“ It might, I think, be demonstrated, that a rule which supposes all rights of a Sovereign, with respect to territory subsequently conquered, to cease as against the conqueror, not when war is declared, but when the war is prosecuted with the object of conquest, when expeditions are fitted out for the purpose, and when the conquest is 'imminent and inevitable,' is not susceptible of practical application as a rule of international law. ”

“ To say, then, that all muniments of title belong to the United States as owners of land, and cannot be noticed by the Courts until commended to them by the Political Department of the Government, is to assume the very point the suit was instituted to determine; for the question is-does the United States own the land? The claimant avers that she does not, and never did, and in support of his claim he produces muniments of title which, on the very principle contended for, belong to him and not to the United States, for they are the muniments of title to his own land. ”

“ How shall we explain the absence, throughout James Alexander Forbes' voluminous correspondence, of any reproach, or even regret, that the forgery had been so clumsily effected as to leave the Act of Possession 'precarious and illegal;' how account for the allusions to the documents of registry in judicial proceedings, official letters of Forbes to the Alcalde, and the entire absence of any accusation or hint of forgery, when Walkinshaw, who must have been in the secret, was struggling so fiercely with Forbes for the acquisition of the mine? ”

“ It is admitted that a mining right may be acquired under the laws of Spain and Spanish America by one man upon the lands of another; but he acquires no title thereby to the land itself. The mines are public property and the Sovereign can exercise the right of eminent domain by taking so much private property for that public use as may be necessary to work them, providing that just compensation be made to the owner. The laws of Spain and Mexico embody on this subject precisely the principles of our own State and Federal Constitutions. ”

“ The men who had avowed in their own letters to one another, their intention to forge a title for the property in contest, and to retain possession of it 'at all costs, and at every hazard,' are not the persons who can excite sympathy, or place themselves in the interesting predicament of injured and ill used gentlemen, by showing that the government doubted their integrity, and refused them unlawful opportunities to consummate the fraud they were known to be contemplating. ”

“ If the act of possession be genuine, and the Castro petition be ante-dated, the conduct of the parties seems to me inconsistent, absurd, and inexplicable. But if the act of possession was itself fabricated in 1848, and did not exist at the date when the Castro petition was fabricated, the acts of the parties are equally incomprehensible. Of what use could it be to have a petition for an increase of pertenencias included among archives which contained no registry or denouncement, or grant of any pertenencias whatever? ”

“ When it is once ascertained that a witness is capable of committing perjury, all he swears to is rejected as false. In reason and in law the rule is the same when a party is found to be capable of forgery: the papers not known to be fabricated must share the fate of those which are proved to be spurious; for every thing is corrupt that comes from a corrupted source. Falsus in uno, falsus in omnibus.
The way in which these letters came out has been much commented upon. Their genuineness being admitted, it makes no difference how the Government got possession of them. ”

“ The registration of a mine was a simple proceeding, of which the principal objects were to apprise the Government of its existence, so that it might secure its portion of the produce-to given an opportunity to other persons to show a better right than that of the alleged discoverer or denouncer, and to subject the latter to the salutary rules of the ordinance as to its working and preservation. When the discoverer had made known his discovery in the manner prescribed by law, and dug his pit of possession, the law itself gave him the title. ”

“ Between the years 1846 and 1851, the title to this mine was in constant dispute. Half a dozen suits were heard and determined by the local courts, in which Castillero's right was asserted on one side and denied on the other. Every body living near, whether in public or private life, must have been excited and interested in the clamorous controversy which was so long and so fiercely carried on. Yet this espediente on which, if it existed, all these contests must have turned, was found by no officer, seen by no witness, and produced by no party. ”

“ It has seemed to me, however, that the principle of that decision relates exclusively to the case of disputed boundaries, and that the distinction is clearly drawn between that case and one like the present; that between them the obvious difference exists that the former is a case of 'original claim to territory,' while the other is 'one of actual conquest.'
It is said, on the part of the United States, that if a belligerent can, after a declaration of war, grant any portion of his property, he can grant the whole, and thus might, by granting himself away, escape responsibility. ”

“ If this affidavit is believed, it puts beyond controversy the fact that this espediente was not among the archives in December, 1850, and proves conclusively that it had not been there a month when General Halleck found it. And who shall dare to deny the truth of the affidavit? Will the claimants attempt to sacrifice upon the altar of the false god they worship the character of a man who has served them so faithfully, by asserting the want of all truth in a statement to which he pledged his oath for their benefit? ”

“ Gamboa considered the discoverers of mines as entitled even to greater encouragement than the inventors of useful arts. Heathf. Gamb. 1, p. 259. And in all the Mining Ordinances of Europe, the right of the discoverer is recognized by the promise of a grant of the mine as a reward for the discovery.
In the Sala Mejicana, vol. 2, p. 58, discovery is declared to be one of the modes of acquiring mines, and it is recognized as a species of occupation, and as constituting a source of title, like the finding of a buried treasure, precious stones, and the like. ”

“ But in a mining title there are no separate papers. The first representation with which the miner presents himself before the Deputation is returned to him after its substance is transferred to the registry. The registry, pure and simple, constitutes not only a necessary party but the whole of the title, the beginning, middle and end of it. No one can read the ordinance and fail to see that the assertion of an espediente contradicts the assertion of a legal title.
But let that pass. What did Castillero do to give him or his grantees a decent pretext for claiming the mine? ”

