdiction, and I am again unable 
 to agree with my friend from Wisconsin, good and excellent a lawyer as he 
 is, when he says that on the subject of jurisdiction the decision of the Su¬ 
 preme Court is not final; that it amounts to nothing, and that it may be 
 set aside collaterally or in any other way. It is a sufficient answer to that 
 to say that the Supreme Court of the United States is a court beyond 
 
10 
 
 which, in the good providence of God in this country, there is no appeal. 
 Its decision is absolutely final, and no court in the country, unless a court 
 organized in the spirit of rebellion and treason, can ignore and set aside the 
 judgments of that court. Its decision in this case was not coram non judice, 
 but in all respects legal, regular, and conclusive. 
 
 Now, Mr. Speaker, I beg the attention of gentlemen while I give in some 
 detail a brief historical statement of the facts connected with this controversy 
 in the courts. The claim of Gomez, the grantor of McGarrahan, having 
 been adjudged and conceded to have been unfounded and fraudulent, the 
 question is whether the succession of McGarrahan thereto has conferred 
 upon him an equity which this House ought to recognize and support, 
 March 6, 1855, the land commission rejected the Gomez claim. Thereupon 
 an appeal was taken by claimant’s attorney, Pacificus Ord, to the district 
 court for the northern district of California, and was subsequently trans¬ 
 ferred to the district court for the southern district, at the instance of Ord, 
 who was shortly afterwards appointed attorney of the United States for said 
 southern district. 
 
 Why did he take this case to the southern district court ? Because in 
 that court he was attorney of the United States, and could maintain his own 
 title and the title of Gomez in a court where he had power. The transfer 
 was made on the application of Ord, the owner of half this grant, which he 
 was pretending to protect on behalf of the nation. He and his co-conspira¬ 
 tor, McGarrahan, desired the case in a tribunal where they could abuse the 
 confidence of the court to procure a confirmation. 
 
 On the 24th of November, 1856, while district attorney, Ord received 
 from Gomez, for the nominal consideration of one dollar, a deed of convey¬ 
 ance for an undivided half of the land in controversy, namely, the Panoche 
 Grande rancho, and this pending the appeal in the district court. 
 
 On the 5th of June, 1856, Ord procured a brother lawyer, a man named 
 Hartman, to move the court to reverse the decision of the land commission 
 and confirm the grant, stating in open court, in his official capacity, that it 
 was a case in which there was no dispute. With what grace could McGar¬ 
 rahan, in the person of his co-conspirator against the rights of the United 
 States and all of its people—with what grace could McGarrahan, in the 
 person of this Pacificus Ord, come up before that United States court and 
 say that it was a case in which there was no dispute ? Yet this was stated 
 by Ord, and that the United States had no objection to the confirmation of 
 the grant; and thereupon an order of confirmation was made, but no decree 
 entered. At this time Mr. Ord was the owner of an undivided half of the 
 land. I want gentlemen to remember this all the time as most vital and 
 material to the just determination of this case. Before a decree of confirma¬ 
 tion was entered, to wit, December 22, 1857, McGarrahan, in considera¬ 
 tion of Si, 100, received from Gomez a deed of conveyance for the land in 
 controversy, which said deed contains the following reservation : 
 
 ‘‘Subject, however, to an agreement heretofore made by the party of the first part 
 (Gomez) to and with Pacificus Ord, Esq., by which the said party of the first part is to 
 convey to said Ord an undivided interest in said rancho or tract of land, not exceeding 
 the one undivided half thereof.” 
 
 It is manifest that McGarrahan also had notice of Ord’s unlawful con¬ 
 nection with the case and of his interest in the land by the express reserva¬ 
 tion just quoted from his very deed. McGarrahan was put upon inquiry; 
 
li 
 
 the act of his co-tenant, Orel, in joint behalf, was his act. He was, therefore, 
 particeps criminis in Orel’s rascality, anel has no equity. At the elate of 
 this conveyance no decree of confirmation had been entered by the court. 
 An order of confirmation had been made, it is true; but the first decree in 
 the case was filed and entered January 1, 1858, as of June 5, 1857, con¬ 
 firming the land as “ three square leagues.” Subsequently, to wit, on the 
 Sth of February, 1858, another decree was filed and entered as of June 5th, 
 1857, confirming the laud as “ four square leagues.” This decree was 
 entered at the instance and at the request of Pacificus Ord, whose heart 
 and whose hands are stained all over with corruption. 
 
