62 U.S.

170
21 How. 170
16 L.Ed. 119

THE UNITED STATES, APPELLANTS,

v.
JOHN A. SUTTER.
December Term, 1858

THIS was an appeal from the District Court of the United States for the
northern district of California.
It was a claim made by Sutter for land in California, under two different
grants.
1. A claim for eleven leagues of land, alleged to be granted to him by
Alvarado, on the 18th of June, 1841.
2. A claim for an additional quantity of twenty-two leagues, alleged to be
granted to him and his son, John A. Sutter, by Micheltorena, on the 5th of
February, 1845.
The board of commissioners confirmed both claims, and this decree was
affirmed by the District Court. The circumstances of the case are so fully
related in the opinion of this court, that it is unnecessary to repeat them.
It was argued by Mr. Black (Attorney General) and Mr. Hull for the
United States, and by Mr. Crittenden, Mr. Butler, and Mr. Walker, for the
defendant in error. The points made in the argument are mentioned in the
opinion of the court, together with remarks upon them, which render it
unnecessary to state the points more particularly.
Mr. Justice CAMPBELL delivered the opinion of the court.

This cause comes to this court by appeal from a decree of the District Court of
the United States for the northern district of California, which affirms a
sentence of the board of commissioners to settle private land claims in that
State, in favor of the appellee, upon a claim to thirty-three square leagues of
land in the valley of the Sacramento river. The record shows that the claimant,

a native of Switzerland, immigrated to the Department of California about the

year 1839, was naturalized as a citizen of Mexico, and with the leave of the
Government formed a settlement near the junction of the Sacramento and
American rivers, which he designated New Helvetia. The country at the time
was uninhabited, except by bands of warlike Indians, who made frequent
depredatory incursions upon the undefended settlements to the south and east
of this place. In two or three years after his arrival, the claimant was
commissioned by the Governor of California to guard the northern frontier and
to represent the Government in affording security and protection to its
inhabitants against the invasion of the Indians and marauding bands of hunters
and trappers, who occasionally visited the valley for plunder. In the year 1841
he commenced the erection of a fort at New Helvetia, at his own expense. It
was surrounded by a high wall, and was defended by cannon. Within this fort
there were dwelling-houses for his servants and workmen, and workshops for
the manufacture of various articles of necessity. There was a gristmill, tannery,
and distillery, attached to the establishment. A number of Indians were
domesticated by him, and contributed to cultivate his fields of grain, and to
defend the settlement from more savage tribes. He was possessed of several
thousands of horses and neat cattle, which were under the care of his servants.
There were collected at different times from twenty to fifty families, and there
were in the course of years some hundreds of persons connected with this
settlement. He is described as having been hospitable and generous to
strangers, and the Governors of California bear testimony to the vigor with
which he performed the duties of his civil and military commission.
2

In March, 1852, he placed before the board of commissioners a claim for

eleven leagues of land, to include his place at New Helvetia, and extending
thence north, which were granted to him by Juan B. Alvarado, Governor of
California, 18th of June, 1841.

In March, 1853, he amended his petition and claimed an additional quantity of

twenty-two leagues, which were granted to him and his son, John A. Sutter, the
5th of February, 1845, by Micheltorena, the Governor of California; this being
the surplus (sobrante) contained within the limits from which his first grant was
to be fulfilled. The espediente submitted to the board, with the grant of
Alvarado, and as a part of it, represents that he is in possession of New
Helvetia, and that his enterprise there had the sanction of the Government, and
had been prosperous; that he had associated with him industrious families; and
that, besides the advantage to himself, he had awakened industry in others, and
had also, by the strength of his company, formed a strong barrier against the
savage Indians. He asks to enlarge his establishment, by introducing twelve
families, and for this purpose solicits a grant of eleven leagues at his

establishment of New Helvetia, from the Governor, together with his powerful
influence before the supreme Government of the nation, that its approbation
might be given. The Governor recognises the truth of the statements in the
espediente, and declares that he has been sufficiently informed that the land is
vacant and suitable for the purpose of the grantee. He grants to the applicant,
'for him and his settlers, the said land, called New Helvetia, subject to the
approbation of the supreme Government and of the Department Assembly,' and
subject to four conditions. The third and fourth relate to the boundaries of the
land and the consummation of the title, and are as follows: '3d. The land of
which donation is made to him is of the extent of eleven sitios de ganado
mayor, as exhibited in the sketch annexed to the proceedings, without including
the lands overflown by the swelling and current of the rivers. It is bounded on
the north by los Tres Picas (three summits) and the 3941'45" north latitude; on
the east by the borders of the Rio de las Plumas; on the south by the parallel
3849'32" of north latitude; and on the west by the river Sacramento. 4th. When
this property shall be confirmed unto him, he shall petition the proper judge to
give him possession of the land, in order that it may be measured, agreeably to
ordinance, the surplus thereof remaining for the benefit of the nation, for
convenient purposes. Therefore, I order that this title being held as firm and
valid, that the same be entered in the proper book, and that these proceedings
be transmitted to the excellent Departmental Assembly.'
4

