possible diligence has been used to find the missing papers; but with

out success.

The testimony of Francisco Arce was also taken by the claimants, who testifies that in 1844 he was the chief clerk of the Secretary of State; that he wrote the petition for the Romeros; that after the decree of the 23d March, Romero and Soto appeared before the Governor, when the latter renounced his claim to the land, and it was therefore granted to the Romeros; that the grant was drawn up by one of the clerks, signed by the Governor in the presence of the witness, and delivered to Inocencio Romero. We concede that this witness docs not occupy a very favorable position; and that on his cross-examination, he appeared to equivocate to a degree, well calculated to impair his credibility. We do not therefore rely particularly upon his testimony, further than it is corroborated by other evidence. But in the main facts he is corroborated by the testimony of Inocencio Romero, Tingley, Strode, Redmond, and other witnesses.

Jose Jesus Policarpio Mesa, another witness, testifies that in 1844 he resided at San Jose; that Inocencio Romero, in that year came to the house of witness sick, on his return from Monterey, and had with him a bundle of papers, which he said were the title papers for the ranch; that he said he had procured the title and had it with him in the bundle; but the bundle was not opened and witness did not see the papers. Some years after this when Garcia had bought or was about to buy an interest in the land, witness saw the title papers in the hands of Attoyo, who was reading them. Saw the Governor's signature and knows it was genuine.

Ramond Briones, another witness, testifies that in 1845, Inocencio Romero produced his title papers in presence of the witness, and they were read in his hearing by one of the sons of Romero, and that all the "colindantes" conceded the title was in the Romeros.

Mariano Romero, one of the original grantees, who had sold all his interest in the tract to one Campbell, before the petition for confirma

tion was filed, testifies that he resided in Monterey and had no agency in procuring the title, which business had been entrusted solely to his brother Inocencio; but in 1844 or 1845 Arce told him at Monterey that the final title had issued. He further testified that he had not seen his brother Inocencio from 1844 to 1852, and therefore had no personal knowledge, in respect to what he had done about the title.

This mass of testimony, so minute in its details, and most of it from intelligent, reliable, and perfectly creditable witnesses, places beyond a reasonable doubt, the fact of the existence and loss of the grant. We propose to examine the countervailing proof relied upon on behalf of the Government.

First in order is the deposition of Jose Romero, one of the original grantees, who testifies that no grant issued, and that they only procured the order for the measurement of the land. It is apparent from his deposition, that he is an exceedingly ignorant and stupid person, and that either from this cause, or some more culpable one, his testimony is entitled to no weight whatever. He admits that he cannot read or write; that he had no agency whatever in procuring the title; that his brother Inocencio had the sole charge of the business; that he never saw any of the papers, except the order for measurement, and he saw that in the hands of the alcalde; that he lived at a distance from the land, and but seldom saw his brother; and when asked how he knows the title did not issue, the only reason he gives is, that he had not seen it; but says that his brother ought to know more about it than he does. His testimony in respect to the occupation of the land by his brother, is not only contradicted by all the other evidence in the cause, but is in itself a mass of contradictions, incapable of solution. The most charitable construction to be placed on the whole testimony of this witness, is that he is too stupidly ignorant, to testify intelligibly on any subject. When analysed, hist testimony amounts to absolutely nothing.

Another witness, Jose R. Mesa, testifies that he was present during

one day of the trial at San Jose between Peralta and Garcia and Romero; that he cannot read or write; but whilst he was present, Romero's title papers were read in Spanish in the court, and that he heard read only an order for the measurement of the land, and no final grant. The trial lasted several days and he admits he was present but one day. His testimony on this point is directly contradicted by Tingley and Redmond. Intelligent attorneys engaged in the cause, would be far more apt to understand and to remember what transpired, than an ignorant spectator, who had no interest in the proceedings, and who casually heard read a document in the cause. After the lapse of eight or ten years, the recollection of such a witness, as to the contents of a paper, in which he was not interested, is of no value as opposed to the explictit testimony of two respectable attorneys engaged in the suit. In addition to the unreliable nature of such testimony, it does not follow that a final grant was not produced and read, because he did not hear it. His negative statement, amounts to nothing, under the circumstances, and especially as opposed to the testimony of Tingley and Redmond.