“ No one, I think, who examines the Ordinances and the Commentaries of Gamboa with care, can avoid the conclusion that the mine-owner, by denouncement and registry, and the delivery of the possession to him, obtained, under the Mexican law, a right to and property in the mine, and that the mine so acquired consisted of the very substance of the minerals of which it was composed-was a corporeal hereditament like a mine or stratum of ores in the English law, and was land in the strictest and fullest sense of the term. ”

“ As every war in which the country may be engaged must be regarded by all branches of the Government, and even by neutrals, as a just war; and as nations can readily cloak a spirit of rapacity and aggression under professions of justice and moderation, it is at all times easy, should our country be actuated by such a spirit, to declare an aggressive war, to be undertaken in self-defense and an intended conquest to be desired only as a compensation for past or security against future injuries. ”

“ The fact is proved by the record and not denied by any body, that Larios and Berreyesa had titles, under which they were in possession for many years. Could the Government or any officer of the Government take away their rights and vest them in Castillero? No; even a despot cannot do that without breaking up the foundations of society. It is the crime for which Ahab's family was doomed to be extinguished and his wife eaten by the dogs. It is not less an offence against Mexican than it is against American law. The proof is conclusive, that Castillero knew this to be private property. ”

“ All writers, great and small, concur in the opinion that there can be no pretence of title without it.
What is a registry? That is easily answered. We need not resort to translators. The word is the same in Spanish and in English. Both derive it from the Latin-liber rerum gestarum-which the Roman lawyers contracted into registrum. To register a thing is to write it in a book; and this, Gamboa says, is especially required in the case of a mining title to preserve it from the danger of simulation, defacement, fraud and loss to which separate papers would be exposed. ”

“ It was a common practice to grant gratuitously eleven leagues of good, level farming land to any one who would undertake to build a house and live upon the tract. This grant embraced only two leagues and was on an uninhabitable mountain. Mines, strictly speaking, were never granted. The mere discovery was a meritorious basis of right. It gave an equitable title, ipso facto. The forms of registry or confirmation, were indeed necessary. But they could not be justly denied to the first discoverer, if he merely asked for their observance. ”

“ It is true, that after the military occupation of California, and after our arms had been everywhere successful, and perhaps at the commencement of hostilities, the Executive and the nation may have confidently anticipated that by the treaty of peace we would acquire California. As Mexico was known to be impoverished, and distracted by civil dissensions, it was obvious that the only indemnity she could afford us for the expenses of the war was the cession of a portion of her territory. ”

“ If it ceased before the actual conquest and displacement of the Mexican authority, it must be because the determination of the United States to effect the conquest, and the making preparation to carry out its determination, gave to the latter some inchoate or inceptive right to the territory subsequently conquered, and the title consummated by the conquest relates back by a kind of fiction to the date of its inception.
We have been unable to discover any trace or intimation of such a doctrine in any writer on the laws of war.
The rights derived from conquest are derived from force alone. ”

“ Truly, the man who acquires a piece of land, gives not the least labor nor advances the smallest capital in consideration of the riches (las riquezas) which it may conceal. He examines its fertilty, its situation, its extent, and all the circumstances which determine its value as a building-lot or agricultural land, but he does not take into account the mines which, perchance, it may conceal in its bowels. ”

“ The United States, in consenting to be sued, and in submitting her rights to the determination of Courts, has abdicated, pro tanto, her prerogative as a sovereign, and appears before the Court precisely as any individual who asserts an ownership in land. ”

“ In 1850, without the papers before him, or being able to specify their precise dates, General Halleck testified to his belief that the grant was made before the declaration of war. What a shocking anachronism! Are we contending with men of common sense, or with men merely seeking a pretence for confiscation, and willing to cover the wrong by any paltry subterfuge? ”

“ Where land was gratuitously distributed in tracts from one to eleven square leagues in extent, the indemnity which experts would have awarded for the occupation of a few rectangles of the surface, two hundred varas long by two hundred wide, would have been little more than a nominal sum; and to defeat the meritorious title of a discoverer, because under such circumstances the indemnity was not paid, would seem unjust and absurd. ”

“ But when the United States consent to appear merely as a suitor in the Courts and to litigate her rights with an adverse private claimant, the rights of both must be determined by the application of the ordinary rules which prevail in actions between private individuals. ”

“ The United States do not claim to have acquired the ownership of any other property than the public property of the enemy, nor could they justly have demanded that Mexico should assent by the treaty to the confiscation of any property the right to which was vested in private individuals. ”

“ Under laws which, with occasional modal variations, had existed for centuries, and were in force in California when we acquired that country, any person discovering a mine, whether in public or private land, was rewarded with a perpetual property therein and ownership thereof, and of an easily ascertainable amount of surface, immediately above the mine, called pertenencias or mining spaces. The fact of discovery was to be represented to the proper local authority, and that tribunal was required to register it, to perform certain other acts, and to give the discoverer immediate possession. ”

“ We know from the record that a title dated previous to the war was asserted and sworn to by them, or some of their agents,-and that title is now wholly abandoned as a thing which never existed,-but it is not certain that somebody else might not have sworn to it also, if the testimony had been taken where no punishment could be inflicted upon perjury, and no cross-examination could expose its character. They may have the admission as frankly as they wish it, that we never trusted them ”