The first inquiry in cases like this is, has the authenticity of the grant been
established? This was not questioned in the District Court, but in this court the
appellants have denounced, with much force, the evidence as insufficient to
support it. The original issued to the donee was not produced either to the board
of commissioners or the District Court. To account for its non-production, two
witnesses were examined, who say that a paper, purporting to be an original,
and which had the appearance of authenticity, was in the possession of one of
them, as the agent and attorney in fact of the claimant; that this paper was
destroyed by fire with the office in which both lived in the fall of 1851. An
affidavit of the claimant in another case is in the record, in which he says that
the original is lost. Some months before this fire, this paper was recorded in the
county registry of deeds, and the recording clerk affords some evidence to the
genuineness of the paper. It is shown that it had been exhibited in controversies
before courts of justice, and had been examined by adverse claimants and their
counsel, and at other times by interested and inquiring parties.

A grant of the same date, for the same quantity of land, in the same locality,
and issued by the same officer, was reported to the United States by William
Carey Jones, Esq., their agent, as existing in the archives of California in 1850.
In his intercourse with the officers of the California Government, the claimant

asserted his title to New Helvetia, and his assertion was admitted; and accurate
accounts of his location and settlement, and the terms on which they were
made, are to be found in historical and descriptive works published under the
authority of foreign States, upon the testimony of their agents, who visited
California prior to 1845. (Fremont's Rep., 246; 1 Duflot de Moufras Explor. de
l'Oregon and des Cal'as, 457.) Besides this consistent testimony, there is
produced from the archives a draught of a grant corresponding to that produced
from the county records, except in respect to the signatures.
6

The Governor, Alvarado, testifies that this draught was prepared by him, and
from it the original that issued to Sutter was prepared by the secretary, and that
the draught was deposited by his directions, and is now there. The fact that his
name is not attached to this draught does not impair its authority under the
circumstances of this case. (Spencer v. Lapsley, 20 How., 264.)

We agree that the rule of law which requires the best evidence within the
power or control of the party to be produced should not be relaxed, and that the
court should be satisfied that the better evidence has not been wilfully
destroyed nor voluntarily withheld. But the rule on the subject does not exact
that the loss or destruction of the document of evidence should be proved
beyond all possibility of a mistake. It only demands that a moral certainty
should exist that the court has had every opportunity for examining and
deciding the cause upon the best evidence within the power or ability of the
litigant. In every well-regulated Government, the deeds of its officers,
conveying parts of the public domain, are registered or enrolled, to furnish
permanent evidence to its grantees of the origin of their title. An
exemplification of such a record is admissible, as evidence of the same dignity
as of the grant itself. (Patterson v. Wynn, 5 Pet., 233; U. S. v. Davenport, 15
How., 1.) This rule exists in States which have adopted the civil law. In those
States, the deed is preserved in the archives, and copies are given as authentic
actsthat is, acts which have a certain and accredited author, and merit
confidence. The acts thus preserved are public instruments, and all doubts that
arise upon the copies that may be delivered are resolved by a reference to the
protocol from which the copies are taken, and without which they have no
authority. (1 White Recop., 297; Owings v. Hull, 9 Pet., 607.)

When, therefore, a protocol is found in the archives, the non-production of the

original given to the party cannot furnish much cause for suspicion or alarm.
The map to which the grant refers, and which properly forms a part of it, is not
produced from the archives. The testimony of the witnesses is, that there was a
map accompanying the original, and was burned with it. An engineer or
surveyor, (Vioget,) who prepared maps for the claimant, testifies that, in

January, 1841, he made duplicate maps for the claimant of the establishment at
New Helvetia, and surveyed eleven leagues at that place; and that, in 1843, he
traced a copy from one of these, and that copy is produced and filed with the
petition. It is a fair conclusion, from all the evidence, that these maps of Vioget
were presented to the Governor, and form the basis of the grant, and make a
part of it.
9

