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This decree signed by the Governor and sealed as specified in the body of it, was delivered to Capt. Sutter, who was the proper custodian of the archives pertaining to the extensive district of his civil and military command, and on the 8th of June, 1846, a copy duly certified, was by him delivered to Mr. Nye, the claimant in this case. (See documents on file and particularly deposition of Capt. Sutter.)

Mr. Nye took possession of his land within a year after this decree was promulgated, built a house and corrals, put on five or six hundred head of cattle and horses, and occupied the place personally, as will be seen from the depositions of John Saunders, Samuel J. Hensley and John Bidwell, at least till the beginning of 1846, probably about the time of the war, when it would seem that his occupation was interrupted by Indian hostilities. (See deposition of Capt. Sutter, in case of Peter Lassen; No. 182, stipulated to be considered in evidence in this case.)

With respect to the description and identity of the land claimed there can be no doubt. It is exactly described in the petition to the Governor, and in the map accompanying it. The petition and map are on file, and that the same identical map was attached, as it now appears, to the petition when presented to the Governor, and also when the informe of Capt. Sutter, and the orders of the Governor and Secretary were indorsed upon it, will be found sufficiently proved by the depositions of Capt. Sutter and John Bidwell.

The material facts as proved on the part of the claimant, which show that he is embraced within the terms of the Governor's s general decree of 22d Dec., 1844, are:

1. That he had previous to that decree petitioned for the land now claimed.

2. That this land was described in his petition and map annexed.

3. That the said petition and map had been presented to the Governor. (This appears by the indorsement of the Governor, Secretary, and depositions of Capt. Sutter and Mr. Bidwell.)

4. That the petitioner had presented himself to Mr. Sutter, the Judge and Military Commandant, and obtained a favorable informe.

These facts bring the claimant within the terms of the decree of Micheltorena, and upon him and his family the said decree "in the name of the Mexican nation; confers the property of the land described in his map.

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THE LAW.

I shall say but little respecting the character and extent of the powers exercised by the Government of Tacubaya, from which Gov. Micheltorena received his commission, since it is deemed unnecessary in order to sustain the present claim, to assume that the Government possessed any other powers but those conferred

by the Colonization law of 18th Aug., 1824-powers which it was equally competent to exercise under any of the constitutions, bases, or revolutionary plans, by which Mexico has at any time been governed.

I will also pass over the question which naturally suggests itself, whether by virtue of the decree of Micheltorena, of 22d Dec., 1844, the various settlers described in it, including the present claimant, who had petitioned for lands and obtained favorable reports from Capt. Sutter, became invested with the legal title to the lands described in their respective applications and accompanying maps, subject to the legal conditions, for it is only necessary to inquire whether they acquired a just right to demand a legal conveyance; whether the faith of the nation was pledged to them, that is, whether Micheltorena assuming in that degree to act in the name of the Mexican nation was duly authorized so to do.

The powers which Congress conferred on the Executive in the 16th article of the law of 18th Aug., 1824, over the subject of colonization in territories, are general, and subject to scarcely any restrictions: "The Government, conformably with the principles established in this law, shall proceed to colonize the territories of the Republic." This is the language of the act of Congress-the law. (Art. 16.)

The Government, under this general authority, may do everything that Congress itself could do which it may deem suitable and proper on the subject of colonization in the territories. Congress has specified the subject but not the mode of action. It has left this to the discretion of the Executive. It has conferred on the Executive all its own power. The will of the Executive, so far as it may not conflict with the constitution, or any existing legislative dispositions, constitutes the law which is to regulate the whole business of colonization. If this power to colonize includes the authority to distribute lands to colonists or settlers, which it undoubtedly does, the Government may make the distribution in any mode it may deem proper, in any mode that Congress itself could do. It may grant pre-emption or other rights in lands, either to individuals by name, or to classes of persons by description, and the rights thus acquired would be as sacred as those which may be acquired by settlers under any pre-emption or donation laws of the United States.

Congress has not only left the mode of colonization to the unrestricted discretion of the Executive, but has not even designated any of the functionaries that are to be employed in carrying it into effect. It has decreed that the territories of the Republic shall be colonized, and that the Government shall proceed to do this. Who and what is the Government? It is the Executive Power, at the head of which is the President of the Republic, and includes all its constitutional agents. "As it is not possible for the administration by itself alone to attend to all the diversified objects which are committed to its charge, throughout the whole extent of the national territory, the division of this territory into

districts, and placing at the head of the several divisions and subdivisions, of direct agents with equal power to regulate the objects of their incumbency, are the only means of organizing the public administration." (Derecho Administrativo by Lares, p. 18.) One of the essential characteristics of the Executive administration in Mexico is its unity, which is attained by the gradual and implicit dependence which the agents of the administration. have upon their respective superiors. This dependence, intimately connected with ministerial responsibility, exacts that the inferior agent must obey his superior, or if he cannot, immediately resign. In order to maintain this unity, the superior agents find themselves frequently under the necessity of regulating the action of their subordinates by means of officios, circulars and instructious. (ib. p. 38-39.) And hence it is that the official acts of every subordinate functionary have in their favor the legal presumption of having been performed in obedience to the orders of his superior, so that he who charges any excess of authority must prove it by producing a disavowal on the part of the superior. (ib. p. 199.) It does not devolve upon those who set up rights under such official acts, to prove their instructious or superior orders, for their existence is presumed, and he who alleges the contrary must prove it, which, as the instructions may have been, and in point of fact frequently are private, can only be done by an express disavowal on the part of the superior. (ib.)

