US SUPREME COURT DECISIONS
UNITED STATES V. CASTILLERO, 67 U. S. 17 (1862)
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United States v. Castillero, 67 U.S. 2 Black 17 17 (1862)
United States v. Castillero
7 U.S. (2 Black) 17
Syllabus
1. Paredes, president of Mexico from 15 December, 1845, until 29 July, 1846, exercised extraordinary powers, but it is not certain that such of his acts as violated the law were ever ratified. Semble that such ratification was necessary to make his acts valid as against the government.
2. Conceding the power of the acting president of the republic to make a grant of land in California, the several documents attesting any supposed grant are to be examined with care, since it thus becomes a question of construction whether it was or was not intended to be a grant.
3. A party asserting that he had discovered and denounced a valuable mine in California presented a memorial to the Junta de Mineria asking a loan of money and materials to work it and also requesting the Junta to recommend that the government grant him as a colonist two square leagues on his mining possession. The Junta communicated the memorial to the Minister of Justice, with their approval of the loan &c., but declined to give any opinion upon the propriety of granting the land. The minister of justice, in the name of the president, concurred with the junta, and with respect to the land ordered the proper measures to be taken by the Minister of Relations, "with the understanding that the government accedes to the petition." The Minister of Relations made out and gave to the applicant a dispatch addressed to the Governor of California reciting the previous chanrobles.com-red
proceedings and declaring that he did so in order that the Governor might put the applicant in possession of the two square leagues "in conformity with the laws and decrees on the subject of colonization." The dispatch was never delivered to the governor. Held that this was not a grant for two leagues of land, nor intended to be so.
4. The legal effect of the dispatch of the Minister of Relations was merely to authorize a regular application to the governor by petition under the laws of 1824 and 1828, to be followed by such steps as those laws require and a grant of land if the governor should ascertain that it was proper to make one.
5. To say that these proceedings at the City of Mexico were in themselves an absolute grant, either legal or equitable, of the land claimed under them is a manifest error which this Court cannot be expected to sanction.
6. The case of United States v. Castillero, 23 How. 468, reviewed and shown to be entirely different from this in its facts and in the legal principles applicable to it.
7. If the mine was on private property, the governor was wholly without power to make a grant of land there, for his jurisdiction under the colonization laws extends only so far as to make grants of public lands.
8. Nor would it benefit the claimant if it were now shown that it was public land because his own representations prove that he fully believed it to be private property.
9. A mining right or privilege under the Mexican ordinances relating to that subject is a title to land within the meaning of the Act of 1851, and therefore the Board of Land Commissioners had jurisdiction to investigate a claim to such right.
10. The ordinances made and established by the King of Spain at Madrid in 1783 prescribe the mode of acquiring titles to mines, and were in force throughout the Republic of Mexico at the date of the American conquest of California.
11. A strict compliance with the terms and conditions of those ordinances is required by the ordinances themselves, and is shown to be necessary on general principles by all the writers on the subject.
12. Registry is the basis of title to a mine, and no mine can be lawfully worked until it is registered, nor can any title thereto be acquired either by the discoverer or by any other person without a registry.
13. Registry consists of an entry in a book kept by the proper public authority. chanrobles.com-red
14. Claimant of a mining right filed with his petition an espediente of his title certified by an Alcalde to be a true copy to the letter from the original in his office. It was afterwards proved that the expediente and the certificate were in the handwriting of a party interested, who had copied them from papers furnished by another party also interested, and that the Alcalde had signed the certificate without seeing any original. Held that this document is entirely unworthy of credit.
15. Claimant produced another espediente certified by a Mexican Alcalde who could not write nor read writing. This expediente differed in some particulars from that which the claimant filed with his petition. The Alcalde, though a witness, was not asked to verify, the document. It was in the handwriting of another witness who swore to that fact, but did not testify from what he had copied it. Held that such a document, so proved, is entitled to very little consideration.
16. Another espediente was produced at a subsequent period which the claimant alleged to be the original from the archives, though it differed materially from the two others previously alleged to be copies. A witness testified that he found it among the records in January, 1851, but it bore no official marks, it was never seen among the archives previous to that time, the claimant's counsel had made affidavit in December, 1850, that the original expediente was in Mexico and could not be produced, nor a copy of it furnished, though it had been diligently sought for. Held that this document was not sufficiently proved, and that the testimony of Mexican officers and assisting witnesses who swore to its execution by them at or about the time of its date did not establish it as an official paper.
17. A fourth and still different expediente was introduced by claimant near the close of the case. It was certified (all but the act of possession) by an alcalde who admitted on his oath that the papers had been sent to him from the mine, and he had signed the certificates without knowing what they were. The Mexican officer and his assisting witnesses were then called to prove that the act of possession in this expediente was a duplicate original. Upon these and other circumstances, it was held that this expediente could not be regarded as a genuine document, and that its production at that late stage of the case, added to its glaring inconsistency with the evidence previously given, had the effect not only to impair all confidence in the first expediente, but to discredit all the witnesses who had sworn to the papers of which it was composed. chanrobles.com-red
18. Title to a mine is vested by the adjudication or decree of the proper tribunal in a case duly presented for decision, and by the registry of the adjudication, together with the proceedings on which it is founded.
19. The mere fact of discovery, without such adjudication and registry, gives no title to the discoverer, though it is also true that without proof of discovery there can be no adjudication in his favor.
20. To complete the adjudication and carry it into effect, the boundaries must be fixed, else the title or claim, like other indefinite interests in lands, will be void for uncertainty, and this rule applies to mines situate on public as well as to those on private lands.
21. An alcalde had no jurisdiction under the mining laws and could make no title to a mine. The tribunal empowered to exercise this jurisdiction was the mining deputation of the territory or the nearest one thereto.
22. The fact that no mining deputation nor no courts of first instance were established in California would show that a law giving jurisdiction over mines to an alcalde might have been a convenience to the people, but it does not show that such a law existed.
23. It may be safely inferred from the character and history of Mexico that its supreme government reserved to itself the power over its mines and purposely withheld all jurisdiction of that nature from the local authorities of its distant and frontier territories.
24. If the alcalde had jurisdiction, it would be necessary for the claimant to show that such jurisdiction was exercised in accordance with the requirements of the mining ordinances.
25. Some of the provisions of those ordinances are doubtless directory, and others conditions subsequent, but some of them are clearly conditions precedent.
26. Those provisions which appertain to the registry of the mine and the action of the tribunal thereon and in respect to the judicial possession of it are conditions precedent, and a discoverer cannot support a title without showing a substantial compliance. Want of registry and omission to mark boundaries on the ground are fatal defects in a mining title.