 From this it appears conclusively that the confirmation by decree of the 
 district court of the alleged grant was not actually made until the Sth of 
 February, 1S58, as was decided by the Supreme Court (1 Wallace’s Re¬ 
 ports, 699, and 3 Wallace’s Reports, page 763, in the case of United States 
 vs. Gomez) subsequent to the date of the conveyance from Gomez to Mc- 
 Garrahan, and both the decrees of January and February, 1858, were filed 
 by Ord ; and hence it is but fair to presume that McGarrahan himself was 
 privy to the transactions of that person respecting their common property, 
 especially after the date of his conveyance to McGarrahan, to wit, Decem¬ 
 ber 22, 1857 ; and as Mr. Ord appeared as the joint tenant of Gomez, so 
 he did as the joint tenant of his successor, McGarrahan ; and in this respect 
 the latter stands parliceps criminis in the prosecution of the original fraudu¬ 
 lent, claim, and the means resorted to by himself and his co-tenant, Ord, 
 to secure final confirmation of the fraudulent decree of February 8, 1 858, 
 appear by reference to the case of the United States vs. Gomez, (23 How¬ 
 ard, page 33S,) which I wish I had time to read. 
 
 In that case it is fully shown that McGarrahan caused a false transcript 
 from the court below allowing an appeal in the case to the Supreme Court 
 of the United States, when in point of fact no appeal had at that time been 
 allowed or taken. And so also the Supreme Court in that case decided. 
 The object of this was to procure the docketing and dismissal of the cause 
 by that court for want of prosecution of the appeal, which was done, and 
 fraudulently done; but at the next term, the facts having been brought to 
 the attention of the court, the case, on motion of the Attorney General, 
 was rejected, and the appeal dismissed by reason of the fraud to which I 
 have referred. 
 
 In further verification of these statements, I will insert an extract from 
 the judgment of the Supreme Court in 23 How., p. 339, rendered in 1863. 
 The court say that the evidence before them establishes— 
 
 “ That Mr. Ord became the purchaser of half the land in controversy from Gomez, 
 the claimant, when he was the district attorney of the United States ; that whilst he was 
 district attorney he prepared in his own hand the paper signed by S. 0. Crosby, for the 
 removal of the cause from the board of land commissioners to the district court; that 
 Mr. Ord did not officially, as district attorney, represent the United States in the case 
 in the district court, in any one particular, but allowed it to be done by others who were in¬ 
 terested in establishing the claim of Gomez , to zohoni he gave his official confidence , and who 
 are shown by the record not to have been the retained attorneys of Gomez ; that he 'permitted a 
 judgment to be taken against the United States without argument , or the production of proof to 
 establish the validity of the claimant 1 s right to the land , by saying to the court, in his official 
 character , that the United States had no objection to the confirmation of the claim. And it is 
 established by the record itself that no appeal has been given to the United States by the 
 court below 
 
 This is from the unanimous judgment of the court. 
 
12 
 
 The next judicial step in the case was the setting aside of the fraudulent 
 decree of confirmation by Judge Ogier, of the district court for the southern 
 district of California, on the 21st day of March, 1861, in consequence of the 
 discovery of the fraud practised upon the court by Ord in procuring it, and 
 that fraud is set forth and exposed in first and third Wallace, in the same 
 case to which I have already referred. . Mr. Speaker, the annulling order of 
 Judge Ogier came up for review before Judge Haight, his successor, Judge 
 Ogier having died meanwhile, on the 4th of August, 1862. McGarrahan’s 
 counsel moved to rescind it, which Judge Haight reluctantly did, because, 
 as held by him, the court had no jurisdiction in the premises when the order 
 of March 21, 1861, was made. 
 
