The United States v. Sutter. executed by the governor, in his presence, at Santa Barbara; and that he believes that the paper presented is a true copy. One of the volunteers testifies that the governor made a speech to the volunteers, in which he said he had granted to Sutter all the lands he had claimed, (or asked for,) and that he had issued grants to all the applicants for lands who had been licensed to settle in the valley of the Sacramento. He says, about two months after he saw a grant in the hands of Sutter, which Sutter informed him had been delivered at that time, and that he thinks the present copy corresponds with the one he then saw. The two witnesses who proved the loss of the other grant testify that the original of this was destroyed at the same time with the other, and that the paper produced is a copy of the one destroyed. This evidence is not entirely satisfactory to establish the execution of the grant. The two witnesses first named speak of a paper they had not seen since 1845, and one of them was not familiar with the language in which it is written. One of the other witnesses is largely interested as a grantee of the claimant in the issue of this suit, and the fourth immigrated to California after the treaty, was not conversant with the Spanish language, and derived much of his impressions from the parties who claimed title under Sutter, and of whom he was the attorney. But we are not disposed to place the decision of the [*180] cause *upon the deficiency of the evidence of the execution of the paper, and therefore do not pronounce absolutely upon it. The decisions of the court show that they have been disposed to interpret liberally the measures of the Mexican authorities in California, and to view with indulgence the acts and modes of dealing of the inhabitants, having reference to the laws of distribution and settlement of the public domain. The circumstances in which the governor was placed required that his power and discretion should not be circumscribed by narrow limits. In a remote province of the Mexican republic, he was almost the only representative of the general and common will of the nation, and he was habitually in collision, sometimes in violent collision, with provincial feelings, sentiments, and interests. At the time this grant purports to have been made, he was engaged in a civil war, which, after having been smothered for a time, had burst forth with increased violence. Within two or three weeks from the date of the grant, the war was terminated by the agreement of Micheltorena to abandon the country. He never returned to the capital, except to prepare for his departure. The laws of Mexico for the colonization and The United States v. Sutter. settlement of the public domain embody a comprehensive and liberal policy, and the arrangements for their execution denote care and circumspection on the part of their authors in securing their faithful administration. They authorize the governor (politicos gefes) to grant lands to those who may ask for them, for the purpose of cultivating and inhabiting them. They require that every person soliciting for lands shall address the governor a petition, expressing his name, country, and profession, the number, description, religion, and other circumstances of his condition, and describing as distinctly as possible, by means of a map, the land asked for; that the governor shall obtain the necessary information whether the petition embraces the requisite conditions required by the law as to the person and land, and, if necessary, that the municipal authorities might be consulted whether there be an objection to making the grant or not; that the grants made to private families or persons shall not be held to be definitely valid without the previous consent of the departmental assembly, [* 181] and, in case of their dissent, that it should be referred to the supreme government. The definitive grant being made, a document signed by the governor shall be given, wherein it must be stated that said grant is made in conformity with the provisions of the laws in virtue whereof possession shall be given, and that the necessary record shall be kept, in a book destined for the purpose, of all the petitions presented and grants made, with the maps of the lands granted, and the circumstantial report shall be forwarded quarterly to the supreme government. * The office of political chief of a State or province has long existed in Spain, (whence it was derived by Mexico,) and his duties are defined with precision in the works on the administrative law of that monarchy. The authoritative acts of this officer assume the form of ordinances and regulations, or of decrees and judgments. The former relate to the concerns of the department, and may issue spontaneously, while the latter always proceed upon a petition. There are scarcely any formulas prescribed for these acts. there exist certain rules, consecrated by usage, sanctioned by reason, and required by justice, some of which have received the assent of the legislator, and others are official regulations. But The administration has need of information, and hence the political chief may consult with subordinate authorities and corporations. in all business in which exact information is required of local facts and circumstances, and he is bound to hear the suggestions of the deputations and provincial assemblies when the law requires ita rigorous condition, a compliance with which should appear in the The United States v. Sutter. recitals of the disposing part, and the inserting of the customary formulas, that the act may not be contested by excess of power. Finally, all the acts of the political chief shall be authenticated by his signature, and it concerns the good order of the administration that they should be inserted in a special record. (Colmeiro derecho Admin. secs. 285, 286.) Assuming the statements of the witnesses, Castanada and Ford, to be accurate, it can hardly be contended that the issue of [*182] this grant was an act of civil administration, or had * any reference to the law of colonization and settlement. At a distance from the capital, in the prosecution of an intestine war against a band of insurgents, surrounded by a body of foreign volunteers, in whose fidelity his safety depends, the governor promises to dispose of the public domain as a compensation for service, or as an inducement to loyalty. In a few days this governor is defeated, vacates his post, and his troops are disbanded. The hostile government that succeeded to that of Micheltorena have not