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December 1, 1861


The appellee in this case claimed under the title of Jos e Castro, which was rejected by the Supreme Court at December term, 1860, (24 How., 347.) Neleigh and one McKenzie purchased from Castro in 1849 six of the eleven leagues covered by his title, 'to be selected whenever the same shall be located by the proper authority.' McKenzie died soon after the purchase, and Neleigh, by a conveyance from his widow, under a power in his will, became possessed of his interest in the land. He presented his petition to the Land Commission in September, 1852, asking a confirmation of title to his six leagues, and in March, 1853, Castro petitioned in his own name for a confirmation of the remaining five. The reasons for the rejection of Castro's title, which reached the Supreme Court first, are set forth very fully in the opinion of the court delivered in that case by Mr. Ch. J. Taney. Neleigh's claim, after an adverse judgment in the Land Commission, was confirmed by the District Court in October, 1859. From this decree the United States appealed. No new title-papers were offered. The claim rested in this case, as in that of Castro, upon the naked grant produced from the custody of the claimant. But much additional parol testimony was taken, by which it was sought to distinguish the new case from the old. Four new witnesses, including Pico and Moreno, whose signatures were appended to the grant, were called to prove its genuineness. Some additional evidence of occupation was offered, and the testimony of Col. Fremont introduced to show that he had lost a portion of the archives in the mountains of San Juan–among them papers relating to a title to Gen. Castro. A witness was called to show that there was but one Gen. Castro in California in 1846, thereby connecting the lost papers with the title of the present claimant. On the part of the United States no evidence was added to that offered in the case of Jos e Castro.

The opinion of the court was delivered by: Mr. Justice Grier.

Mr. Shunk, of Pennsylvania, for the United States. There is no espediente, note, or other record of this grant in the Mexican archives, and the case rests upon a naked paper produced from the pocket of the claimant in 1849. This objection is fatal. But there is positive historice evidence besides, which proves the paper offered as a title to be fraudulent and antedated. It claims to have issued on the 4th of April, 1846. It is a historic fact, that at that date Pio Pico and Jos e Castro were at open war. The journals of the Departmental Assembly show that they were. Moreno in his testimony in this very case admits the fact, and adds to it the statement that in the spring of 1846 Pico set out with an armed force to drive Castro from the country. Castro asserts in his deposition that during the administration of Pico he recognised no power in California superior to his own, save that of the Supreme Government. He testified his contempt for Pico by seizing the custom-house at Monterey, and withholding from him the public revenues. Yet we are asked to believe that Pico made a grant to this vexatious rebel of eleven square leagues of land just on the eve of a military expedition intended to drive him beyond the bounds of the Department. Such a grant at such a time, considering the angry relations of the parties, is simply incredible.

But the paper produced as a title is fraudulent on its face. Pico styles himself, at its commencement, 'Constitutional Governor of the Department of the Californias.' He bore no such title at the date of this grant, nor did he lay claim to it. The journals of the Assembly show that he did not receive his appointment as Constitutional Governor until the 15th of April, 1846, and was not inaugurated until the 18th. The first grant made by him, in which he assumed his new title, was that to Pedro Sansevaine, dated April 21st, 1846. In every title issued between the time that he became Governor by virtue of his position as First Vocal of the Assembly in February, 1845, and the date of his inauguration as Constitutional Governor in April, 1846, he styles himself 'First Vocal of the Departmental Assembly and Governor ad interim of the Department of the Californias.' Castro's grant is the only exception to this rule. To accept is as genuine we must believe that Pico, without any conceivable reason, and in this solitary instance, assumed a title to which he had no claim, and recited an appointment which he had not received. But it is easy to conceive, if we adopt the theory that this is an ante-dated paper, that Pico, years after the conquest, in concocting an ante-dates grant, should forget which of his two titles he was in the habit of using at the time of the false date, and stumble on the wrong one. We have his own word for it in this case, that he had forgotten when he became Constitutional Governor. We have, besides this, the admission of Moreno, that he did not sign the grant until May, although it pretends to have issued in April. It is, therefore, a paper entirely unsupported by archive evidence, contradicted by history and the public records, fraudulent on its face, and ante-dated by the admission of the officers who made it.

The only occupation proved in this case is a military occupation in 1844, two years before the date of the pretended grant, and which lasted but a few months, and a settlement made in 1849, after the discovery of gold had made the land a tempting prize for speculation and fraud.

There is nothing to distinguish Neleigh's case from that of Jos e Castro, except that the fraud only suspected by the court in the one case is made absolutely plain in the other.

Mr. Reverdy Johnson, of Maryland, and Mr. Gillet, of Washington, for the appellee. The absence of the espediente and other record evidence in this case is accounted for by the testimony of Colonel Fremont. Papers relating to a title to General Castro were lost among the mountains. We cannot be expected to produce records the loss of which we have plainly and directly proved. Moreover, the grant recites that all the necessary steps required by law as preliminaries to a grant have been taken. Recitals in a grant by a public officer are prima facie evidence of the fact recited when they relate to the subjectmatter of the grant. Fremont's Case, (17 How., 558;) Reading's Case, (18 How., pp. 8, 9;) Peralta's Case, (19 How., 343;) Doe vs. Wilson, (23 How., 457.) The recording of titles granted being the duty of the officer after the grant was made, if omitted by him cannot defeat the title of the grantee, nor create a suspicion against it. If the neglect of the Governor to remit the papers of a grantee to the Assembly for confirmation could not defeat or affect the rights of a grantee, as has been held by this court, Reading's Case, (18 How., p. 7,) certainly a similar neglect to record or preserve papers could not defeat or affect him. When a grant is once made, it can only be defeated by the act or omission of the grantee, and no default of a public officer can change his rights or subject them to a doubt. The grantee was entitled to receive the grant and retain it, and this is evidence in favor of his title until overthrown by proof by those questioning it. The grant itself is not secondary but original evidence, and the best within the power of the party to produce. It has always been held that the production and proof of what purported to be an original grant made by an authorized official was sufficient, and no additional record evidence from the archives was held to be necessary, but whoever sought to defeat the effect of this prima facie evidence must do so by competent legal proof. Moreover, this case conforms to the propositions laid down in Castro's Case, (24 How., 347,) in relation to the introduction of secondary evidence. The record shows that at a former time there was a grant recorded in the usual manner in the Secretary's office; that some of the books and papers have been lost and destroyed; that there was actual possession within reasonable time, and a survey by the owner, and that this actual possession was as early as Fremont's, was delayed for the same reason, and the want of a plat and judicial action in making a survey excused in the same way. The case differs widely from that of Castro both in the amount of the testimony and the matters to which it relates. The court cannot reject this claim without repudiating a long line of decisions which have come to be regarded as the law of the land.