The secretary, Jimeno, who was examined in reference to an application of the

appellee for an enlargement of his establishment, by the donation of the
sobrante, says that a map accompanied the petition, and exhibited the land
desired; that he made a favorable report upon the petition. The petition for the
surplus, or sobrante, implies there was an existing and operative grant, which
the authorities recognised and respected. With this map, we have no difficulty
in locating the grant so as to include New Helvetia. Without it, the question
would be, whether the general description of New Helvetia should overrule the
particular description by metes and bounds, contained in the third condition; for
it is ascertained that the exact position of the line of latitude which determines
the southern boundary lies twenty miles north of the principal establishment.
But the map shows that the line of the southern boundary is south of New
Helvetia, and is so related to natural objects represented on it as to be easily
determined. Vioget accounts for the error in the designation of the line by the
imperfection of the instruments, and proves that a starting corner was fixed,
and the line traced on the gronnd. This is better evidence of the true location of
the southern line, and conforms to the probabilities of the case. Upon the whole
evidence, we find that the grant and map filed with the petition in 1852, before
the board of commissioners, have been proved. The authenticity of the grant
being ascertained, the question of its validity, as a colonization grant, under the
laws of 1824 and of 1828, remains to be considered. To these laws, the
authorities of California habitually refer as the source of their authority.

10

The law of 1828 authorizes the political chief to grant lands to an empresario
who may wish to colonize; but that the grant shall not be definitely valid
without the previous approbation of the supreme Government, to which the
espediente, with such report as the Departmental Assembly may think fit to
make, shall be communicated. Before conceding lands, the chief was directed
to make inquires that the candidate was embraced by the laws, and that the land
was suitable for colonization, and was not subject to any existing right.

11

The grant to the claimant recites that the Governor had obtained the
information necessary, and that the requirements of the law had been fulfilled.

12

No condition was imposed upon the claimant in respect to the distribution of

the lands among the families to be introduced. The object of the grant, on the
part of the authorities, seems to have been to secure the services of an efficient
and competent officer, in a distant and exposed portion of the province, who
would undertake to give repose and security to the settlements in that region;
and this distribution of lands was confided to him as a trust, and a compensation
for the performance of that duty.
13

The quantity of land was not greater than the colonization laws authorized an
individual to hold, and the only care of the authorities was, that the
consideration of the grant should be secured from the donee. The evidence is
satisfactory that the expectations of the donors were entirely fulfilled. During
the early administration of Alvarado and Micheltorena, the grantee seems to
have had the favor of the political authorities, and in 1844 there was no
objection opposed by them to the enlargement of his enterprise. He was
referred to for information in business of the department, and, in the civil
commotions that preceded the overturn of the power of Micheltorena, he was
the principal stay of his administration; and when called in question,
subsequently, by the enemies of his chief, he said: 'My establishment is situated
between the San Joaquin and Sacramento rivers. It is the point which forms the
fromtier of the Mosebulos Indians, who are those who attack the ranchos and
seize the horses. It is the road of transit from the interior. These reasons, not
less than the great distance from my place to the other settlements, suggested to
me the propriety of building my fort; and in order to do so, I obtained a license
from the Government of the country.'

14

Subsequently to February, 1845, he seems not to have been molested by the

Government of Mexico, but remained the only representative of its power and
authority in the valley of the Sacramento. There was no inconvenience felt by
the failure to complete the grant, and there was no denunciation, by any one, of
the land, for a breach of any condition. When the treaty of Guadalupe Hidalgo
was ratified, he was a citizen of Mexico, in possession of the property
comprehended in the grant, and is entitled to all the guarantees provided by that
treaty for the Mexican population of California. He has submitted his claims to
the tribunals appointed by the United States within the term prescribed, and is
ready to abide their action in reference to them. We know of no law of the
United States which authorizes us to pronounce a sentence of forfeiture for any
act or omission since the date of the treaty. Our opinion is, that this grant is a
valid claim under that treaty.

15

The grant purporting to be issued by Micheltorena at Santa Barbara, the 5th

February, 1845, and submitted to the board of commissioners in March, 1853,
remains to be considered.

16

The original of this grant was not produced. It is not in the list of grants
reported to the Government by Mr. Jones, nor is it found in the archives of
California. It has not been placed upon the county records of Sacramento
county, nor is there any evidence that it was ever produced in any of the
controversies for the land included in it. There is no petition, or reference to the
secretary, or compliance with any other formality prescribed by the law of
1828, preliminary to the issue of grants for lands. The record shows, that in
1843, or 1844, the claimant applied for the sobrante or surplus, and that his
petition was referred to the secretary for further information, and that he
reported there was no objection; that the Governor reserved the subject for
consideration until he could visit the Sacramento valley, and that the papers
were returned to the claimant.

