Edward Douglass White

“ By the constitution, New Mexico was a territory. The grant itself, as we have seen, discloses this to be the fact, and describes the lands as those of the nation. Whatever may be the foundation for the claim that the states of the Mexican nai on, in virtue of their autonomy, succeeded to the right of disposition of the public lands of the nation, as to which we express no opinion, clearly such power did not obtain as to the territories ”

“ But it is earnestly and elaborately argued that as, by the constitutive act, New Mexico was recognized as a state of the federation, the congress could not subsequently constitutionally reduce New Mexico to the rank of a mere territory, and that this court, in disposing of this case, must therefore disregard the Mexican constitution, and hold that, as a state, New Mexico succeeded to the sovereignty and dominion of all the lands within its borders which formerly belonged to the king or crown of Spain ”

“ In this condition of the record, there can be no reason suggested for our entering upon an inquiry as to whether New Mexico might, in 1825, have rightfully insisted that it was a state, and not a territory, of the federation; nor are we at all concerned with the question as to what, if any, rights in public lands, were vested in a Mixican state in the year mentioned. The grant upon which, if at all, petitioner was entitled to relief in the court below, was not made by state officials, did not purport to be a grant from a state, and was manifestly intended not to be such. ”

“ One-half of the public and crown lands of the monarchy, excepting town commons, were reserved, in article 6, for lucrative alienation; while provision was made in clause 9 et seq. for disposition of the remaining public and crown lands, or of the farming lands of the municipal domain, in small tracts, the grants to be made by the common councils of such towns, subject to the approval of the provincial deputation. ”

“ The just title required did not include a title which was absolutely void, and derived from one who, by operation of law, had no power whatever to dispose of the property. Partidas 3, Law 11, tit. 20. In speaking on these provisions of the Partidas, Schmidt, in his Civil Law of Spain and Mexico (page 290) , says: 'It is also necessary that the contract by which the property was acquired should be a valid contract. Hence a thing acquired by purchase, donation, or any other contract made with an insane person cannot be acquired by prescription ”