IN THE District Court of the United States For the Northern District of California. ANDRES CASTILLERO vs. THE UNITED STATES. ON appeal from the Decree of the United States Commissioners to asceltain and settle the private land claims in the State of California. BRIEF OF The claim presented to said Commissioners, and now before this Court for adjudication on appeal, embraces two objects; First: A Mine of quicksilver, or cinnabar, situated in Santa Clara County, and known as the "New Almaden Mine," including three thousand varas of ground, measured in all directions from the mouth of said mine. Second: Two square leagues of land, situated upon and surrounding said mine. 1 It is proposed, in this Brief, to consider but one question involved in this case, to wit: The jurisdiction of said Board of Commissioners, and of this Court, over said claim, under the Act of Congress of March 3d, 1851, entitled "an Act to ascertain and settle the private land claims in the State of California." The first section of said Act, as well as its title, declares its object to be that of ascertaining and settling the "private land claims" in the State of California, and the eighth section of said Act, in accordance with that object, requires that each and every person "claiming lands in California by virtue of any right or title derived from the Spanish or Mexican Government," shall present his claim to said Commissioners, &c. The subject of adjudication, therefore, submitted by said Act. to said Commissioners, and to this court on appeal, is a private “claim” to “land," but the nature of such claim, as, likewise, the estate or interest, in the land, which the claimant must possess in order to be heard, are in no manner specified, or limited. On the contrary, they are wholly unlimited; and therefore, it would seem evident from the mere language of the Act, that a claim to land by virtue of any right, or title, legal or equitable, and whether acquired for the purposes of extracting the minerals therefrom, or as a site for a dwelling, or for agricultural or grazing purposes, is equally within said Act, and within the jurisdiction of said Commissioners and of this Court. So, likewise, it would seem, that a claim, derived from either of the former governments, to any estate, or interest, in land, whether a conditional, or an indefeasible estate, whether for term of years, for life, or in fee, is equally within said Act, and within the jurisdiction of said Commissioners and of this Court. The manifest intention of said Act, and of the proceedings authorized thereunder, would seem to be to ascertain and settle all private claims to land, of every nature, description, and ex tent of duration, which had their origin under either of the former governments. The Counsel for the United States contends, that though a mining title may be property, it is not "that species of property called a private land claim, and submitted to the jurisdiction of the late Board of Commissioners, and of this Court, by the Act of Congress of March 3d, 1851." If this be so, what becomes of all Mining Titles in California vested under the Mexican dominion? More than twelve years have elapsed since the final ratification of the treaty of Guadalupe Hidalgo, since the definitive cession of Upper California to the United States, and yet, the only legislation of Congress under which these Mexican Mining Titles can seek protection is to be found in the provisions of the Act of March 3d, 1851. The intent exhibited by the comprehensive language of the eighth section of that statute, herein before alluded to, is made still more manifest by the penal words of its thirteenth section, to wit:-" All lands, the claims to which have been finally rejected by the Commissioners in manner herein provided, or which shall be finally decided to be invalid by the District or Supreme Court, and all lands the claims to which shall not have been presented to the said Commissioners within two years after the date of this Act, shall be deemed, held and considered as part of the public domain of the United States," etc. Can it be presumed, will it be intended by this Honorable Court, that the United States, in violation of National Law, and in direct-despite of express treaty, designed, at the time of the passage of the Act of March 1851, and for twelve long years, have maintained the base intent, of imposing a forfeiture upon all Mexican Mines, of considering them, in the pregnant language of said thirteenth section, "part of the public domain of the United States," of despoiling their proprietors of all their rights, of administering to them, not the gracious promises of the Treaty, not the well established principles of National Jurisprudence, not even the Law of Civilized Conquest, but without investiga tion, without trial, without offence, pronouncing against them the stern sentence, meted to Shylock: "Thy lands and goods Are, by the laws of Venice, confiscate Unto the State of Venice." As to what constitutes "land" within the meaning of this Act of 1851, it is admitted that the Common Law must be our interpreter, but as to what was embraced under the grant of a "Mine," made during the time of the Mexican dominion in California, and as to the estate or interest which was acquired therein, and in the surface and soil thereof, by such grant, the Spanish and Mexican laws must be our guide. The question, therefore, in this case, which we have proposed to consider, seems to narrow itself down to little more than the point, whether the claim presented, embracing, as it does, both a Mexican "Mine" and a " Colonization Grant," is a claim for land, or for any estate or interest in land. As to the "Colonization Grant," it is conceded that if established by sufficient proof, it is within the Act, and within the jurisdiction of said Commissioners, and of this Court. The only point of controversy, therefore, is as to the “ Mine." As we do not propose to discuss the questions of fact which may be made, concerning the discovery, registry and judicial possession of this "Mine," and the subsequent confirmation of the acts of the local authorities by the Supreme Government of that Mexico, we shall assume, for the purposes of our argument, all those acts took place as alleged by the claimant, and were so far regular and valid, as to vest in said claimant as full and perfect a right as could be acquired to a " Mine" under the Mexican mining laws. The question still remains, did those acts of registry, judicial possession, aud subsequent confirmation, any or all of them, vest in him any title to, or interest in “land”? In arriving at a conclusion upon this question, it will be necessary for us to consider I. What was a "mine" under Mexican mining laws, and of what composed, and what were the rights both to the mineral and to the surface and soil, which its acquisition, according to those laws, conferred? II. Were those rights, so acquired, impaired or changed, and if so, to what extent, by the conquest of California by the United States, and its subsequent erection into a State and admission into the Union, and by its abolition of the Mexican laws, and adoption of the English Common Law? First. The mining, as well as other laws of Mexico, were derived from Spain, under whose dominion, from the time of its discovery and settlement until its independence, it remained. In order, therefore, to ascertain the Mexican laws in regard to mines, it will be necessary to first examine those of Spain. From the earliest period of authentic Spanish history, it appears that the mines of that country have constituted one of the principal, if not the chief, source of its wealth. Those mines were worked as early as the time of the Carthagenians and RoAfter the flood of barbarism had overspread the Roman world, at the downfall of the Western Empire, industry of all kinds, except the tending of flocks and herds, gave place to arms, and was neglected for several centuries. mans. When at length the Spanish monarchy had become somewhat consolidated, and industry began to revive, attention was again turned to the mines, as a principal source of wealth. But the necessities of the Crown, and the scantiness of its revenues, as well as, perhaps, the example of other sovereigns, caused it, að early at least as the year 1383, to be established as a principle |