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decided: November 15, 1897.



Author: Brown

[ 168 U.S. Page 212]

 MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The principal question urged upon the attention of the court in this case is whether, under the laws of Mexico, as they existed in 1840, it was within the power of a prefect to make a grant of public lands.

In endeavoring to ascertain what were the laws of Mexico at any particular time, of which we are bound to take judicial notice, Fremont v. United States, 17 How. 542, 557; Romero v. United States, 1 Wall. 721, we are somewhat embarrassed by the frequency with which the government was changed -- usually by revolutionary violence -- between the time the Republic gained its independence in 1821 and the treaty of Guadalupe Hidalgo in 1848, under which the northern provinces of Mexico were ceded to the United States. These changes were sometimes accompanied by decrees annulling the acts of previous governments, canceling grants, and putting new regulations in force with respect to the disposition of public lands. That these difficulties are of long standing is evident from the comments of Chief Justice Marshall in the case of Soulard v. United States, 4 Pet. 511, in which the court announced itself as unable to form a satisfactory judgment by reason of its inability to obtain proper information with regard to the laws and principles upon which the transfer of Spanish titles depended, and therefore postponed the final disposition of the case until such information could be obtained.

In view of this and similar difficulties, this court, as early as 1832, in United States v. Arredondo, 6 Pet. 691, laid down as a general proposition that the grant itself was prima facie evidence of its own validity, and that it would be presumed to have been regularly issued until the contrary appeared, or such reasons were offered for doubting its authenticity as were sufficient in law to rebut the legal presumption. To

[ 168 U.S. Page 213]

     the same effect are United States v. Clarke, 8 Pet. 436; and United States v. Percheman, 7 Pet. 51; Strother v. Lucas, 12 Pet. 410, 437; Reynolds v. West, 1 California, 322, 326; Jones v. Garza, 11 Texas, 186, 207.

The courts of California have carried this principle so far as to hold, though apparently with some fluctuation of opinion, that a grant of a pueblo lot made by an alcalde raises a presumption that the alcalde was a proper qualified officer; that he had authority to make the grant, and that the land was within the boundaries of the pueblo. Reynolds v. West, 1 California, 322; Cohas v. Raisin, 3 California, 443; Hart v. Burnett, 15 California, 530; Payne v. Treadwell, 16 California, 220; Leese v. Clarke, 18 California, 535; Donner v. Palmer, 31 California, 500.

In considering their methods of disposing of public lands, this court has had frequent occasion to uphold the validity of grants made by the Governors of the Spanish and Mexican provinces, who appear to have been sometimes also called "Political Chiefs." Indeed under the regulations for the colonization of the Mexican territories of November 21, 1828, the political chiefs were expressly authorized to grant the public lands of their respective territories. Reynolds' Land Laws, 141; United States v. Workman, 1 Wall. 745, 761; Hornsby v. United States, 10 Wall. 224, 231; Vanderslice v. Hanks, 3 California, 27; Leese v. Clarke, 3 California, 17; Leese v. Clarke, 18 California, 535, 546; but see Jones v. Garza, 11 Texas, 186. A similar power seems also to have been vested in the Spanish intendance. Reynolds' Land Laws, 59, 60; United States v. Clarke, 8 Pet. 436, 452.

Prefects were functionaries well known in the Roman law, and under the empire were clothed with extensive powers, both judicial and administrative. With the decline of the empire they seem to have lost their importance and to have finally disappeared; but, after remaining in abeyance for some hundreds of years after its fall, the office was revised in the eighth year of the French Republic, (1800,) and bestowed upon the heads of the departments into which the country had been divided by the National Assembly in 1790. In the performance

[ 168 U.S. Page 214]

     of their duties they were aided by a council of prefecture. The prefect was charged with the administration of local affairs, and was practically the representative of the central government in public matters. The title was carried into several States, whose legislation was framed upon the model of the Code Napoleon, but, until the establishment of the Republic, was apparently unknown in Mexico. It seems to have been recognized, however, prior to 1836, since by the constitutional law or decree of December 29 of that year, denying the powers of the president and governors, there was given to the latter the authority "to appoint the prefects, to approve the appointment of the sub-prefects of the department, to confirm that of the justices of the peace, and to remove any of these officials." Reynolds, 205.

By the law of March 20, 1837, for regulating provisionally the interior governments of the departments, it is provided, by article one, that "the interior government of the departments shall be in charge of the governors, departmental councils, (juntas,) prefects, sub-prefects, common councils, alcaldes and justices of the peace"; that it shall be the duty of the governors to appoint the prefects, etc. The power of the prefects is thus defined: Article 77; "They shall regulate administratively and in conformity with the laws, the distribution of the common lands (tierras communes), in the towns of the district, provided there is no litigation pending with regard to them, the right being reserved to the parties in interest to apply to the governor, who, without further ...

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