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strict conformity with all the requisites and formalities prescribed by the regulation of 1828. In the form of the grant there is no conflict with the act of Congress of 1824-the colonization law, while it is fully authorized by the ample powers under which Gen. Micheltorena's government was conducted.

The Mexican Government has proceeded in various modes in the distribution of lands to settlers. Under the regulation of 1828, the observance of which is very far from having been universal, a document signed by the Governor was to be given to each individual applicant.

Sometimes, as under the provisions of the convention entered into in London, 15th Sept., 1837, the holders of certificates entitling them to a certain number of acres of land, were to present themselves to the local authority, which would generally be the Alcalde or justice of the peace, and receive possession of the land which they might select to be surveyed off to them. By a regulation formed by the Executive on the 4th Dec., 1846, the business of colonization was committed almost entirely to a junta of its own creation, denominated the Direccion de Colonizacion.

This junta and its agents and commissioners in the States and Territories, were to make sales of lands and give the proper deeds to the purchasers, who were obligated to settle the lands (see art. 27, 29 and 31.) Sometimes the distribution to individual settlers has been made by Empresarios.

There is no law which declares that individuals who settle upon public lands by invitation of the Government, cannot acquire any rights except by receiving individual patents. Any act of the Government assuring to them a definite tract of land, is sufficient if they comply with the conditions incumbent on settlers. A general title for all the settlers throughout the Territory or Department would confer on each individual embraced within the terms of it, rights equally valid as if he had received an individual grant. There must be certainty in the person and certainty in the thing. But a general description is as good as an individual description.

The land which Michael C. Nye had petitioned for, with its boundaries, extent and locality, was precisely defined in the documents which the Governor had had before him, and which being indorsed by him and by the Secretary, as well as by the judge of the district in which the land lay, left no room for any uncertainty or mistake.

This land the Governor granted to the present claimant, not by name but by description, and declared that he should receive an individual patent to be made out to him by name, on application to the Government. We now call upon the Government to fulfil this engagement; not to grant the land, but to give the evidence of title which was promised; not to confer the property, but to

protect that which is predecessor solemnly pledged itself to recognize and respect in all time, aud to "maintain the claimant in the free enjoyment" thereof.

The quantity of land petitioned for by Mr. Nye is fixed by the cboundaries named and accompanying map, and will be found to onsist of about four leagues square, and therefore whatever may be the technical import of the expression cuatro leguas en cuadro used in the petition, it is in this instance, and probably in several others where the petition was drawn up by the same hand, evidently meant to indicate the former quantity instead of the latter. The argument hitherto is based entirely upon the hypothesis that the Executive officers were invested only with the ordinary and Constitutional powers. But it is a fact well known in the history of Mexico, that Santa Ana's government continued to exercise legislative, as well as executive powers, from the date of the bases of Tacubaya, until he was expelled from power. In the Tehuantepec question, our Government maintained the position that his acts were valid as those of the government de facto, even though of a strictly legislative character, and though not authorized by the bases Organicas, which were promulgated on the 13th June, 1843. Whether his Extraordinary or Dictatorial power, rightfully, ought to have terminated at the latter date, or whether he might rightfully continue to exercise them, as in fact he did, until his final expulsion from power, it is certainly not necessary to decide in this case. It is agreed in Mexico, that Santa Ana was really invested with, and exercised, under the bases of Tacubaya, the legislative, as well as executive power. The two powers of government were united in the same hands. While this extraordinary power continued, the acts of himself, and of his subordinates, whether legislative or executive, were equally valid and binding, or more properly speaking, there was, during this period, no division of powers, no distinction between legislative and merely executive acts. The Government was supreme and absolute. Its will was the law. There was no period during the absolute monarchy in Spain, when the powers of the King were more unrestricted. This is universally admitted in Mexico The only question is, how long that absolute authority continued, and what force the acts of the Dictator, and his subordinates, had after the period arrived when he ought to have laid it down, but did not.

It is scarcely necessary to quote authorities in proof of this. I will, however, refer to the opinions of some statesmen and jurists in Mexico, whose particular attention was called to the subject, about the time that our Minister there was discussing the Tehuantepec question with the Mexican Government.

The subject is treated of in a manifesto, published in pamphlet, in the city of Mexico, in 1852, by Jose F. Ramirez, Minister of

Interior and Foreign Relations, in order to justify the Mexican Government in the position it had assumed, that the concession of a right of way, &c., across the Isthmus of Tehauntepec, which had been made to Jose Garay, and transferred to citizens of the United States, had been forfeited.

Also the same subject, (the powers of Santa Ana's Government,) is treated of in the report of a special committee of the House of Deputies, dated May 26, 1851, on the subject of the "Privilege conceded to Don Jose Garray, for opening an interoceanic communication through the Isthmus of Tehuantepec." This committee consisted of Conto, Cuevas, Fuente, and Don Lucas Aleman. The report will be found in a periodical work published in Mexico, entitled " Variedades de Jurisprudencia," vol. 2, page 388. HORACE HAWES.

SUPREME COURT OF THE UNITED STATES.

No. 40.

THE UNITED STATES, APPELLANTS,

VS.

MICHAEL C. NYE.

APPEAL FROM NORTHERN DISTRICT OF CALIFORNIA.

BRIEF FOR THE UNITED STATES.

J. S. BLACK,
Attorney General.

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