He also testifies that soon after the trial he was present at a conversation between Peralta and Romero, in which the latter admitted, that he had only a provisional license, but no title for the land; and that he wished to sell out to avoid litigation; that in 1853 or 1854 he heard Garcia say several times that he had only a provisional title ; but was making efforts to procure the title and wished to sell out to avoid litigation. No one else was present at these conversations. Admissions are at best, the weakest of all evidence, and the fact that no such admissions were made in the presence of this witness, is established by the facts deposed to by Romero himself and by Tingley and Redmond. Unless these witnesses are perjured, it is not in the least degree probable that either Romero or Garcia, the defendants in the suit with Peralta, ever admitted the facts as deposed to by this witThese parties were all ignorant of our American laws and cus

ness.

toms, and Romero or Garcia may have expressed doubts whether their title would be recognized by our government; and the witness has possibly confounded it with the original title. Their desire to sell out may be readily explained by the fact, that in those days the most valuable lands, held under the best grants, were so overrun with squatters, that the owner of a league of land was sometimes robbed of his orchard and garden, and even his dwelling so hemmed in with "settler's" (that was the polite name by which they entitled themselves) fences, that he had no means of egress from his front door. It is not surprising that the ignorant, simple-hearted Mexican "ranchero" was anxious to sell, under such circumstances; and he may well have expressed a doubt, whether a government which tolerated such outrages, would recognize his title. Whatever doubts Garcia or Romero expressed about the title, were unquestionably in reference to our government and courts. Whilst Mexico held the dominion we hear of no such doubts, upon the part of the grantees or others. On the contrary they claimed the land; built houses and corals upon it; cultivated it; grazed their numerous herds upon its valleys and hills; reared their children upon it, and were recognized by all their neighbors as the lawful proprietors. But when the Americans came their troubles began. They are soon involved in actions of ejectment; their lands are seized upon by "settlers;" their title papers must be scrutinized by lawyers; one of whom abstracts them and offers to sell them to another, on a speculating venture. It is not difficult to see, why

Romero and Garcia were anxious to sell and had doubts about their title in 1850 and afterwards.

This is all the oral proof adduced on the part of the Government, to rebut the mass of testimony on behalf of the claimants, to establish the existence and loss of the grant. But in the opinion of the Court rejecting this claim, considerable importance is attached to certain documents produced by the claimants, from the office of the Alcalde of San Jose, and to a clause in the deed of conveyance from Jose

Romero to Garcia. The District Court was of opinion, that these documents so strongly repelled the idea that a grant had ever issued, as to overcome the proof to the contrary; and it was upon these that this branch of the case was mainly decided. We hope to demonstrate, that the District Court wholly misapprehended the purport and effect of these documents, and that no such construction should be put upon them as that given by the Court.

The first in date of these documents, is a petition dated March 31st, 1847, addressed by Jose and Inocencio Romero to Burton, Alcalde of San Jose, in which they state, that some years before, they solicited a tract of land bordering on the lands of Castro, taking the surplus of that tract and those bordering on the lands of Vil (Will) to the North; that the Governor ordered Castro's lands to be measured and that the petitioners were to have the surplus; but the measurement has never been made, there having been no occasion for it; that the papers to prove this ought to be in the Alcalde's office; that the petitioners are two brothers with numerous families, having some stock without having any piece of land on which to raise cattle. Wherefore they pray the Alcalde to provide for them as soon as possible, that they may be enabled to retain and locate their cattle.

On the 5th April, 1847, the Alcalde, Burton, made an order on the margin of the petition, to the effect, that as soon as practicable the order of the Government be proceeded with to its fulfillment.

This petition refers exclusively to the fact of the measurement, and is in no respect inconsistent with the existence of a grant of the surplus. The grievance they complained of, was the failure to measure the land and set apart the surplus. Until this was done, no boundaries could be fixed, and there was no specific portion of the land which the Romeros could claim as exclusively theirs. Their whole object in the petition was to procure this measurement, in order to ascertain the quantity and establish the boundaries. They very properly refer the

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