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Rancho Los Trigos."

where conveyances by deed or will become operative upon some event subsequent to the execution of the deed or the death of the testator. In this case, as to the lands for the first twenty miles, there is no suggestion of even such a postponement of the operation of the act.

I am not called upon in this connection to decide whether the statute conveys a fee-simple immediately, or upon condition, and successively as to successive parts of the land. All that is necessary is to say that the statute shows that in either case Congress has chosen to be the sole representative of the United States in making this transfer, and that all necessary limitations and clauses of such transfer are to be found in the statute alone.

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Private land-claim for the rancho "Los Trigos," in New Mexico, was confirmed (as No. 8) by the act of June 21, 1860, chap. 167, but which act made no provision for the issuing of a patent to the confirmees. The latter, however, contend that they are entitled to have a patent issued to them therefor, first, by virtue of the provisions of art. 8 of the treaty of Guadalupe Hidalgo, (9 Stat., 929;) and, second, by virtue of the provisions of section 2 of the act of March 3, 1869, chap. 152. Held that the treaty provisions referred to do not make it obligatory upon the Government to issue patents in such cases; but that, under the provisions of the act of March 3, 1869, the confirmees are entitled to a patent for the claim mentioned.

February 21, 1874.

SIR: I have examined the question presented to you for decision by the appeal of the legal representatives of Francisco Frajillo, Diego Radillo, and Bartolomo Marquez from the decision of the Commissioner of the General Land-Office

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of April 1, 1873, refusing to issue to them a patent for the rancho known as "Los Trigos," in the Territory of New Mexico, confirmed as No. 8 by the act of Congress approved June 21, 1860, (12 Stat., 71.)

The act of confirmation does not provide for the issuing of a patent, and no claim for one is set up under it. It is insist. ed, however, that the preparation and delivery of such evidence of title is made obligatory upon the Government, first, by the provisions of article 8 of the treaty of Guadalupe Hidalgo, (9 Stat., 929;) and, second, by the provisions of the 2d section of the act of Congress approved March 3, 1869, (15 Stat., 342.)

That portion of the eighth article of the treaty material to the present investigation is as follows, viz:

"In the said territories property of every kind, now be longing to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States,"

In my opinion, the plain meaning of this article is that all these non-resident Mexicans, their heirs and Mexican assigns, shall be forever protected in their property of all kinds in said territories, and shall enjoy, with respect to it, the same guarantees as shall be enjoyed by American citizens owning the same class of property. No discrimination shall be made in favor of Americans and against Mexicaus, with respect to any kind of property. The same ample guarantees shall be extended to each. Neither shall be better protected than the other. But the appellants herein go further and insist that a Mexican owner of one class of property is entitled to guarantees equal, not to what an American would have in the same class, but to what an American is entitled in another and a different class; and that because an American, under the pre-emption or donation laws of the United States, is entitled to a patent for his claim, a Mexican is also entitled to a patent for a Mexican grant. This position is, in my opinion, utterly untenable, and is not justified either by the letter or the spirit of the treaty. Its effect might be to defeat the manifest object of the national compact, by rendering guar

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antees to Mexicans and Americans unequal, with reference to this very class of property.

The peculiar phraseology of the treaty is such that the property rights of an American are not to be measured by those of a Mexican, but vice versa.

Under the construction contended for, therefore, Mexicans could claim, by reason of American rights in certain other property, the right to patents for Mexican grants, while American purchasers of the same grants would be left without similar guarantees, being protected by neither treaty nor statute. Can it be seriously contended that this is the legal effect of the eighth article of the treaty?

The true criterion by which to determine the guarantee to be given a Mexican property-owner under the treaty is the guarantee which by the laws of the land is given to an American owner of the same class of property under the same circumstances. In my opinion, this and nothing more is required or justified by the language used. If American assigns of Mexican grantees are not by the laws of the United States entitled to patents for Mexican grants, then the Mexican grantees and their heirs and Mexican assigns are not so entitled under the treaty.

The 1st section of the act of March 3, 1869, confirms by number five private Mexican grants in the Territory of New Mexico. "Los Trigos" is not one of the number, having been previously confirmed by the act of June 21, 1860.