27. A discoverer who neglects to have his title adjudicated and registered agreeably to the ordinance or to have his pertenencias measured and marked does not by such negligence forfeit his title, but simply fails to acquire any title which could be the subject of forfeiture. chanrobles.com-red
28. Claimant went to Mexico six months after the alleged date of his mining title. He petitioned the junta for aid and asked a land grant, as mentioned in note 3. He asserted that he had discovered and denounced a mine, but produced no title papers, and falsely stated that the mine was in the Mission of Santa Clara, suppressing the fact that it was on a private rancho five leagues distant from that mission. He requested the junta to recommend the approval of the possession of the mine which had been given him by the local authorities of California. The junta agreed to furnish the assistance, and recommended the approval or confirmation. The president approved of the agreement made by the junta in order to commence working the mine (as one of his ministers said) or (according to another) for the exploration of the mine, but made no decree concerning the title. Held that these proceedings were not a confirmation or approval of any title which the claimant might previously have obtained from an alcalde in California, and therefore the documents produced to show that he had such a title must stand or fall by their own contents and the evidence which supports there on their original merits.
29. The Court discusses numerous acts of the original claimant and of parties interested in the mine, and especially those disclosed in a correspondence between them, and holds these acts to be evidence that the claimant and his aliences knew full well the invalidity of the title which he and they were setting up.
30. The assurance given by the Mexican government when the treaty of peace was under negotiation that no title for land in California had been made of later date than 13 May, 1846, her assent to the tenth article which contained a similar declaration, and her acceptance of the subsequent explanations contained in a protocol which promised the protection of the American government only to such titles as were made before that time prove that Mexico herself did know and must have known that the pretensions of the claimants under a title of later date were unfounded.
These were cross-appeals severally taken by the United States and by the claimants from a decree of the District Court for the Northern District of California in a claim of Andres Castillero for land under the Act of March 3, 1851.
Before the commencement of the proceeding, the claim had been divided, and most of the shares in it were held by other persons, who, with Castillero, occupied the lands under the chanrobles.com-red
name of the New Almaden Mining Company. But the petition to the Board of Land Commissioners was presented by the attorneys of the company in the name of Castillero alone, for his benefit, and the benefit of those holding under him.
The petition set forth that Castillero discovered a mine of cinnabar in 1845; that having formed a company to work it, he, on the 22d of November, and 3d of December, 1845, denounced it, and on the 30th of December received juridical possession in due form from the magistrate of that jurisdiction; that the record of his mining possession was afterwards submitted to the Junta de Fomento y Administracion de Mineria, who declared it to be legal and recommended to the Executive not only that it be confirmed but that two square leagues be granted him on the surface of his mining possession; that the grant of two square leagues was made on the 20th of May, 1846, and an order or patent of title issued to him on the 23d, with which he started to take possession, but was prevented by the war; that as soon as possible he got a survey made; that by virtue of these facts he acquired a perfect title, under which he and his grantees have held possession ever since 1845, expending immense sums of money upon it. The petition concludes with a prayer that the land commissioner will confirm to him "the two square leagues of land, as embraced in his mining possession and grant as aforesaid."
Along with the petition, the claimants filed copies of the title documents under which they claimed the mine and lands. The mining title consisted of the following papers united together in the form of an expediente.
"Senor alcalde of first nomination:"
"Andres Castillero, captain of permanent cavalry and at present resident in this department, before your notorious justification makes representation:"
"That having discovered a vein of silver, with a ley of gold, on the rancho pertaining to Jose Reyes Berreyesa, retired sergeant of the Presidio Company of San Francisco, and wishing to work it in company, I request that, in conformity with the ordinance on mining, you will be pleased to fix up notices in public places of the jurisdiction in order to make sure of my right when the time
of the juridical possession may arrive, according to the laws on the matter."
"I pray you to provide in conformity, in which I will receive favor and justice, admitting this on common paper, there being none of the corresponding stamp."
"Pueblo of San Jose Guadalupe, November twenty-second, eighteen hundred and forty-five."
"ANDRES CASTILLERO"
"This is a copy of the original to which I refer, signing it with two assisting witnesses, in the Pueblo of San Jose Guadalupe, on the 13th of January, 1846."
"PEDRO CHABOLLA"
"Assisting witnesses:"
"Sansevain"
"Jose Sunol"
"Senor alcalde of first nomination:"
"I, Andres Castillero, permanent captain of cavalry, before your well known justification, appear and say that on opening the mine which I previously denounced in this Court, I have taken out, besides silver with a ley of gold, liquid quicksilver, in the presence of several bystanders, whom I may summon on the proper occasion."
"And considering it necessary for the security of my right so to do, I have to request of you that uniting this representation to the denouncement, it may be placed on file, it not going on stamped paper, because there is none."
"I pray you to take measures to this effect, in which I will receive favor and grace,"
"Santa Clara, December 3, 1845."
"ANDRES CASTILLERO"
"This is a copy of the original to which I refer, signing it with the witnesses of my assistance, in the Pueblo of San Jose Guadalupe, on the 13th of January, 1846."
"PEDRO CHABOLLA"
"Assisting witnesses:"
"Sansevain"
"Jose Sunol"
"There being no deputation on mining in the Department of California, and this being the only time since the settlement of Upper California, that a mine has been worked in conformity with the laws -- and there being no Juez de Letras [Professional Judge] in the Second
District, I, the alcalde of first Nomination, citizen Antonio Maria Pico, accompanied by two assisting witnesses, have resolved to act in virtue of my office for want of a notary public, there being none, for the purpose of giving juridical possession of the mine known by the name of Santa Clara, in this jurisdiction, situated on the Rancho of the retired sergeant Jose Reyes Berreyesa, for the time having expired, which is designated in the ordinance of mining, for citizen Don Andres Castillero to show his right and also for others to allege a better right, between the time of denouncement and this date, and the mine being found with abundance of metals discovered, the shaft made according to the rules of art, and the working of the mine producing a large quantity of liquid quicksilver, as shown by the specimens which this court has, and as the laws now in force so strongly recommended the protection of an article so necessary for the amalgamation of gold and silver in the Republic, I have granted three thousand varas of land in all directions, subject to what the general ordinance of mines may direct, it being worked in company, to which I certify, the witnesses signing with me, this act of possession being attached to the rest of the expediente, deposited in the Archives under my charge. This not going on stamped paper, because there is none, as prescribed by law."
"Jazgado of San Jose Guadalupe, December 30, 1845."
"ANTONIO MARIA PICO"
"Assisting witnesses:"
"Antonio Sunol"
"Jose Noriega"
"I have received of Don Andres Castillero the sum of twenty-five dollars, on account of the fees for the possession of the quicksilver, mine, which is in this jurisdiction, under my charge, named Santa Clara."
"Court House of San Jose Guadalupe, December 30, 1845."
"$25 ANTONIO MARIA PICO"
"Writing of partnership executed by Don Andres Castillero, captain of permanent cavalry, with the commanding general, Den Jose Castro, and the Senores Secundino Robles and Teodoro Robles, and a voluntary grant which the partners make perpetually to the Rev. Father Fria, Jose Maria del Refugio Suarez del Real, of a mine of silver, gold, and quicksilver, in the Rancho of Don Jose Reyes Berreyesa, in the jurisdiction of the Pueblo of San Jose Guadalupe. "
"Art. 1. Don Andres Castillero, conforming in all respects to the ordinance of mining, forms a regular perpetual partnership with the said persons in this form: the half of the mine, which is that of which he can dispose, will be divided in three parts in this manner: four shares to Don Jose Castro; four shares to Senores Secundino and Teodoro Robles; and the other four shares to the Rev. Father Jose Ma. R. S. del Real, as a perpetual donation."