recognized the legality of the deeds of the deposed chief, nor did the claimant (so far as we are informed) attempt to obtain any sanction to his claim, or to introduce the evidence in his possession among the archives of the department, without which a perfect title could never have been obtained. On the contrary, record shows that he was a captive in the hands of the enemies of Micheltorena, and was released, after humble apologies, for his adherence to the unfortunate chief, and protestations that in future he would be loyal to the existing authorities. He kept his grant concealed apparently as a dangerous secret, until an entire change in the political constitution of the country took place. In our opinion, this was not a valid claim at the date of the treaty of Guadalupe Hidalgo, and is not entitled to recognition from the United States. It appears from the deeds in the record that the claimant has conveyed nearly all of his estate in the land included in the two grants, and objection is taken to the form of the suit. It is contended that the claim should have been preferred by the grantees of the claimant. We admit the force of the argument in favor of the objection, and that the dormant interests of persons not parties on the record may frequently disturb the course of justice. But the contrary practice was sanctioned in Percheman's case, (7 Pet.,) and has been followed since. It is competent to persons interested in the claim to employ the name of the original claimant. (United States v. Percheman, 7 Peters, 51; United States v. Patterson, 15 How. 10.) The United States v. Sutter. The decree of the district court is affirmed, in so far as it relates to the grant bearing date the 18th of June, [* 183] 1841, and executed by Juan B. Alvarado; and is reversed in so far as it relates to the grant purporting to have been executed by Micheltorena, at Santa Barbara, the 5th of February, 1845; and the cause is remitted to the district court for further proceedings in respect to the location of the grant of Alvarado, within the limits set forth in the grant and the accompanying map on file in the case. Mr. Justice DANIEL and Mr. Justice CLIFFORD dissented. Mr. Justice CLIFFORD. I respectfully dissent from so much of the opinion of the court as affirms that a proper legal foundation. was laid at the trial for the introduction of parol evidence to establish the existence and authenticity of the Alvarado grant. When a concession of land is made by the government to an individual under Mexican laws, as in this case, a duplicate copy of the title. paper is required in all cases to be filed in the proper tribunal for registry; and unless that is done, it is difficult to see how a legal registry can be made. That duplicate copy is in the nature of an original paper, and, after registry, becomes the foundation of all the subsequent proceedings of the government to perfect the grant in the donee. It was the duty of the purchaser in this case, in the absence of any original grant, to produce that duplicate copy, if in existence; and if not, then to account for its loss. According to the draught presented as a copy, proved by parol evidence, the grant was made subject to the approval of the supreme government and of the departmental assembly. It has never been decided that a grant issued by a subordinate officer, subject to the approval of the supreme government, was valid without such approval; and, in my judgment, the doctrine cannot be maintained without subverting the essential principles on which every well-regulated government rests. That grant was never approved, either by the supreme government or the departmental assembly. Under the circumstances disclosed in the record, I cannot concur that [* 184] it is the duty of the United States, under the treaty, to disturb the possession of the settlers, while it appears that there is better evidence to establish the right of the donee, if any he had, to the land described in his concession. On the proofs exhibited, I am of the opinion that the decree of the district court should be wholly reversed. * Mr. Justice DANIEL. I fully concur in the above opinion. The General Clinch. 21h 184 L-ed 106 37f 891 381 362 THE GENERAL CLINCH. THE OWNERS OF THE JAMES GRAY, Appellants, v. THE OWNERS OF 21 H. 184. CONSTITUTIONAL LAW-ADMIRALTY COLLISION. 1. In the absence of any act of congress covering the same subject, the ordinances of a city prescribing for her port at what wharf a vessel may lie, how long she may remain, where she may load or unload, where she may anchor and for what time, and what description of light she shall display, are valid, if they do not conflict with the general admiralty law. 2. The omission of a light in the night, required by such an ordinance, when she is anchored in the usual track of vessels, is a fault for which she is liable. This is also a fault by the maritime law. 3. But a steamboat with a tow, which she brings into collision with such a vessel, is also in fault when the night is so clear that the vessel at anchor can be seen, and when the steamboat has no sufficient lookout, and is otherwise careless and negligent. 4. The vessel in tow which produced the damage by collision is not in fault when she was suddenly detached from her tug, when on a course that must produce the collision, and with no time to change it or prevent the result. 5. In such case the steamer and the vessel at anchor, both being in fault, must divide the damage of the collision between them. APPEAL from the circuit court for the district of South Carolina, sitting in admiralty. The case is well stated in the opinion. Mr. Cushing and Mr. Gillet, for appellants. Mr. Brown, for the owners of the John Fraser. Mr. Mitchell, for the owners of the General Clinch. [* 185] *Mr. Chief Justice TANEY delivered the opinion of the court. This is a case of collision in the port of Charleston, South Carolina. The brig James Gray took on board a valuable cargo at Charleston, destined for Antwerp, and in the prosecution of her voyage hauled off from the wharf into the stream and [186] * anchored, on the 1st of February, 1856. The place where she anchored was in the harbor, and was the place where vessels bound out usually anchored for a short period, to make their final preparations for sailing on their voyage. It was, however, a thoroughfare for vessels bound in, and through which they were almost continually passing. She remained there until the collision took place, which happened on the night of the 5th of the month above mentioned, about seven o'clock, shortly after day |