 I wish I had time to read from the reasons assigned by Judge Haight for 
 rescinding the previous order of his predecessor. He says in his order 
 rescinding it that he was not surprised at the manifestation of a feeling of 
 disapprobation and abhorrence by Judge Ogier when he discovered the fraud 
 which had been practised upon him, and by reason of which he set aside the 
 previous order of his own court and ordered a trial de novo, so that for the 
 first time, for once at least, before a final order is made in his court in the 
 case, he might judicially hear and examine the case, which hitherto by rea¬ 
 son of the fraud of Ord he had been prevented from doing. From the de¬ 
 cision of Judge Haight, setting aside Ogier’s annulling order, and restoring 
 the fraudulent decree of February 8, 1858, the United States appealed to 
 the Supreme Court of the United States, and here the record shows that 
 McGarrahan resorted to almost every conceivable trick and fraud and cor¬ 
 ruption to prevent the transmission of the case to the Supreme Court, and 
 was after a long and most remarkable struggle defeated. 
 
 The Supreme Court, in 1865, in another unanimous judgment against 
 this iniquitous conspiracy, reported in 3 Wallace, p. 765, says : 
 
 “ Six times the demand was made of the clerk for the transcript, and the request, as 
 often as it was made, was refused. Such demand was made by the special counsel of the 
 United States, and by the district attorney, and by the authority and direction of the 
 Attorney General. Throughout, the clerk refused to furnish the transcript.” 
 
 The transcript was procured and the case regularly docketed in the 
 Supreme Court. McGarrahan’s counsel then sought to have the appeal 
 dismissed because it had not, as alleged, been taken within five years from 
 the rendition of the decree of confirmation by the district court. That 
 motion was denied by the Supreme Court, and the opinion of that court 
 adverse to the motion of McGarrahan’s counsel is set forth in 1 Wallace, p. 
 702, and in that opinion of the Supreme Court by Justice Clifford, which is 
 beyond all question sound in law, the Supreme Court decided that every 
 ground of the motion was untenable; that the case should not be dismissed ; 
 that the jurisdiction of the Supreme Court over the appeal was complete 
 and perfect, and that if these gentlemen representing McGarrahan or the 
 Panoche Grande Quicksilver Mining Company of New York, or any other 
 rotten corporation anywhere else in the country, desired to assert any other 
 remedy, they must do it under the rules of the court by suggesting a dimi¬ 
 nution of the record, and going back to California with a certiorari requiring 
 that the record be made perfect. 
 
 Why did they not do that thing 1 ? It was because — and the record and 
 the testimony justifies me in saying it—because the parties and their law¬ 
 yers understood that they had no hope for the salvation of this case except 
 
13 
 
 by forcing their fraudulent proofs down the throat of the Supreme Court 
 and rushing the case through against law and truth. The appeal having 
 been sustained, the case came on for decision on the merits, and the opinion 
 of the court therein will be found in 3 Wallace, which I have already read. 
 
 Now, sir, a word or two in reply to another point suggested by the gen¬ 
 tleman from Wisconsin, as to the question of the jurisdiction of the Supreme 
 Court in the premises. The record shows that an order of confirmation in 
 favor of the McGarrahan grant or Gomez grant was made by the district 
 court of California on the 5th of June, 1857, but no decree was entered 
 until January 7, 1858, and even that was not a final decree, for on the 8th 
 of February following another decree was entered confirming the same 
 lands, with an additional square league, to the same parties. This decree 
 stood unreversed until the 2lst of March, 1S61, when the same judge set it 
 aside, and it remained set aside and annulled till the 4th of August, 1862, 
 when it was reinstated by Judge Haight. From h’s decision the United 
 States appealed, and the appeal was allowed. 
 
 It is true that Judge Haight subsequently, to wit, in December, 1862, set 
 aside his own order ailowiug the appeal; but the case was then beyond his 
 jurisdiction, and the question as to the regularity of the appeal belonged to 
 the appellate tribunal, the Supreme Court of the United States, which, as I 
 have already stated, decided that it had jurisdiction, and decided that the 
 appeal had been properly taken within the time allowed by law. A brief 
 review of the facts, bearing in mind those I have already given with so 
 much particularity, will show that this was true. The order of confirma¬ 
 tion was made on the 5th of June, 1857; the final decree therein was en¬ 
 tered on the 8th of February, 1858, and this was the first record from 
 which a transcript could be made sufficient to explain and support the 
 appeal. 
 