"Art. 2. Neither of the partners can sell or alienate any of his shares, so that he who may do so shall lose his right, which shall revert to the other partners."
"Art. 3. The expenses shall be borne in proportion to the shares, a formal account being kept by an accountant, who will be paid from the common fund."
"Art. 4. That prescribed by the ordinance of mining being complied with in everything, whatever difference may arise will be decided by the partners themselves."
"Art. 5. Don Andres Castillero will direct the labors, expenses, and works, and in his absence the Rev. Father Friar Jose Maria R. S. del Real."
"Art. 6. Of the products, no larger quantities will be taken out than are necessary for the arrangement of the negotiation until the works may be regulated, and whatever the quantity may be, it must be with the consent of all the partners until the negotiation may be arranged."
"Art. 7. These agreements will be authenticated by the prefect of the second district, Don Manuel Castro, the original document being deposited in the archives of the district [partido], a copy certified by his honor being left with the persons interested."
"Mission of Santa Clara, November 2, one thousand eight hundred and forty-five."
"ANDRES CASTILLERO"
"For the comd'g general, Don Jose Castro"
"ANDRES CASTILLERO"
"JOSE MARIA DEL R. S. DEL REAL"
"For the Senores Secundino Robles and Teodoro Robles."
"FRANCISCO ARCE"
"It is a copy of the original, to which I refer."
"Santa Clara, December 8, 1845."
"MANUEL CASTRO"
"Antonio M. Pico"
chanrobles.com-red
To this expediente was appended the following certificate by James W. Weekes, who was then acting as alcalde of San Jose.
"COURT OF THE JUSTICE OF THE PEACE"
"San Jose Guadalupe, Upper California"
"I certify in due form that the foregoing is a faithful copy made to the letter from its original, the 'expediente' of the mine of Santa Clara or New Almaden, which exists in the archives under my charge, to which I refer. And in testimony thereof, I have signed it this twentieth day of January, one thousand eight hundred and forty-eight."
"JAMES WEEKES, Alcalde"
Weekes, being called by the United States as a witness, testified that the body of the papers, as well as the certificates, were written by James Alexander Forbes, then one of the complainants, and that he (Weekes) had signed the certificate without seeing any original, but merely because Forbes requested him to do so and in the belief that such a request would not be made unless it was right. J. A. Forbes swore that he made the copy not from official papers, but from papers furnished him by Alexander Forbes, another claimant. J. A. Forbes, being British vice-consul, added to the certificate of Weekes the following certificate of his own.
"BRITISH VICE CONSULATE FOR CALIFORNIA"
"San Francisco"
"I hereby certify that the signature to the above certificate is the true and proper handwriting of the person it represents, and that it is worthy of all faith and credit."
"In witness whereof, I have hereunto placed my hand and official seal this twenty-first day of January, one thousand eight hundred and forty-eight."
"JAS. ALEXANDER FORBES"
"Vice Consul"
"SEAL OF H. B. M. VICE CONSULATE"
After the document was made and so certified, it was returned to Alexander Forbes, who took it to Tepic, in Mexico, and there procured for it the following additional certificates: chanrobles.com-red
"JESUS VEJAR, NOTARY PUBLIC."
"I certify and assure that the last preceding signature of the Senor Vice Consul, Don James Alexander Forbes, is his own, which said Senor is accustomed to use, I having become acquainted with it when I knew him during his stay in this city, on the way to Upper California, by various acts which he executed in the house of Messrs. Barron, Forbes & Co."
"And at the request of the same persons I affix my notarial mark and signature to this testimony, in Tepic, on the fifteenth of March, one thousand eight hundred and fifty."
"JESUS VEJAR"
"We, the Constitutional First alcalde and notary public, who sign, certify and assure, that the preceding mark and signature are those which the Notary, Jesus Vejar, is accustomed to use in all the acts which pass before him. We thus prove it, in Tepic, on the fifteenth day of March, one thousand eight hundred and fifty."
"EUSEBIO FERNANDEZ"
"CONSULATE OF THE UNITED STATES"
"I, George W. P. Bissell, Consul of the United States of North America for this district, hereby certify that the signatures attached to the foregoing document are in the true handwriting of the subscribers, who legally hold the situations therein represented, and are worthy of all faith and credit."
"In testimony whereof, I hereunto set my hand and seal of office this 1st day of December, in the year 1850, in the city of Tepic."
"[L.S.]"
"G. W. P. BISSELL"
"United States Consul"
"Filed in office September 20, 1850"
"GEORGE FISHER"
It was a copy of this espediente and of the certificates appended to it that was filed with claimants' petition. The papers as made out by James Alexander Forbes was not produced by them until August 18, 1856, after the appeal to the district court, when it was brought in upon a formal notice from the United States and an order of the Court. Upon its being compared with the espediente, afterwards alleged by the claimants chanrobles.com-red
to be the original record, it was found not to correspond with it, but differed in many and very essential respects.
On the 6th of November, 1856, the claimants introduced another espediente, certified as a copy from the record, by Pedro Chaboya. The certificate is dated 13th of August, 1846. Chaboya was second alcalde that year. Juan Fernandez recognized it as being in the handwriting of Salvio Pacheco, who being sworn, testified that he had written it, certificate and all, except Chaboya's signature, but gave no account of any original from which he had copied it. He added his belief that the signature was the handwriting of Chaboya. Chaboya himself was not interrogated on the subject. This document also differed from that previously produced.
In was on the 30th of January, 1858, that the claimants put into the case the espediente which they asserted was the original record made up by the alcalde at the time when the proceeding was closed by the delivery of possession to Castillero. It was brought into Court from the recorder's office of Santa Clara County, by Mr. Houghton, the deputy recorder. On the back of it was the official mark -- "Filed 25 February, 1853, at 12 o'clock A.M. J. M. Murphy, recorder, by S. O. Houghton, deputy." It appeared also that there was on the paper a note in pencil by Mr. Richardson to the effect that it was filed 21st of January, 1851. Richardson was then recorder. He was not a witness, but Houghton made a deposition in which he gave the following account of the filing by him:
"The first recollection I have of the document is a few days before the date of this filing on the back of it, which is 'Filed February 25, A.D. 1853, at 12 o'clock, A. M., J. M. Murphy, Recorder, By S. O. Houghton, Deputy.'"
"I think it was sometime in the month of February, I think so from the time this filing is dated. Mr. James A. Forbes came to the office and desired to see the record of this paper, describing the paper to me. I examined the record and told him that it was not recorded there. He then looked for it himself and insisted that it was recorded there; he did not find it. He was looking for the record of the paper, not for the paper itself. Some days after that, I
found the paper in the office. There was a safe in the office, in the top of which were some papers; there was also a desk with pigeon-holes containing papers, I found it in one or the other of them. I do not recollect which."
