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instructions. (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 acquired under such official acts, to prove the instructions or superior orders, for their existence is presumed, and he who alledges 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 Comandante General of the Californias, which will be found published in connection with Mr. Jones' argument in the case of Cruz Cervantes, is genuine. In my own mind all doubt is removed on that subject, from the fact that I received from the hand of the Minister of Interior and Exterior Relations a certificate respecting the powers of Micheltorena, under the seal of that department, which accords perfectly with the contents of the document above referred to.

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 ound 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 to him, (Micheltorena,) over and above the attributions assigned to him by the exist ing laws and regulations as Governor, Commandant General and Inspector, all the powers 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, this Board has rightly held in every case that it has decided. 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 Exective 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 position 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 Governor 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 any thing 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 conveyance, 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 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 general 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 drecee 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.

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.

The Mexican Government has proceded 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 Col

onizacion.

This junta and its agents and commissioners in the States and Teritoriese, 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, can not 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 endorsed 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.

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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 its predeces sor solemnly pledged itself to recognize and respect in all time, and to "maintain the claimant in, the free enjoyment" thereof.

The quantity of land petitioned for by Mr. Nye is fixed by the boundaries named and accompanying map, and will be found to consist of about four square leagues, and not 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.

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APPEAL FROM THE DISTRICT COURT U. S. FOR THE NORTHERN DISTRICT OF CALIFORNIA.

G. S. GIDEON, Printer, 511 Ninth street, Washington, D. C.

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