De La Solidad v. United States/Dissent Daniel
Mr. Justice DANIEL, dissenting.

From the decision of the court in each of these causes, (as I have done in that of the United States v. Reading, during the present term, and as I should have done in those of The United States v. Ritchie, 17 How. 525, and of The United States, v. Fremont, 17 Ib. 542, had I set in the causes last mentioned,) I am constrained to declare my dissent.

The decisions in all the causes above enumerated have, according to my apprehension, been made in violation of the acknowledged laws and authority of that government which should have controlled those decisions and the subjects to which they relate; are subversive alike of justice and of the rights and the policy of the United States in the distribution and seating of the public lands-of the welfare of the people of, California, by inciting and pampering a corrupt and grasping spirit of speculation and monopoly-subversive, likewise, of rules and principles of adjudication heretofore asserted by this court in relation to claims to lands within the acquired domain of the United States.

It has by this court been repeatedly and expressly ruled, with respect to the territories acquired by the United States, either by purchase or conquest, that the laws and institutions in force within those territories at the time of the acquisition, were not from thence to be regarded as foreign laws, and in that aspect to be proved as matters of fact, but that the courts of the United States were authorized and bound to take the same judicial cognizance and notice of these laws which they were authorized and bound to extend to the laws of the several States. This doctrine has been ruled after much consideration and reconsideration, as will be seen in the cases of The United States v. King and Coxe, 7 How. 833; The United States v. The cities of Philadelphia and New Orleans, 11 Ib. 609; and The United States v. Turner et al. 11 Ib. 663.

It is conceded that at the times at which the claims now sanctioned by this court came into being, and from a period anterior to the origin of those claims, down to the transfer of the country to the United States, there existed laws and regulations enacted by the Mexican government with respect to the granting of lands within the republic, prescribing the modes in which, and the agents by whom, all grants should be made, and prescribing also the limitations and exceptions to which the power of making grants was subjected.

Amongst the laws and ordinances here referred to, are those by which the authority of the provincial commanders of governors to originate the titles to lands was conferred and limited. The prerequisites indispensable for the consummation of titles-the immunity from the power of the provincial governors, or from grants or alienations by them, of lands belonging to the Missions; the prohibition of colonization and settlement within twenty leagues of a foreign territory, and within what have been denominated the littoral leagues, or ten leagues from the sea-coast; and the necessity for a sanction by the departmental assemblies to give validity to private or individual titles, were all, by the same system or body of laws, established and proclaimed.

With the wisdom or justice of those laws and ordinances, it is conceived that this court can have no legitimate concernment; much less can it exercise the power to dispense with them, or to modify them in any degree whatsoever. Its province and its duty are confined to inquiries as to the existence of such laws, and to their just effect upon the pretensions of claimants necessarily dependent upon and subordinate to those laws; and to the protection of the United States, the successors and possessors of that authority by which those laws were ordained.

Whenever these inquiries shall lead to the conclusion that such pretensions are unfounded in law, the right to the subjects to which they relate devolves necessarily upon the United States as succeeding to the sovereignty of the Mexican government; succeeding, also, to the high obligation of so disposing of these subjects as shall render them conducive to the national revenue; shall baffle and defeat the schemes of corrupt and corrupting avarice and monopoly; and shall maintain and secure an equality of privilege and benefit to all the citizens of the nation.

That the laws and ordinances above referred to were solemnly, formally, and legitimately established and proclaimed by the government of Mexico, is not denied, nor is it pretended that they have ever been expressly or openly repealed by the government of the republic. An attempt is made, however, to escape from the authority and effect of those public laws by setting up a practice in violation of them, and, from the proof of this practice, to establish a different code or system by which the former, regularly adopted and promulged, and never directly repealed, has been abrogated and disannulled. The results of this attempt, if successful, (and by this court it has been thus far rendered successful,) are these-that the laws and institutions of the republic of Mexico, inscribed in her archines, are not to be received and judicially noticed by this court; but they are to be sought for in the existence of machinations and abuses which have at different times obtained, in defiance of the established or regular government-proofs to be collected from sources however impure or liable to improper influences;-in other words, the laws of Mexico are to be extracted from statements varying or contradictory as they may be, and resting on the mere assertion of individuals, all of them perhaps interested.

How a proceeding like this is to be reconciled with the decisions of this court already cited, or how indeed it can be reconciled with uniformity or with the safety either of property or person, passes my comprehension to conceive. It can hardly admit of a rational doubt in the mind of any man who considers the character of much of the population of the late Spanish dominions in America-sunk in ignorance, and marked by the traits which tyranny and degradation, political and moral, naturally and usually engender-that proofs, or rather statements, might be obtained, as to any fact or circumstance which it might be deemed desirable or profitable to establish. And it will very probably be developed in the progress of the struggle or scramble for monopoly of the public domain, that many of the witnesses upon whose testimony the novel and sturdy Mexican code of practice or seizure is to be established, in abrogation of the written law, are directly or intermediately interested in the success of a monopoly by which, under the countenance of this court, PRINCIPALITIES are won by AN AFFIDAVIT, and conferred upon the unscrupulous few, to the exclusion and detriment of the many, and by the sacrifice of the sovereign rights of the United States.

A transient view of the circumstances under which these enormous pretensions have been originated, is sufficient, if not for their absolute condemnation, at least, to subject them to a most vigilant scrutiny.

If we look at the condition of the country at the time, we find it in a state of almost incessant agitation, disorder, and revolution-controlled in rapid succession by men either themselves directly and violently seizing upon power, or becoming the instruments of those who had practised such irregularities-men whose position was created or maintained by no regular or constitutional authority, but simply by force, and continuing only until overthrown by superior violence. Thurning our attention next to the grants themselves, they are, without an exception, deficient in the requisites prescribed by the established written laws of the country, as indispensable to impart to them validity but rest solely upon the circumstances (and boldly challenging countenance and support here upon those circumstances) that they have originated in practical and temporary usurpations of power; and that, amidst scenes of violence and disorder, have been either maintained or acquiesced in, in defiance of the known public law.

Yet, these avowals with respect to the origin and growth of these claims-avowals which infect and taint their entire being and character, and which ought to consign them to the sternest reprobation-constitute the merits by which they commend themselves to the countenance and support of a tribunal whose highest function is the assertion of law, justice, integrity, order,-the dispensation of right equally to all.

Upon such a foundation, such a pretence, or rather such a defiance of authority, I will not, by an abuse of language, call it even a pretence of right. I cannot consent to impair or destroy the sovereign rights and the financial interests of the United States in the public domain. I can perceive no merit, no claim whatsoever, to favor, on the part of the grasping and unscrupulous speculator and monopolist; no propriety in retarding, for his advantage or profit, the settlement and population of new States, by excluding therefrom the honest citizen of small means, by whose presence and industry the improvement and wealth, and social and moral health, and advancement of the country are always sure to be promoted.