"Q. When you found the paper, how did you recognize it?"
"A. By the description given of it by Mr. Forbes."
"Q. If you had ever seen such a paper before in the office, would you not have remembered it?"
"A. I think that I should."
"Q. Were you not surprised when you saw the paper?"
"A. I was surprised that such a paper should be there without its being known."
"Q. Did Mr. James A. Forbes appear to be making a thorough search, and about how long was he in searching for the record of that paper of which you have before spoken?"
"A. I think he and I together searched more than one day, he represented the paper to me to be of great importance, and I made a very thorough search for the record of it."
"Q. Did you always keep your safe locked during business hours, and did you always keep a strict guard upon those pigeon-holes, or was it possible to insert a paper into the top of that safe, or into those pigeon-holes, without your observing when it was done?"
"A. The safe and the pigeon-holes were generally open during business hours when I was in the office; the books of record were kept in the safe, and the safe was kept open for the purpose of getting access to the books when persons came to examine them. There was no particular guard kept upon anything in the office. I never suffered any person there unless I was there. It is possible that anything might be inserted into the top of that safe or those pigeon-holes without my knowing it."
"Q. After you found the paper, what did you do with it?"
"A. I kept it there until Mr. Forbes came, and filed it at his request."
Captain Halleck, superintendent-general of the mine and principal agent of the company, testified that he found the document in the office of the Mayor of San Jose, in January, 1851; that he took it thence and carried it to the Recorder's chanrobles.com-red
office, where he left it; Mr. Belden, the Mayor, being with him when he found it, and when it was delivered to the Recorder. He confidently believed this to be same paper which he had so found at that time. The following is part of his cross-examination:
"Q. In September, October, November, and December of the year 1850, where were the papers of denouncement and juridical possession of the mine of New Almaden, being the same paper produced by Mr. Houghton?"
"A. I do not know."
"Q. Were they not, to the best of your knowledge and belief, in Mexico?"
"A. I have no knowledge of their being in Mexico, or of where they were. My belief is that they were in San Jose."
"Q. Have you a pretty good memory?"
"A. I have a pretty good memory of occurrences and of persons, but not a very good memory for names or dates."
"Q. During the time of which I have just inquired, did you not verily believe that they were in Mexico?"
"A. I did not. I had no reason to believe that they were in Mexico, and my reasons for believing they were in San Jose are that I found them there in 1851, as I have stated."
"Q. It is now seven years since the period of which I have questioned you. The human memory is treacherous. I therefore desire you to reflect well upon the answer you have just given. Do you answer in the same manner?"
"A. I have no charge to make in my answer except to say, as I have before said, that I cannot say positively that the paper produced by Mr. Houghton is the same found in Mr. Belden's office. I believe it to be the same, as I have before stated."
"Q. You regard the paper which you found in the office of Belden as the original denouncement and juridical possession of the mine of New Almaden, do you not?"
"A. I do."
"Q. In reference to that paper, you then repeat the answer you have given above, do you?"
"A. I do."
"Q. Did you not, in the month of December, 1850, declare on
oath in a court of justice that the original denouncement and juridical possession of the mine was at that time in Mexico?"
"A. I may have done so. I had copies or a copy of that original denouncement and possession, and may have supposed then that the original, which is usually delivered to the parties, was in Mexico. I understood and always have understood it to be the practice of Mexican alcaldes to make two originals of their judicial acts, one of which is made of record in their office and the other delivered to the parties interested. I probably then supposed, as I have since, that a duplicate original had been given to Castillero and taken to Mexico. I remember to have written to Mexico to have such original sent to California to be used in the litigation then pending."
The United States then produced the record of an ejectment brought by Maria Bernal de Berreyesa, widow of Jose Reyes Berreyesa, against James Alexander Forbes and Robert Walkinshaw, for the land on which the mine is situate. This record showed that on the 13th of September, 1850, the counsel of the plaintiffs moved for an order of the court on the defendants to produce in court and file the papers upon which they claimed the mine, "and all papers connected with the said New Almaden Mine, or the land upon which the same is situated, upon which the defendants intend to found their claim to said land or said mine." This motion "was granted by the court, and the said papers or copies thereof were ordered to be produced according to said motion." Mr. Halleck was of counsel with the New Almaden Company, and as one of the attorneys for the defendants, in that action brought by Berreyesa, he put in an answer verified by his own affidavit, to show why the order of the court could not be complied with. The answer and affidavit were as follows:
"State of California, County of Santa Clara:"
"JAMES A. FORBES, ROBERT WALKINSHAW,"
"ads."
"MARIA BERNAL DE BERREYESA et als."
"The defendants in this cause in answer to the order of court made on the 13th day of September A.D. 1850, requiring the defendants
to produce in court certain papers upon which they intended to rely as a defense in this cause, answer and say:"
"That they have exercised all due diligence to procure and produce the said papers in court, by writing immediately on the receipt of the above mentioned order, to the parties in Mexico, who hold them, but to this date the defendants have not received them, this delay having been caused, as defendants verily believe, by the failure of the mail steamers running from Panama to San Francisco to touch, as heretofore has been their custom, at the port of San Blais in Mexico, from which place the defendants have expected, and still expect, to receive said papers."
"The defendants therefore ask your honorable court such further time as may be necessary to procure said papers and comply with the said order of court."
"And the defendants further aver that the said papers and other documents which they have sent for in Mexico, and which they are daily expecting to receive, are absolutely necessary to them in the above entitled cause, and that they cannot proceed with the trial of this cause without said papers and documents."
"And the defendants specify, among others, the following papers and documents as absolutely necessary to them before they can proceed with the trial of this cause, viz.: (1) the original denouncement of the Mine of New Almaden and the Judicial possession given of the same in the year 1845; (2) the confirmation of said denouncement and possession by the supreme government of Mexico in the year 1846, and prior to the late declaration of war by the United States against the Republic of Mexico; (3) the original grant of land including said mining possession, made by the supreme government of Mexico (prior to the declaration of war as aforesaid) to the owners of said mine; (4) the original documents showing the ownership of said mine and land in the parties from whom the defendants derive title, the defendants verily believing that the land referred to in said documents is the same land as that upon which the pretended trespass is alleged in plaintiff's complaint to have been committed, and that these documents are absolutely necessary for their defense."
"The defendants therefore pray a continuance of the above entitled cause to the April Term of this Honorable Court."
"State of California, County of Santa Clara."
"Henry W. Halleck, one of the attorneys in the above entitled
suit, states on oath that he believes the facts mentioned in the foregoing answer and petition are true, that all due diligence has been exercised to produce in court the aforementioned papers, that further time is necessary to defendants in order to enable them to produce said papers, and that defendants cannot go to trial in this cause till said papers are procured."
"H. W. HALLECK"
"Sworn to and subscribed before me."