17

In February, 1845, there existed a revolt against the Government of

Micheltorena, in which the principal inhabitants of California participated.
Micheltorena abandoned his capital, and, on his way to Los Angeles, reached
Santa Barbara, where the claimant joined him with a body of 'foreign
volunteers.' The deposition of Castanada, the aid-de-camp of Micheltorena, has
been taken. He says that the claimant presented a petition for a grant to himself
and his son; that he (Castanada) drew the deed, and that it was executed by the
Governor, in his presence, at Santa Barbara; and that he believes that the paper
presented is a true copy. One of the volunteers testifies that the Governor made
a speech to the volunteers, in which he said he had granted to Sutter all the
lands he had claimed, (or asked for,) and that he had issued grants to all the
applicants for lands who had been licensed to settle in the valley of the
Sacramento. He says, about two months after he saw a grant in the hands of
Sutter, which Sutter informed him had been delivered at that time, and that he
thinks the present copy corresponds with the one he then saw.

18

The two witnesses who proved the loss of the other grant testify that the
original of this was destroyed at the same time with the other, and that the
paper produced is a copy of the one destroyed.

19

This evidence is not entirely satisfactory to establish the execution of the grant.
The two witnesses first named speak of a paper they had not seen since 1845,
and one of them was not familiar with the language in which it is written. One
of the other witnesses is largely interested as a grantee of the claimant in the
issue of this suit, and the fourth immigrated to California after the treaty, was
not conversant with the Spanish language, and derived much of his impressions
from the parties who claimed title under Sutter, and of whom he was the
attorney.

20

But we are not disposed to place the decision of the cause upon the deficiency
of the evidence of the execution of the paper, and therefore do not pronounce
absolutely upon it.

21

The decisions of the court show that they have been disposed to interpret
liberally the measures of the Mexican authorities in California, and to view with
indulgence the acts and modes of dealing of the inhabitants, having reference to
the laws of distribution and settlement of the public domain. The circumstances
in which the Governor was placed required that his power and discretion should
not be circumscribed by narrow limits. In a remote province of the Mexican
Republic, he was almost the only representative of the general and common
will of the nation, and he was habitually in collision, sometimes in violent
collision, with provincial feelings, sentiments, and interests. At the time this
grant purports to have been made, he was engaged in a civil war, which, after
having been smothered for a time, had burst forth with increased violence.
Within two or three weeks from the date of the grant, the war was terminated
by the agreement of Micheltorena to abandon the country. He never returned to
the capital, except to prepare for his departure. The laws of Mexico for the
colonization and settlement of the public domian embody a comprehensive and
liberal policy, and the arrangements for their execution denote care and
circumspection on the part of their authors in securing their faithful
administration. They authorize the Governor (politicos gefes) to grant lands to
those who may ask for them, for the purpose of cultivating and inhabiting
them. They require that every person soliciting for lands shall address the
Governor a petition, expressing his name, country, and profession, the number,
description, religion, and other circumstances of his condition, and describing
as distinctly as possible, by means of a map, the land asked for; that the
Governor shall obtain the necessary information whether the petition embraces
the requisite conditions required by the law as to the person and land, and, if
necessary, that the municipal authorities might be consulted whether there be an
objection to making the grant or not; that the grants made to private families or
persons shall not be held to be definitely valid without the previous consent of
the Departmental Assembly, and, in case of their dissent, that it should be
referred to the supreme Government. The definitive grant being made, a
document signed by the Governor shall be given, wherein it must be stated that
said grant is made in conformity with the provisions of the laws in virtue
whereof possession shall be given, and that the necessary record shall be kept,
in a book destined for the purpose, of all the petitions presented and grants
made, with the maps of the lands granted, and the circumstantial report shall be
forwarded quarterly to the supreme Government.