Such would be the rule applicable in this case, with respect to the acts of Micheltorena, even if we were not in possession of the ample instructions under which his administration was conducted. I shall take it for granted that the document dated 11th March, 1842, purporting to be instructions from the Supreme Government to Gen. Micheltorena as Governor and Commandante General of the Californias, which will be found published in connection with Mr. Jones' argument in the case of Cruz Crevantes, is genuine.

Gen. Micheltorena was not restricted in his action on the subject of colonization in California, by the executive regulation of 1828.

It is admitted that he was bound to observe the existing laws, but he was not bound to observe that regulation. His conduct was to be governed by a different rule. "The President, acting in the full persuasion that he would not abuse his powers, but would exercise them for the welfare and service of all the inhabitants of that interesting and fertile department which the Supreme Government had placed under his charge and responsibility, was pleased to grant him, (Micheltorena,) over and above the attributions assigned to him by the existing laws and regulations as Governor, Commandant General and Inspector, allthe power which the Supreme Government could delegate to him," and among the subjects over which this unlimited authority was conferred, colonization is expressly mentioned. So that on the subject of colonization, Gen. Micheltorena possessed, over and above the powers which had been previously conferred on the Governors of

the Territories, all those which the Supreme Government could delegate.

That it could and did delegate the power to alienate the public domain for the purpose of colonization, has been held in effect by this Court in every decision it has pronounced in cases of California land claims, because the only power to grant land possessed by the Governors of the Territories, was delegated to them by the executive - not by Congress in the executive order or regulation of 21st Nov., 1828. That it could delegate to the Governor of California this power over the subject of colonization within the limits of the department, so that he could exercise it to the same extent, and in the same mode that it would be lawful for the Supreme Executive to exercise it, cannot be doubted. The exercise of the delegated authority must necessarily be subject to the superior control and supervision of the Supreme Government, because the authority conferred on it by the law is essentially inalienable. But to delegate authority or power is not to renounce it. The General executive must necessarily act through and by its subordinate agents, and these agents exercise within their respective demarcations all the executive functions comprehended in their instructions, subject to no restrictions whatever but such as may be imposed by the laws.

Gen. Micheltorena, then, possessed over the subject of colonization in California, all the powers which the Supreme Government could delegate to him, that is, all the powers conferred upon the Government by the 16th article of the Colonization law of 1824.

And it will be observed that the general and unrestricted authority claimed for him and for the general government from which his was derived, is not predicated upon the extraordinary powers with which the provisional executive was invested under the Bases of Tacubaya, but upon the provisions of the law of 1824 alone. So that so far as colonization was concerned, the restoration of constitutional order on the 13th of June, 1843, by the adoption of the Bases Organicas, did not change the condition of affairs in any respect whatever, the executive not having pretended to exercise on that subject any powers but those conferred by the then existing laws. No extraordinary power, indeed, could be more full, complete, and unrestricted than that which was conferred upon the Government over the subject of colonization before the Bases of Tacubaya were proclaimed, and which it has ever since possessed. And this is the power, as before shown, which was delegated to Gov. Micheltorena, and in virtue of which he promulgated the decree on which principally the claimant in this case bases his right of property.

What is the objection then to that decree? That it is not the form of title prescribed by the regulation of 1828. But that is immaterial, for the powers conferred on Micheltorena were over and above those comprehended in that regulation. Nor is it anything more nor less than a simple absurdity to contend that a claimant who applies for the completion of an inceptive title, the recognition of an equitable right, the execution of a formal con

veyance, is bound to show that his title is already complete, and his right of property perfect, as it would be if all the provisions of the law had been observed.

This decree promises to the persons described in it, individual patents for their lands, in place of which a copy of the original order was to serve them ad interim. These individual patents were not necessary to confer the right of property, but to evidence it. The decree itself declares them already invested with the property, so that nobody shall ever have a right to question it, and pledges the national faith that it shall be respected in all time. But for the security of each individual, and for the purposes of legal proof, as often as occasion might require it, a patent executed on paper of the proper stamp was promised, and that is the document which is wanting, and which the United States is bound to supply.

Again, does this decree conflict with any of the restrictions imposed on the Executive by the laws? A careful examination of the several provisions of the act of 1824, and all the other laws on the subject of colonization, will show that it does not. It is then but the legitimate and regular exercise of the power conferred by law on the Executive, and Gen. Micheltorena assuming to act in the name of the Mexican nation, was duly authorized. It is the decree itself, be it remembered, that gives the right. It is not the delivery of the copy of it, which Capt Sutter was authorized to certify for the use of each one of the parties interested.

That was delivered as evidence only. If not delivered at all, it would not prejudice the right of property. The decree was valid as a public act as soon as signed by the Governor, or at least, as soon as promulgated. Certified copies could be obtained, or not, at the convenience of parties interested.

But even if the Government had constituted Capt. Sutter a director of colonization to invite settlers, distribute lands, and give possession, I see no objection to its doing so. This is the course of action which it has frequently adopted; it is within the general powers given by law.

Gen. Micheltorena then, having all the powers that the Supreme Government could delegate, and being, moreover, ex officio the constitutional agent of the Government by whom it must act in the Department of California, might, "conformably with the principles," and subject to the restrictions contained in the law of 1824, proceed in the colonization of that Department in any mode which he might deem proper.

The regulation of 1828, if it affords any objection to the decree referred to, is entirely out of the question. That is not a law; it is an executive order, an instruction by the same Supreme Government which afterwards superadded all its own power and authority without any restriction.

It follows, therefore, that Nye acquired a title of equal validity under the general decree of 22d Dec., 1844, that would have been conferred by a special individual grant to him by name, made in

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