"JOHN H. WATSON, Judge"
"Filed December 23, 1850"
"H. C. MELOVE, Clerk"
The New Almaden Company had several judicial controversies concerning their title to the mine. No record evidence of their title was produced in any of them, nor does it appear that any body having the custody of the alcalde's archives ever discovered among them any papers relating to Castillero's title. H. C. Melone, who was secretary of the alcalde's court before the establishment of the state government and was clerk of the county court afterwards, testified as follows:
"Q. During the pendency of the suit of Walkinshaw against Forbes, and of the proceedings of Horace Hawes in denouncements, was there offered in evidence or exhibited to you, any document purporting to be a record of the original denouncement of the New Almaden mine, and of possession of said mine, given by any alcalde in the year 1845."
"A. There was none that I know of. I should have remembered it if I had seen it."
"Q. Look at the paper now shown you, which is the same which was yesterday in your presence produced by G. M. Yoell, Deputy Recorder of the County of Santa Clara, then under examination, and which the said Yoell testified was a paper now on file among the records in the office, of the recorder of said county, which paper is endorsed, 'Posesion de la mina de Sta. Clara, Ano de 1845,' and say whether this paper was offered in evidence in either the aforesaid suit of Walkinshaw against Forbes or the denouncement by Horace Hawes of which you have spoken, or was exhibited
to you or seen by you at any time during the said proceedings, or either of them."
"A. I think not. I do not remember to have ever seen this paper until a short time since. It was shown me in the Recorder's office of Santa Clara County."
"Q. What opportunities have you ever had for making yourself familiar with the records and papers, books and documents, contained in the office of the First alcalde of the Pueblo of San Jose, and of obtaining a clear knowledge of what papers were there recorded, filed or kept."
"A. I was clerk for Judge May, both as alcalde and Judge of the First Instance, and had the custody of all the books and papers in the office, and did the recording. After the resignation of Judge May, which took place some time in November, 1849, and the appointment of J. C. Conroy as First Alcalde and Judge Richardson as Judge of the First Instance, I continued to do most of the recording, and had access to the papers and books, and had the custody, in a manner, of said papers and books, until sometime in April, 1850, when the state government went into operation. At that time I took all the records, of every description, and the books and papers belonging to all the suits in the Court of the First Instance, and carried them to my office as county clerk, and delivered such of those as I thought properly belonged to the county recorder's office, to John T. Richardson the then county recorder."
"Q. During all this time of which you have just spoken, and all your connection with the records of which you have just spoken, did you ever see among them, or in any of the offices of which you have spoken, or anywhere else, the paper described in the 38th question as 'Posesion de la mina,' &c.?"
"A. I do not recollect of ever having seen it until a short time ago in the Recorder's office."
Pedro Chaboya was second alcalde for the year 1846, and there is an inventory in the office of the papers handed over to him by the first alcalde. This inventory is dated 2d of January, 1846, and contains among other things, this: Acta de posesion de Mina de Santa Clara a Don Andres Castillero. There is also another inventory dated November 10, 1846, when Burton, the first person chanrobles.com-red
who was appointed alcalde of San Jose, under American authority, received the archives from his Mexican predecessor. In this no mention whatever is made of the act of possession or of any other paper comprised in the claimants' espediente.
Antonio Maria Pico, the alcalde, whose name is to the act of possession, and Antonio Sunol and Jose Noriega, by whom it was signed as assisting witnesses, testify to the making of that paper, but neither of them refer to the petitions of Castillero. The evidence gives no account of them earlier than the time of their discovery by Captain Halleck, in January, 1851.
The alcalde and his two assistants swore that the Act of Possession was written out by a man named Gutierrez, a schoolmaster in the neighborhood, who brought it to them to be signed at the house of Sunol. After the signatures were affixed to it, Guttierez took it away. Juan Fernandez was the alcalde's secretary at the time, and he says that it was brought by Guttierez to him, and that Gutierrez paid him three dollars and a half for writing it, although not having written it, he was entitled to nothing. The secretary does not seem to have done any official act to make the paper a record, and on the subject of the identity of the paper brought him by Gutierrez with the document produced in the cause, the following passage occurs in his deposition:
"Q. How do you know that the document you have testified about, is the same document that Gutierrez brought you?"
"A. Because I know it."
"Q. Was the document which Gutierrez brought you all signed?"
"A. I did not examine it well."
"Q. Did you not read it?"
"A. I did not."
"Q. How can you know it to be the same document if you did not read it?"
"A. I do not know. I have seen it tumbling about with other papers in the court; I always saw it in the desk tumbling about."
"Q. Did you read it when you saw it tumbled about amongst the other papers?"
"A. The superscription was what I always read. "
"Q. What was the superscription which you always read?"
"A. Possession of the mine of Santa Clara, I think it says. I did not pay much attention to it."
"Q. Did you read no more than the superscription?"
"A. If I read any more, I do not remember it."
"Q. Then how do you know that this document, of which you have testified, is the same?"
"A. I imagine it is the same."
"Q. Who wrote the superscription; did you write it?"
"A. I do not know who wrote it. I did not."
Pico Sunol and Noriega testify that on some day, not long after the time when possession of the mine was delivered, they signed the Act of Possession at the house of Jose Sunol, who lived in San Jose. Their testimony, as to time, was not from recollection of it, but they spoke with confidence and directness to the fact that the paper was made at or near its date, and within a few days of the time when the act was done which it was intended to record. The document, alleged to be the original, had a blank in it for the day of the month -- "December, ___ 1845." It was the copy made by Forbes, and certified by Weekes, that supplied the day, and referred it to the 30th.
The "writing of partnership" was not in the espediente found by Captain Halleck, but was attached to the one made by Forbes in 1848. In the former espediente there was a paper which was wanting in the latter, namely, the following petition of Jose Castro:
"Senor alcalde of 1st Nomination of the Pueblo of San Jose de Guadalupe:"
"I, Jose Castro, Lieutenant-Colonel of Cavalry in the Mexican Army, a native of this Department, before your notorious justification (notoria justificacion) appear and say: that representing at present the person and rights of Captain D. Andres Castillero, and other individuals who compose the company (I being one of the shareholders) in the quicksilver mine which the said Senor Castilleros denounced on the third day of December one thousand eight hundred and forty-five, and of which possession was given us on the
thirtieth of the same month and year, in strict conformance with the laws of mining, title sixth, article first, which grants to discoverers of new mines, three pertenencias contiguous or disconnected, of the dimensions designated by law, and as accords with its rights, the company claims now, as a matter of course (da hoy pordeducidas) before you, the three pertenencias in continuation of the first, it being proper that this petition should be attached to the expediente of the denouncement, so that it may remain among the archives and appear through all time."
"Not going on paper with proper seal, because there is none, I pray that I may receive favor and justice."
"JOSE CASTRO"
"Santa Clara, June 27, 1846"
Jose Castro testified very positively that this petition was made at the time of its date, signed by him, and sent to the alcalde.