 On this point the same court, in another unanimous opinion in 1863, in 
 1 Wallace, p. 699, says : 
 
 u Plainly there was no decree of ati} r kind in the case until the 7th of January, 1858, 
 and as that was ordered to be amended by substituting another in its stead, the final de¬ 
 cree in the case was that of the 8th of February, 1858. Five years, therefore, had not 
 elapsed after the decree was entered before the appeal was taken ; and consequently the 
 ground assumed in the motion to dismiss cannot be sustained.” 
 
 And from the date of it the United States had bylaw five years in which 
 to appeal, to wit: from February 8, 185S, to February 8, 1863. The appeal 
 was taken on the 4th day of August, 1862. Besides, the law contemplates 
 that the decree from which the appeal may be taken shall be in force during 
 five consecutive years, on any day of which the appeal may be regularly 
 and properly taken. Here there was no time between the 21st of March, 
 1S61, and the 4th of August, 1862, during which time the annulling order 
 of Judge Ogier was in force and effect. 
 
 Now, so far as respects the objection that the true date is the date to 
 which the nunc pro tunc order relates, it is only necessary to observe that 
 under the repeated decisions of the Supreme Court a nunc pro tunc entry is 
 never allowed to work injustice or fraud. Otherwise appellants might often 
 be deprived of their remedy of appeal, and great wrongs be perpetrated 
 upon parties by retroactive orders of courts. Rules of court and laws are 
 not made to facilitate but to defeat and prevent fraud. So with the rules 
 governing in this case. 
 
 Now, having gone over this case in this general and hurried manner, I 
 
14 
 
 want to make two or three remarks more, and then I will close. It is pro¬ 
 posed now by the minority of the Committee on the Judiciary, who in their 
 report concede and admit that McGarrahan has here nothing but a color 
 of title, that this House shall, by its solemn judgment, interpolate, interject, 
 contrary to the practice of the whole world in such cases, into the record of 
 another co-ordinate branch of the Government, a lie. Yes, sir, a lie, in the 
 form of a declaration that a patent had been executed to McGarrahan, when 
 in truth and in fact no patent wals ever executed to him. 
 
 In their report the minority do not pretend that any patent, in the legal 
 sense of the word, was ever executed to McGarrahan; and no such patent 
 ever was issued or executed to him. And the paper which was in part ex¬ 
 ecuted, and which under some circumstances might have become a patent, 
 never was, and they do not pretend that it ever was, delivered to McGarra¬ 
 han or to anybody else. Everybody knows that an undelivered patent is a 
 worthless piece of paper and amounts to nothing. But no patent was exe¬ 
 cuted, even. 
 
 Under a somewhat loose custom in the Land Office, where from fifty thou¬ 
 sand to ninety thousand patents are made up each year, they are written up 
 by the clerks as if finally passed upon and ordered, in the routine practice 
 of the office, and then they await final approval and confirmation. So in 
 this case. But this patent never was finally approved nor on the record 
 ever signed by the recorder of the Land Office, nor even delivered, nor its 
 delivery ever ordered. 
 
 Mr. MAYHAM. Will the gentleman allow me to ask him a question '? 
 Mr. KERR. Yes, sir. 
 
 Mr. MAYHAM. If the Land Office has issued a patent, and entered it 
 upon record, has not the office exhausted its entire power in that regard, and 
 does the patent, under those circumstances, require a formal delivery to make 
 it effective and valid ? 
 
 Mr. KERR. The gentleman assumes a fact which does not exist, that a 
 patent ever was executed in that way. But I say that if such a patent had 
 been in all respects of form fully executed and regularly recorded, yet, as 
 against manifest and outrageous fraud, as in this case, it has not the value of 
 a feather; it is not worth a penny ; it ought not to stand for one moment in 
 the face of a contravening interest. Besides, I say it is not final or conclu¬ 
 sive on the department. Until actual delivery it is under the full and 
 complete and legal control of the department. 
 
 Mr. MAYHAM. One other question. 
 
 Mr. KERR. Very well. 
 
