evidence of a grant to the corporation, or to the individual under whom the lot-holders claim. The further provision is then made, that where any city, town, or village, shall be in existence at the date of the Act, March 3, 1851, the claim for the land embraced within the limits of the same may be made by the corporate authority. This must relate to cities, &c., not in existence prior to July 7, 1846, in regard to which the presumption of a grant is not to be adopted.

or,

§ 355. One of the first questions that must arise under this act, will be, whether the commissioners and the District and Supreme Courts of the United States are authorized to act upon titles that were inchoate at the time of the cession, and if so, under what circumstances an imperfect title may be confirmed. I conceive that the question arising under this law, like that arising under the acts relating to the Florida and Louisiana claims, must be, substantially, whether there was an incipient title at the time of the treaty, capable of being perfected under the Mexican government; in other words, whether the land had been severed from the public domain by acts on the part of the government, which gave the claimant an equitable right to have all the further acts of confirmation which the law made requisite to a perfect title. This view is supported by the provisions of the treaty and those of the statute. In the first place, the treaty stipulates for the protection of the property of Mexicans, resident and non-resident; and in regard to the nonresidents, it takes care to provide that "property of every kind" "shall be inviolably respected." With regard to the resident inhabitants of the country, the provision of the treaty gives them the right to remain or to remove, at any time, to the Mexican republic, retaining, in either case, the property which they possess in the territory, or disposing of it and removing the proceeds. These provisions extend somewhat beyond those of the law of nations. The doctrine of the law of nations is, as we have seen in a former part of this chapter, that the inhabitants of a ceded or conquered

country retain their property and rights of property, without treaty stipulation to that effect, and that the cession conveys to the new sovereign, besides the political sovereignty of the country, no other property than such as belonged to the old one. But the law of nations is not understood to provide, in respect of landed property, for a right of removal of the inhabitants into the dominions of their former sovereign, or for the case of those who were not inhabitants of the country at the time of the cession. The stipulations of the treaty, therefore, in these respects, are additional to the provisions of the law of nations, and not cumulative.

§ 356. The cession of California, therefore, by the treaty of Guadalupe Hidalgo, left the property of the inhabitants of the country under the protection of that principle of the law of nations which protects private property of the inhabitants of a ceded country in all cases of cession, and under the further protection of the treaty, which gives to the Mexican inhabitants the right to remain or to remove, still retaining their property in the territory; and it left the property of the non-resident Mexicans under the special provision of the treaty, which declared that their property of every kind should be inviolably respected, and that they, their heirs and assigns, should enjoy, with respect to it, the same guarantees as if it belonged to citizens of the United States. Now, it is a well-settled rule, that an inchoate title to lands is property in the sense of the law of nations, as well as in the contemplation of a treaty; that the law of nations means to protect, in cases of cession, all the rights of property which were recognised as rights by the former sovereign, and to give to them the same effect that the former sovereign would have given; and, therefore, in the case of an imperfect title, or one where the first steps only had been taken for the acquisition of a complete title, the question is, whether a right had so attached, as to affect the conscience of the former sovereign with a trust, and make him a trustee

1 Ante, 8 287, 292.

for the individual, because the acts done amount in equity to a severance of the land from the public domain, before and at the time of the cession.1

§ 357. The statute which directs the adjudication of land claims in California, does not apply solely to cases of strict title. It directs an inquiry into the case of "each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government;" and it is "the validity of the said claim" that is to be adjudicated. It is, moreover, to be adjudicated according to the provisions of the treaty, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they are applicable. The act, therefore, adopts the whole body of the rules of the law of nations, which regulate the rights of the inhabitants of a ceded country, and which recognise inchoate rights as rights of property. It adopts, also, as. the means of determining whether a right of any kind. existed, the laws, usages, and customs of the government from which the claim is derived. It adopts the principles of equity as the basis of the adjudication which is to be made between the United States and an individual; and finally, it adopts the decisions of the Supreme Court, so far as they are applicable, that is to say, so far as they have declared or recognised the principles of the law of nations, or have furnished rules of determination, as to the origin of rights under the laws, usages, and customs of the former government, or have established the principles of equity applicable to claims of this nature, when asserted by individuals against the United States. It is quite clear, therefore, that cases may arise under this act, where the right of the party is inchoate, and where the inquiry must be whether, according to the laws, usages, and customs of the government, from which the

Smith v. The United States, 10 Peters, 326; The United States v. Boisdoré, 11 Howard, 63. 2 Act of March 3, 1851, 2 8, 11.

.

claim is derived, acts had been done which gave the claimant an equitable right to a full and perfect title; or, in other words, which amounted in equity to a severance of the land from the public domain. For example, the question may arise whether a concession, made in due form by the territorial Governor of California, and possession taken under the same, gave the party any right which the United States is bound to recognise, without the approval of the territorial deputation, according to the Mexican executive regulations of 1828. We have seen that in the case of the "sitios" or individual grants, the concessions of the territorial governor required confirmation by the territorial deputation; and in case of rejection by them, the governor was directed to appeal to the supreme government. The language of the regulation does not appear to make the consent or approval of the territorial deputation the inception of the right; on the contrary, it appears to provide that the concession of the governor shall not operate as a complete and perfect title. · until the consent of the deputation has been obtained. If this is a correct view of the regulation, then the question remains open, whether, taking into view the provisions of the Mexican law, the concession of the governor is to be regarded as the inception of the right, and as conferring upon the party a right to obtain either the approval of the territorial deputation or that of the supreme government. If such is the true character of the governor's concession, and if, upon the principles and rules of the Mexican law, there are no circumstances which show that the party could not have obtained the approval of the territorial deputation, or that of the supreme government, either from the non-fulfilment of conditions, or want of compliance with general regulations, or because he was not within the policy of the laws regulating grants of the public lands, then I conceive that the United States would be bound to regard his claim to the land as valid.'

The original text of the 5th section of the regulations of 1828 is as follows: "Las concessiones hechas a personas o familias particulares no

se tendàn por valederas definitivamento, siu privia consentimiento de la Diputacion Territorial, à cuyo effecto se pasarán à esto los expedientes respectivos."

"Concessions made to individuals or particular families shall not be held definitively binding without the previous consent of the Territorial Deputation, to which effect there shall be transmitted to it the respective records." (The word expediente in Spanish legislation has a peculiar meaning, which is not well expressed by our English word record. It means, in this connexion, the title paper or papers issued by the governor.) The force of this provision does not appear to me to be materially affected, whether we adopt the translation "shall not be held definitively binding," or translate the clause, "shall not be definitively held binding," "without the previous consent of the Territorial Deputation," &c. The meaning of the provision would seem to be, that until the consent of the territorial deputation has been given, the concession of the governor shall not be held to give a valid, or complete, or perfect title. This may well consist with the doctrine that the concession of the governor gives an inchoate or imperfect right to the land, which is to become complete and perfect by the consent of the deputation. But it would occupy too much space, and result in the discussion of questions which must soon be before the Supreme Court, to enter here into an examination of the various provisions of Mexican law, which tend to show that the concession of the territorial governor did or did not create any right to the land, before the consent of the deputation had been obtained. I have been favored with the perusal of a learned and elaborate argument made by George W. Cooley, Esq., late government agent, before the California land commission, in a case in which this question arose, and in which it is discussed with great ability and research.