The petition was in the handwriting of Benito Diaz, and he declared on his oath, as a witness, that it was written some months after its date, and after the American conquest of the country, but the reputation of Diaz for truth and veracity was such as to make him unworthy of credit in the opinion of the court below, and that opinion, based upon the personal knowledge of the judges, was placed on record.
On the 17th day of July, 1860, the fourth espediente was brought into the case, accompanied by clear proof from the claimants' witnesses that it had been found among the papers of Robert Walkinshaw, deceased, who in his lifetime had been a member of the New Almaden Company, and for a while one of its principal agents. This espediente had the following caption and summary of contents.
"YEAR 1845"
"Expediente of the denouncement, possession, and partnership of the Quicksilver Mine called Santa Clara, Jurisdiction of San Jose Guadalupe, in Upper California."
"November 22d, 1845 -- Don Andres Castillero makes the denouncement of the aforesaid, in the Pueblo of San Jose Guadalupe, for want of deputation of Mining and of Judge de letras. "
"December 3, 1845 -- Writing which the said Castillero presented, testifying to having taken out quicksilver and other metals, asking that it be annexed to the espediente."
"December 30th, 1845 -- An act of possession, which with the assisting witnesses the alcalde of the Pueblo of San Jose gave to Don Andres Castillero, of the mine of Santa Clara, because of the time of the notices being completed."
"December 30th, 1845 -- Receipt for the fees of the possession, signed by the Judge of San Jose."
"December 8th, 1845 -- Writing of partnership for the works of the mine, authorized by the Prefect of the 2d District."
The writing of partnership, mentioned in the summary, was not connected with the espediente when produced to the court. It was composed of the other papers there described. Following each of the two petitions was a certificate with the name to it of Pedro Chabollo, declaring that the respective papers were copies from the original, and the certificates are countersigned by Jose Sunol and Pedro Sainsevain, as assisting witnesses. All the papers comprised in this espediente and the certificates thereto (everything except the signatures) are in the handwriting of Gutierres. Chabollo gave the following account of the manner in which his name was signed:
"Q. What day, month, and year was it that you signed the two documents in 'Exhibit J. Y. No. 1, W. H. C.,' purporting to be copies of two representations by Andres Castillero to the alcalde of the Pueblo of San Jose, dated respectively the 22d November and 3d December, 1845?"
"A. I don't remember the day, but it must appear on the papers. I think it was on the 13th February, 1846."
"Q. What is it that fixes that date in your mind?"
"A. Because I have been shown the papers here."
"Q. What else makes you remember that date?"
"A. Nothing else; if I had not seen them perhaps I should not have remembered them, it was so long ago."
"Q. Who showed you the papers?"
"A. I was shown them the other day on my examination. I was not shown them before. "
"Q. Are you not mistaken; were they not shown to you in Mr. Barron's office by somebody?"
"A. No, sir; I was shown them here; also the signatures of Sainsevain, Noriega, Sunol, and my own."
"Q. Who asked you to sign your name on that paper?"
"A. A person name Gutierrez, or a name very like that."
"Q. What had Gutierrez to do with it; what is the reason he asked you?"
"A. They were papers relating to the mine. I was in authority at that time. I was asked to sign them, and I signed. I don't know what Gutierrez had to do with them. I only remember that he brought them and I signed with the other witnesses"
"Q. Where did he get them from?"
"A. I don't know, but he probably got them from the mine."
"Q. Who had them at the mine, perhaps?"
"A. I can't say."
"Q. How did you know the papers were correct when you signed them?"
"A. I supposed they were correct, as they were brought by those people. I did not examine them at all; it was not for me to do that."
"Q. What do the papers purport to be, in your opinion, and according to your present recollection?"
"A. They are papers."
"Q. Look at these papers and read them; say what they are?"
"A. I can't read writing well; I can only read it with great difficulty."
"Q. Don't you know how to write?"
"A. It is with difficulty I can paint my signature. I never learned to write."
"Q. When did you learn to paint out your signature; who taught you?"
"A. I learned alone, I had no teaching. I had a liking for writing and learned by own efforts alone."
"Q. What compensation have you received, or are you to receive, for giving your testimony in this case?"
"A. I don't know what I am to receive; I have only received my expenses. I have never been offered any payment for my testimony. "
"Q. As you were only second alcalde, what had you to do with the keeping of the documents, or the certifying to copies?"
"A. It was my duty as Judge to keep the records. The first alcalde was sick, and I acted for him. Dolores Pacheco was first alcalde."
"Q. How do you happen to remember now that he was sick at that time? It was a very long time ago."
"A. Because we were named Judges together, and I remember that when he took sick I had to notify the Prefect, who required that I should act during his sickness."
"Q. Who was the Prefect?"
"A. Manuel Castro. I got an order from him to act as first alcalde during the sickness of the incumbent, otherwise I should not have done so."
Jose Sunol, one of the assisting witnesses, was dead. Pedro Sainsevain, the surviving one, deposed that his name was placed to the documents by himself, at the time of the date, but he did not say whether the certificate was true or false, and appears to have signed it without thinking it his duty to inquire for the original. Two witnesses, Messrs. Sloan and Marks, testified to declarations of Sainsevain that the certificates were made in 1848, and not in 1846.
There was no certificate to the Act of Possession, as found in this expediente. The claimants alleged it to be a duplicate original, and to prove it such called Pico, Noriego and Sunol, whose testimony accorded with the allegation. Neither of these witnesses had spoken in their former depositions of more than one original being made.
This Act of Possession, was dated 30th of December, 1845, there being no blank as in the other original.
All these expedientes were alike in some points, but no two of them corresponded in all respects. Some of the points of difference were important and remarkable. But they are sufficiently set out in the opinion of MR. JUSTICE CLIFFORD.
A considerable portion of this voluminous record is occupied by evidence of the statements and declarations of Castillero himself. Besides his own declarations made to Colonel Fremont, chanrobles.com-red
letters written by him to General Vallejo and governor Pio Pico; letters of Pico addressed to persons in Mexico; a letter from Manuel Castro to Pico; dispatches from Mr. Larkin, United States Consul at Monterey, to Mr. Buchanan, then Secretary of state; articles from Mexican newspapers; letters from Mr. Larkin to Mr. Judd, Prime Minister of the King of Hawaii, and a newspaper entitled the "Polynesian," printed in the Sandwich Islands -- were given in evidence by the claimants, furnishing the ground of much remark in the court below, and some little here; but inasmuch as they do not appear to have been noticed by this Court, it is not considered necessary to insert them in the report.
There was much parol testimony concerning the condition of the mine, the alleged discovery of it by Castillero, the work done at it, the possession given to him by the alcalde, and the subsequent occupation of it by him and his alienees.