22

The office of political chief of a State or Province has long existed in Spain,

(whence it was derived by Mexico,) and his duties are defined with precision in
the works on the administrative law of that monarchy. The authoritative acts of
this officer assume the form of ordinances and regulations, or of decrees and
judgments. The former relate to the concerns of the Department, and may issue
spontaneously, while the latter always proceed upon a petition. There are
scarcely any formulas prescribed for these acts. But there exist certain rules,
consecrated by usage, sanctioned by reason, and required by justice, some of
which have received the assent of the legislator, and others are official
regulations.
23

The administration has need of information, and hence the political chief may
consult with subordinate authorities and corporations in all business in which
exact information is required of local facts and circumstances, and he is bound
to hear the suggestions of the deputations and provincial assemblies when the
law requires ita rigorous condition, a compliance with which should appear
in the recitals of the disposing part, and the inserting of the customary
formulas, that the act may not be contested for excess of power. Finally, all the
acts of the political chief shall be authenticated by his signature, and it concerns
the good order of the administration that they should be inserted in a special
record. (Colmeiro derecho Admin., secs. 285, 286.)

24

Assuming the statements of the witnesses, Castanada and Ford, to be accurate,

it can hardly be contended that the issue of this grant was an act of civil
administration, or had any reference to the law of colonization and settlement.
At a distance from the capital, in the prosecution of an intestine war against a
band of insurgents, surrounded by a body of foreign volunteers, in whose
fidelity his safety depends, the Governor promises to dispose of the public
domain as a compensation for service, or as an inducement to loyalty. In a few
days this Governor is defeated, vacates his post, and his troops are disbanded.

25

The hostile Government that succeeded to that of Micheltorena have not

recognised the legality of the deeds of the deposed chief, nor did the claimant
(so far as we are informed) attempt to obtain any sanction to his claim, or to
introduce the evidence in his possession among the archives of the Department,
without which a perfect title could never have been obtained. On the contrary,
the record shows that he was a captive in the hands of the enemies of
Micheltorena, and was released, after humble apologies, for his adherence to
the unfortunate chief, and protestations that in future he would be loyal to the
existing authorities. He kept his grant concealed apparently as a dangerous
secret, until an entire change in the political constitution of the country took
place. In our opinion, this was not a valid claim at the date of the treaty of
Guadalupe Hidalgo, and is not entitled to recognition from the United States.

26

It appears from the deeds in the record that the claimant has conveyed nearly all
of his estate in the land included in the two grants, and objection is taken to the
form of the suit. It is contended that the claim should have been preferred by
the grantees of the claimant. We admit the force of the argument in favor of the
objection, and that the dormant interests of persons not parties on the record
may frequently distrub the course of justice.

27

But the contrary practice was sanctioned in Percheman's case, (7 Pet.,) and has
been followed since. It is competent to persons interested in the claim to
employ the name of the original claimant. (United States v. Percheman, 7
Peters, 51; United States v. Patterson, 15 How., 10.)

28

The decree of the District Court is affirmed, in so far as it relates to the grant
bearing date the 18th of June, 1841, and executed by Juan B. Alvarado; and is
reversed in so far as it relates to the grant purporting to have been executed by
Micheltorena, at Santa Barbara, the 5th of February, 1845; and the cause is
remitted to the District Court for further proceedings in respect to the location
of the grant of Alvarado, within the limits set forth in the grant and the
accompanying map on file in the case.

29

Mr. Justice DANIEL and Mr. Justice CLIFFORD dissented.

Mr. Justice CLIFFORD:

30

I respectfully dissent from so much of the opinion of the court as affirms that a
proper legal foundation was laid at the trial for the introduction of parol
evidence to establish the existence and authenticity of the Alvarado grant.
When a concession of land is made by the Government to an individual under
Mexican laws, as in this case, a duplicate copy of the title-paper is required in
all cases to be filed in the proper tribunal for registry; and unless that is done, it
is difficult to see how a legal registry can be made. That duplicate copy is in the
nature of an original paper, and, after registry, becomes the foundation of all
the subsequent proceedings of the Government to perfect the grant in the donee.
It was the duty of the purchaser in this case, in the absence of any original
grant, to produce that duplicate copy, if in existence; and if not, then to account
for its loss. According to the draught presented as a copy, proved by parol
evidence, the grant was made subject to the approval of the supreme
Government and of the Departmental Assembly. It has never been decided that
a grant issued by a subordinate officer, subject to the approval of the supreme
Government, was valid without such approval; and, in my judgment, the
doctrine cannot be maintained without subverting the essential principles on

which every well-regulated Government rests. That grant was never approved,
either by the supreme Government or the Departmental Assembly. Under the
circumstances disclosed in the record, I cannot concur that it is the duty of the
United States, under the treaty, to disturb the possession of the settlers, while it
appears that there is better evidence to establish the right of the donee, if any he
had, to the land described in his concession. On the proofs exhibited, I am of
the opinion that the decree of the District Court should be wholly reversed.
Mr. Justice DANIEL:
31

I fully concur in the above opinion.