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BEFORE THE

United States Board of Land Commissioners

FOR CALIFORNIA,

Michael C. Nye vs. The United States.

Claim No. 226, for

the Rancho called "Willy," embracing Four Square
Leagues on the Sacramento River.

BRIEF FOR CLAIMANT

BY HORACE HAWES OF COUNSEL.

THE FACTS.

Michael C. Nye, by petition dated 22d Dec., 1843, addressed to His Excellency the Commandante General and Governor of both Californias, represents that he has resided two years in the Department, and being possessed of some cattle and horses is desirous of obtaining a tract. of vacant public land bounded on the north by the Arroyo de los Venados, on the south by the rancho of Arroyo Chico, on the west by the river Sacramento, and on the east by the sterile lands which separate it from the Sierra Nevada; which tract consists of four square leagues, and is represented by a map accompanying the petition-he prays that His Excellency will accede to his application.

By an order of the Governor Micheltorena, endorsed in the margin, and dated Monterey, Dec. 31, 1843, information is required from the Secretary.

Following this, is an endorsement signed by the Secretary Manuel Jimeno, dated Jan. 4, 1844, saying "His Excellency orders that the present application be passed to Mr. Sutter as Encargado of the frontier of Sacramento, to the end that he may inform respecting its contents."

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Then follows Capt. Sutter's informe, dated Jan. 27, 1844, stating that "the land which Mr. Michael Nye asks for in this petition, and which is represented in the annexed map is unoccupied, and he gives this certification for the ends that may be convenient."

It appears that Capt. Sutter, the Encargado of the District of Sacramento, was invested (by the appointment of Gov. Micheltorena, I presume) with the functions of ordinary Judge, Prefect and Military Commandant for the frontier.

About this time, as the Commission are informed from facts connected. with the public history of the country, Governor Micheltorena contemplated making a visit in person to the northern frontier, and with that view had deferred acting definitively upon several applications on the part of settlers in that quarter. But in consequence of the disturbed state of the country, and the incessant occupations of the Government, he was not only prevented from making the contemplated visit, but found it inconvenient to attend for the present, to the issuing of individual patents to these settlers who were entitled to them.

Among theample powers with which he was invested by the instructions of the Supreme Government of 11th Feb., 1842, over and above those which the laws and ordinances then in force, confer upon him as the Governor and Commandante General, were included all those general and unrestricted powers expressed in the 16th Article of the Colonization Law of 18th Aug., 1824.

In virtue of this authority, he promulgated the following decree:

Manuel Micheltorena, Brigadier General of the Mexican Army, Adju tant General of the Plana Mayor, Governor, Commandant General and Inspector of the Department of the Californias.

This Supreme Departmental Government being unable in consequence of its incessant occupations, to draw up one by one the respective title papers (titulos) for those citizens who have solicited lands, with informe in their favor of Mr. Augustus Sutter, Captain and Judge charged with the jurisdiction of New Helvetia and Sacramento:

In the name of the Mexican nation, I do by these letters confer upon them and their families the property of the lands designated in their respective applications (instancias) and maps (deseños), upon all and each one who have solicited (the same) and obtained the favorable informe of the aforesaid Mr. Sutter up to the day of this date-so that nobody shall have power to question their right of property, a copy hereof, which Mr. Sutter shall hereafter give them, serving them for a formal title, with which they will present themselves to this Government, in order to extend the same title in due form and on stamped paper.

And that it may remain firm and stable in all time, I give this document, which shall be recognized and respected by all the authorities, civil and military, of the Mexican nation in this and the other Departments, authenticated with the military and govermental seals in Monterey, this twenty-second day of December, one thousand eight hundred and forty-four.

MICHELTORENA.

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 Sanders, 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 Losson, 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 endorsed 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 general decree of 22d Dec., 1814, 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 endorsement 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 application and map.'

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THE LAW.

In the argument before the Board, referrence was had to several authorities in order to explain the character and extent of the powers exercised by the government of Tacubaya, from which Governor Michelterna received his commission.

That part of the argument will have with the Board the influence which they may deem it entitled to, but will not now be repeated, 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 revolu tionary plans,. by which Mexico has. at any time been governed.

I will also pass over the question which will naturally suggest 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, bcca ne 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 enquire 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 decree 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 the 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."

The Government, under this general authority, may do every thing 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, as it undoubtedly does, the Government may make the distribution in any made 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 charged, throughout the whole extent of the national territory, the division of this territory into districts, and the 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 respetive superiors. This dependence, intimately connected with ministerial responsibility, exacts that the inferior agent 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 oficios, circulars, and

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