It is situate about fifty-five miles southeast from San Francisco, in a valley called "La Canada de los Capitancillos." This valley is bounded by the Sierra Azul on the south, and the Puebla hills on the north. It is watered by several streams, which rise in the mountains and find their outlet at the northwestern end of the valley, running thence towards the Pacific. On the north side the land is nearly level or slightly inclining to the southwest, but nearer to the mountain, on the south side there runs, on a parallel with the mountain, a range of hills, called lomas bajos -- low hills. These hills were regarded by some of the witnesses as part of the Sierra, and by others they were considered as being entirely distinct. It is in them that the quicksilver was found, and from an old opening in a peak, near the eastern end of the range, came the ore which Castillero used in his experiments.
For many years -- probably long before the advent of the Spaniards into that country -- the Indians knew that the cinnabar, of which the lomas bajos were in a measure composed, was neither common earth nor common rock, for it was ruby red, and nearly two and a half times as heavy as sand stone. In fact it was a bisulphide of mercury, some of it almost as pure chanrobles.com-red
as the vermilion of the shops. The Indians used it to paint their faces and bodies. Afterwards a quantity was dug out and carried to Santa Clara to paint the Mission Church. In 1824 and 1835, attempts were made to work it as a silver mine. Late in the autumn of 1845, Castillero came to California on business, which took him to Sutter's fort. He left that place on the 12th of November, and went to Santa Clara. Some of the ore being shown to him, he pronounced it silver with a ley of gold. The last of November, or first of December, at Santa Clara, he detected the presence of quicksilver in it, as shown by the following testimony of Jacob P. Leese.
"About the latter part of November, or first of December, 1845, I went into the mission of Santa Clara to dine with Padre Real of the mission; Mr. Castillero was there. Our general conversation through dinner was about this mine, and of experiments which Castillero had been trying, to find out what the mineral was. He made a remark, and said he thought he knew what it was; if it was what he supposed it was, he had made his fortune. We were anxious to know what it was. He got up from the table and ordered the servant to pulverize a portion of this ore; after it was pulverized, he ordered the servant to bring in a hollow tile full of lighted coals; he took some of the powdered ore and threw it on the coals; after it got perfectly hot, he took a tumbler of water and sprinkled it on the coals with his fingers; he then emptied the tumbler and put it over the coals upside down; then took the tumbler off and went to the light to look at it; then made the remark that it was what he supposed it was, 'quicksilver.' He showed all who were there the tumbler, and we found that it was frosted with minute globules of the metal, which Castillero collected with his finger and said it was quicksilver. He then said tomorrow he would test it thoroughly and find out what it was worth, he considered it very rich on account of the weight of the ore, and if it proved as rich as the quicksilver mines in Spain, that the Mexican government had offered to anyone for the discovery of such a mine in the Republic of Mexico one hundred thousand dollars."
In one of the espedientes, the first representation of Castillero is dated at Santa Clara, in the other at San Jose. There was no chanrobles.com-red
extrinsic evidence to show at which of these places it was written, or when it was written, or that it was delivered to the alcalde by Castillero, or sent to him, or that Castillero was seen to sign it, or known to have it in his hands. It is in the handwriting of Juan Castenada, whose deposition was not taken. The testimony is equally silent on the subject of the supplementary petition, which, however, is dated in all the copies at Santa Clara, and is also in the handwriting of Castenada. Several witnesses declared their belief that the name of Castillero, as signed to both petitions, was in his handwriting. It was admitted in this Court that the writing of partnership, dated 2d of November, 1845, must have been misdated, and could not have been made until after the experiment testified to by Leese, which was the last of November or first of December.
Upon these papers and the accompanying parol evidence, the claimants contended that Castillero was the discoverer of the mine, since they show that he was the first to find metal in it. The United States, on the other hand, maintained that the discovery of a mine consisted in ascertaining its situation, the extent and direction of the vein, the true character of its product, and whatever else might be necessary to give a correct idea of its value; that Castillero had learned none of these things; that when he made his original petition, he was utterly ignorant even of the metal, believing the cinnabar to be silver with an alloy of gold; that when he put in his supplemental petition he mistook it for such a combination as nature never made -- gold, silver, and liquid quicksilver -- and this blunder he persisted in to the last; that the mine was never actually discovered, or its real contents known as a discoverer should know them, until Alexander Forbes explored it in January, 1848.
After the date of Castillero's second petition, he employed a man named Chard to reduce some of the ore. He took a gun barrel, charged it with pieces of ore the size of a bean, stopped the touch-hole with clay, put the muzzle in a vessel of water and built a fire around the other end. The heat drove off the mercury in the form of vapor, which passing out at the muzzle, was condensed in the water, and precipitated itself to the bottom chanrobles.com-red
in the form of liquid metal. Several gun barrels -- as many as three or four -- were used in this way at once, and the work was kept up for a month or six weeks.
While this was going on, the alcalde, Pico, Sunol, Noriega, Fernandez, Gutierrez, Padre Real, and some other persons, came to the mine where Chard was at work with his gun barrels, and the thing was done which the claimants assert was the delivery of juridical possession, Pico was examined three times in this case, and once in the adverse case of Berreyesa, and his several depositions, relating to the delivery of possession, are not without serious contradictions; some of which are adverted to in the opinion of the Court. All the witnesses concur in saying that there was no survey or marking of the pertenencias, nor was there any professor present or other person skilled in mining or competent to inspect it and declare its character. Chard could not recollect that Castillero was present; the other witnesses testified that he was there.
Sometime after this transaction, Chard built a furnace near the creek and packed down the ore to be reduced there, but some defect in the construction of the furnace made it a total failure. Some old try pots were then procured, and by turning them bottom upwards over a heap of ore, providing a mode of conducting the vapor to the water, and setting fire to three or four cords of wood over each one, he obtained a quantity of quicksilver, which was not weighed, but it could not have been less altogether than two thousand pounds. This continued until August, when Chard and the Indians who were helping him suddenly quit work and left the place. Nothing whatever was done at or about the mine until April or May of the next year, when Walkinshaw and Alden came there. Alden testifies that he took charge of it as agent for the claimants, but he does not mention what specific thing was done by him. In November, Alexander Forbes, of the firm of Barron, Forbes & Co., came up from Tepic with workmen, money, and other appliances for business. The mine was thoroughly examined, and in January, 1848, the operations which have yielded so large a result were fairly commenced. chanrobles.com-red
Castillero left California in March, and arrived in the City of Mexico in May, where he memorialized the Junta de Mineria, or Board for the Encouragement of Mining, as will be seen by the documents hereafter to be mentioned. He never returned to California. In the winter of 1846-1847, he sold certain shares of the mine to Barron, Forbes & Co., of Tepic, as well as to other persons, and contracted for the habilitation of it. The bargaining on the part of Barron, Forbes & Co. was done by Mr. Negrete, to whom Castillero showed the writing of partnership as his mining title, and that paper alone was recited in all the acts of sale made by him and his alienees and socios down to the year 1852.
Immediately after Castillero's arrival at the City of Mexico, he commenced the proceedings which were given in evidence by the claimants as proof that the mining title was confirmed by the supreme government, and that a grant at the same time had been made to him of two square leagues as a colonist. The six following papers constituted that part of the title.