Mr. Black, of Pennsylvania, in reply. The title, properly so called, and the written documents connected with it, are in precisely the same condition now that they were in when this court examined them before in the case of The United States vs. Castro. It is a naked grant, without an espediente found among the archives, and without record evidence of any kind to show that it ever was issued or even applied for. This court has decided in certainly not less than twenty-five cases that such a title cannot have its approval. With the exception of the one judge whose commission is dated during the present term, every member of the court has committed himself and his brethren in his own language against the confirmation of such claims. If the ingenious arguments of the claimant's counsel, that recitals are evidence, that records are lost, that grantees must not be affected by the omissions of public officers, were new, we might reply to them at length, but they have been made and answered and overruled a score of times already, and the process need not be repeated again.

The decision in Castro's case is conclusive on the court as a judicial precedent from which there can be no departure with safety. It is also technically binding as a determination of the same question between the same parties or their privies.

But, passing that, what is the value of the additional evidence found upon this record? Does Moreno add anything even to the moral strength of the case? He is notoriously unworthy of belief. Pico's testimony is on the face of it false. Colonel Fremont is, of course, incapable of making a wilful misstatement; but what does he say? That he lost papers in the mountains, and one of them, he thinks, had reference to a title of General Castro's. But whether it was a title for eleven leagues or one league, for land on the San Joaquin or the Sacramento, in Upper or in Lower California, he does not pretend to know; nor does he say whether the paper he saw was a petition, an informe, or a grant; whether it was signed by Figueroa, by Alvarado, Micheltoreno, or Pico, or by anybody at all. It is preposterous to make a title out of such evidence as this, even if parol evidence were, under any circumstances, admissible.

But there are three facts in this case which were not shown to the court by the record in Castro's case, and which do prove most incontestably that the grant is a mere fabrication. These facts are: 1. That at the pretended date of the grant, Castro was in rebellion against the authority of Pico. 2. That it is attested by a person, as Secretary, who at that time was not Secretary. 3. That it purports to be made by Pico as Constitutional Governor at a time when he had not assumed the duties or the title of that office.

Each one of these facts considered separately would make it extremely improbable that a grant was made to Castro on the 4th of April, 1846. Men in office do not bestow such favors or any favors at all upon their enemies and the enemies of the Government they represent. Pico and Castro were not then in communication. No petitions passed between them. Castro refused to acknowledge Pico as Governor, and he was known to Pico only as an insolent disturber of the public peace, and a robber of the public money. They addressed one another only in the language which could be uttered from the mouths of their muskets. To find a paper signed or countersigned by an officer who, upon investigation, appears not to have been in office at the time, would anywhere be regarded as about the strongest evidence of forgery that could be produced. When you see that the Governor who makes the grant is described as holding an office which he did not hold at the time, and speaking in a style totally different from that used in all cotemporaneous documents, you are forced to the conclusion that the paper was not made when it bears date.

But it is a rule of circumstantial evidence, which the good sense of every reasonable man approves, that the force of independent criminating facts does not depend so much on their weight as on their number. If you have two, consider them separately, and they may not weigh a feather; but unite them together, and they press upon the accused with the weight of a mill-stone. Two or three such facts as these, each independent of the other, could not exist by chance in the case of an honest grant. In a charge of murder it is suspicious to find the knife of the accused party lying near the body of the victim. It is demonstration if the purse of the deceased be found in possession of the same person. If, in addition to this, the party who owned the knife, and had the purse, was seen with bloody hands running away from the place of the murder about the time it was committed, who could stand up to defend him?

The want of evidence in this case makes it had enough for the claimant–bad enough to insure the rejection of the claim. But when you see that it is also demonstrated to be a fraud by circumstantial evidence so irresistibly strong as that which appears on this record, there is no room left for doubt, nor no grounds for an argument.

Neleigh filed his claim before the board of Land Commissioners on the 3d of September, 1852. It was for six leagues of land in Mariposa county, being part of eleven leagues said to have been granted to Lieut. Col. Jos e Castro by Pio Pico, late Governor, on the 4th of April, 1846. The deed from Castro, dated 8th of June, 1849, purported to convey to Bernard McKenzie and Robert Neleigh six of the eleven leagues, 'to be taken where the grantees might select.' McKenzie's interest was, afterwards, vested in his co-tenant by a conveyance from his administratrix. The commissioners confirmed the claim. But as the grant to Castro had never been surveyed or located, and, like that to Fremont was vague and uncertain as to its boundary, it might be located on either or both sides of the San Joaquin river. Their decree, therefore, did not ascertain what land was confirmed, ...

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