The 2d section of the act of 1869 is in the following words, viz :

"And be it further enacted, That the Commissioner of the General Land-Office shall, without unreasonable delay, cause the lands embraced in said several claims to be surveyed and platted at the proper expense of the claimants thereof; and, upon the filing of the said surveys and plats in his office, he shall issue patents for said lands in said Territory, which have heretofore been confirmed by acts of Congress and surveyed, and plats of such survey filed in his office as aforesaid, but for which no patents have heretofore been issued."

On the 6th day of September, 1870, your immediate predecessor, construing this section, in the case of the "Ortez Mine

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grant," then pending before him on appeal, and involving identically the same question presented by the appellants in the case under consideration, said: "I may without offense use the language of Attorney-General Bates in speaking of another act of Congress, and say that 'it bears the marks of haste and inconsideration.' Upon a careful examination I cannot believe that it was really intended to embrace all preceding claims that had been confirmed and surveyed."

On the 2d day of December, 1870, in the case of the "Baca Locations," then on appeal before you, the object of the appellants therein being to secure a reversal of your predecessor's decision in the "Ortez Mine grant" case, you say: "I am of opinion that said decision is not so manifestly improper as to justify me in overruling it. I feel less reluctance in coming to this conclusion from the fact that Congress will soon assemble. Their attention to the subject of surveys is invited by my predecessor in his annual report; and if his construction of the act does not give full effect to the intent and purpose of that body, the difficulty can and no doubt will be obviated by further legislation."

The case under consideration again presents the question as to the proper construction to be given to this section, and it is said, in arguendo, that this is the first occasion in which counsel have been heard in support of the position that patents should be issued on claims confirmed before the passage of the act.

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If we are permitted to look at the report of the Committee. on Private Land Claims, who draughted and reported said act, and ascertain therefrom its meaning, the case will be free from difficulty; for that committee, (Mr. Orth, chairman,) among other things, said, (see Report No. 71, 40th Congress, 2d session, House of Representatives :)

"Accompanying this report is a bill, the passage of which we recommend, which provides for such confirmation, not by granting to the claimant a fee-simple estate in those lands, but simply by way of quit-claiming on the part of the United States to the heirs of the original grantees. The bill herewith reported also provides for the issuing of a patent in each case. It is not assumed that a patent is at all necessary in order to confer

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or confirm title in these cases, for we are aware that our Supreme Court has decided that confirmation by act of Congress and approved survey under it are sufficient evidence of title without any patent; but we believe it due to these claimants, whose original title-papers have heretofore been surrendered to the Government, that they should not be put to the trouble of providing each for himself or herself a copy of the treaty of Guadalupe Hidalgo, of the act of Congress of July, 1854, of the act confirming such title and the survey made under it, in order to feel assured that the land, which in some of these cases has been in possession of these claimants or their ancestors for one hundred years, is really their property.


"As American citizens, they are entitled to a simple evidence of title, and such as is given to our citizens who acquire real estate from the Government by the various modes provided by our laws. In some of the acts heretofore passed, in reference to lands under said treaty with Mexico, patents have been required to be issued, while in others this has been overlooked; hence we provide furthermore in this bill that in all cases in which confirmation has been had without the issuing of patents, such patents shall be issued, thus placing all claims under said treaty upon an equal basis."

The weight that should be given to the report of a committee draughting the act is scarcely in doubt, upon the authorities. As early as 1823, Attorney-General Wirt, in speaking of an act authorizing the settlement of the accounts and claims. of the Vice-President, said "that the accounting-officers, in settling the accounts and claims of the Vice-President, have a right to adopt the report of the committee as establishing the principles which are to govern them in the examination thereof; for I consider the bill which accompanied the report as part of that report, and the passage of the bill into a law as a virtual adoption of the report, of which it was a mere consequence. I do not think it would be proper on the part of the President, in the exercise of his revising power, to reject the principles established by the report of the committee, and to adopt others in conflict with them. Considering the report as I do, in the light of a preamble to the law, I think that its principles ought to be respected so far as they go." (1 Opin., 596.)

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