 Mr. MAYHAM. If the Land Office had issued a patent which might 
 be valid and which was valid as to that office, has that office the right, 
 without the intervention or the order of a court, to vacate or mutilate that 
 patent ? 
 
 Mr. KERR. Beyond all question, it has a right to defeat a fraud, to 
 stop the patent, and institute further examination to protect the Govern¬ 
 ment. Beyond all question, the Interior Department, to the exclusion of 
 the world, has jurisdiction under your laws over questions of this kind ; 
 and anybody else, whether the supreme court of the District of Columbia 
 or any other tribunal, that shall attempt to overrule the jurisdiction and 
 discretion of that department of the Government, will attempt a lawless 
 act. The department of the Government to which under the law is given 
 
15 
 
 jurisdiction over all these questions of location, of pre-emption, of title to 
 the public land of the country, is the Interior Department, or the Commis¬ 
 sioner of the General Land Office, and on appeal from the Commissioner, 
 the Secretary of the Interior. After a patent is even fully executed and 
 signed by the President, it may be suspended as to delivery, or recalled 
 for correction, and, if improvidently written out and signed, it may be 
 cancelled. 
 
 Now, if McGarrahau had any patent executed to him, why is it that up to 
 the 8th day of July, 1870, neither he nor any of the astute gentlemen who 
 have talked in behalf of McGarrahan, none of his counsel, none of his able 
 lawyers, ever before discovered that he had any such patent? Why is it 
 that prior to July 8, 1870, all the counsel of McGarrahan and of the Panoche 
 Grande Quicksilver Mining Company of New York, which stands at his 
 back, always conceded that there had been no patent executed ? They never 
 claimed any such thing. 
 
 The patent in question is claimed to have been engrossed and executed 
 fully on March 14, 1863; but R. H. Gillett, of counsel for McGarrahan, on 
 June 23, 1863, in his written argument to Mr. Secretary Usher, said that 
 “ befose the patent was actually signed the Attorney General requested that 
 its issuance might be delayed, which was ordered by the Assistant Secre¬ 
 tary.” And that order was as follows : 
 
 Department of the Interior, 
 Washington, March 13, 1863. 
 
 Sir,—The Attorney General has notified this department that he intends to have the 
 case of the land claim of Vicente P. Gomez, known as the Panoche Grande, brought 
 before the Supreme Court of the United States for review, for the purpose of testing the 
 validity of the grant. 
 
 Under these circumstances you will suspend the execution and delivery of a patent, under 
 the decision of this department of the 4th instant, until further advised in the case by 
 the Secretary. 
 
 1 am, sir, very respectfully, your obedient servant, 
 
 W. T. OTTO, Acting Secretary. 
 
 Commissioner General Land Office. 
 
 My time is so short that I will add but a single remark. The pretence 
 that there ever was an executed patent in this case is negatived by all the 
 evidence before the committee, except the testimony of one man ; and any 
 fair and unprejudiced mind, reading all the testimony, including that of this 
 witness, must come to the conclusion that the testimony of that one man 
 must not be allowed to override and weigh down the testimony of all the 
 others, but, on the contrary, it should be assumed by the House and by the 
 country that the witness who testifies against all the facts on the record, and 
 against all the other witnesses, testifies to what is false, and I believe he does. 
 
 I protest that a more vicious and dangerous act could not be committed 
 by Congress than to attempt, under these circumstances, to tamper with the 
 solemn and repeated adjudication of this case by the Supreme Court. The 
 whole matter is in every just and legal sense res adjudicata. Congress is 
 not a judicial tribunal. It is not fit, qualified, or constituted to perform ju¬ 
 dicial duties. It should promptly and indignantly rebuke every attempt to 
 induce it to interfere with the regular course of justice in this way. To as¬ 
 sume jurisdiction in this case will but invite similar appeals in other rotten 
 and fraudulent claims which have been judicially condemned. In the inter¬ 
 ests and for the safety of all the people, let us stand by the courts. 
 
 Gibson Brothers, Printers, Washington. 
 

 
 
 
 
 *r 
 
 
 
 
 
 l 
 
 
 
 
 
 
 
 t