"Stamp third -- Four reales. -- For the years eighteen hundred and forty-six and eighteen hundred and forty-seven."
"I, Andres Castillero, resident and miner in the Department of Upper California, before your Excellency and your Honor, as I best may proceed, say that, having discovered in the mission of Santa Clara a mine of quicksilver, of leyes as rich, certainly, as were ever seen before not only in the Republic, but perhaps in all the world, as proved by the assays made by the order of the Junta Facultativa of the College of Mining, which, mixing together of all the specimens I brought, from the best to the worst, have given a result of thirty-five and a half percent, while there have been specimens of the best kind which must produce much greater leyes, I see myself in a condition to satisfy my desires in favor of the progress of my country, of benefiting exclusively Mexicans by the flattering and well founded hopes which such a discovery offers. In virtue of this, I have denounced and taken possession not only of said mine named Santa Clara, but also of an extent of three thousand varas in all directions from said point. I have formed a company to work it. I have constructed the pit, and complied with all the conditions prescribed
by the ordinance, the mine yielding ore, with the notable circumstance that the specimens which I brought and which have been assayed have been taken out of the mouth. It would have been very easy for me to have given the necessary extension to the negotiation by accepting the repeated and advantageous offers which have been made to me by several foreign houses in California, but the undertaking does not require that kind of assistance, which would result in advantage to foreigners, when it may be entirely national, and I have not, for that reason, hesitated to apply to your Excellency and your Honors to obtain the small and only resources which I need. These are reduced to a small advance of five thousand dollars in money, in consideration of the excessive scarcity of coin in that department, and the quick remittance to it of retorts, cylinders, and other small distilling apparatus, and also iron flasks for bottling up the quicksilver."
"I would have proposed a contract of partnership to the junta, an avio, or some other agreement, if there had been time to be able to furnish the proofs and details which would be required for said contracts; but being compromised by the supreme government to leave this capital within a few days, I find it necessary to restrict myself to that which appears to present no difficulty, and which may open a way to our future agreement."
"I am well persuaded that the junta will accede to my request, so far as may be within its power, and that it will send up to the supreme government with a recommendation that which may require the decision of the latter."
"My propositions, then, are the following:"
"First -- the junta, in the act of approving the agreement, will give me a draft for five thousand dollars on some mercantile house in Mazatlan."
"Second -- on my part, I bind myself to place in said port, within six months after leaving it, fifty quintals of quicksilver, at the rate of one hundred dollars each, which I will send from the first taken out, with absolute preference over every other engagement."
"Third -- the junta will order that there be placed at my disposition before leaving the capital the eight iron retorts which it has in its office and all the quicksilver flasks which can be found in the negociacion of Tasco, which are fit for use, and lastly, it will deliver
to Senor Don Tomas Ramon del Moral, my attorney, the sums to pay for the retorts, cylinders, and other kinds of small apparatus, which may be ordered to be made for the negociacion, to the amount of one thousand dollars."
"Fourth -- I will receive the retorts of the junta at cost price, and the flasks which I may select at two dollars a piece, agreeably with their valuation."
"Fifth -- the ascertained value of said retorts and flasks, and that of the sums which may be delivered to Senor Moral, I will return in the term of one year from this agreement, and also the premium on the draft on Mazatlan, in quicksilver, placed in said port at the price of one hundred dollars the quintal; but if the junta should wish to take one or more 'acciones' in the mine, it shall be left as a part payment of the sum corresponding to one or more barras."
"Sixth -- while the company is being formed, during the period of one year, counted from the date on which this agreement shall be approved and the five thousand dollars spoken of in the first proposition being paid, I will give the preference to the junta in the sale of quicksilver placed in Mazatlan, at the rate of one hundred dollars the quintal."
"Seventh -- the junta shall represent to the supreme government the necessity of approving the possession which has been given me of the mine by the local authorities of California, in the same terms as those in which I now hold it."
"Eighth -- it shall also represent the advantage of their being granted to me, as a colonist, two square leagues upon the land of my mining possession, with the object of being able to use the wood for my business."
"Ninth -- for the compliance of this contract I pledge the mine itself and all its appurtenances."
"The subscriber subjects this request to the deliberation of the junta, which, if accepted, may be made into a formal contract, and made legal in the most proper manner."
"God and Liberty. Mexico, May 12, 1846."
"ANDRES CASTILLERO"
"Copy. Mexico, April 23, 1850."
"O. MONASTERIO"
chanrobles.com-red
"Junta for the Encouragement and Administration of Mining"
"MOST EXCELLENT SIR -- Professor Don Tomas Ramon del Moral having presented to this junta some specimens of cinnabar from the Mission of Santa Clara, in Lower California, which Don Andres Castillero sent him, together with the annexed copies, with the object of inciting the supreme government, that it may be pleased to aid so important an enterprise, said specimens were immediately sent to his Excellency, the Director of the College, that the proper assays might be made. His Excellency, in an official communication of the twenty-ninth of last month, received yesterday, says that which follows: Senor Don Tomas del Moral, president of the Junta Facultativa of the National College of Mining, in an official communication of the twenty-fourth ult., says to me as follows:"
"Most Excellent Sir -- The Junta Facultativa having examined the documents which your Excellency referred to on the twenty-first of the present month, relative to a deposit of cinnabar discovered in California by Senor Don Andres Castillero, and another of coal on the Bay of San Francisco, has the honor to inform your Excellency that the specimens sent by said Senor Castillero were deposited, some in the Mineralogical Cabinet and others assayed by the Professor of Chemistry, Don Manuel Herrera. The assay gave a ley of thirty-five and a half percent, a mean of the different specimens having been taken to make the assay, for there are some so rich that they are pure cinnabar. The junta believes that Senor Castillero has, by such an important discovery, made himself deserving of the efficacious protection of the supreme government and of the Junta for the Encouragement of Mining, and is persuaded that your Excellency will interpose all your influence to the end that this individual may receive a proof that the supreme government knows how to distinguish and reward those citizens who contribute to the prosperity of the country."
"And with this motive I repeat to your Excellency the considerations of my esteem and respect. And I have the honor to transmit it to your Excellencies, as the result of your dispatch on the matter. "
"The junta, on enclosing the foregoing communication to your Excellency, has the honor to inform you that it has already asked Senor Castillero what kind of aid or protection he needs for the encouragement of his brilliant enterprise, congratulating the supreme government on a discovery, which, if it meets from the beginning with all the protection it deserves, may change completely the aspect of our mining, freeing it from the necessity in which it has been until now of foreign quicksilver. With this motive, the junta takes advantage of the opportunity to inform your Excellency that as on the twenty-fourth of this month, the bounty terminates which the law granted of five dollars premium on each hundred-weight of quicksilver extracted from the mines of the nation, the miners of Guadalcazar have proved that they have taken out one thousand five hundred and seventy-five quintals from December, eighteen hundred and forty-four to the end of March last, which result exceeds the calculation, which, until now, had been made, that the product of this mineral was one hundred quintals per month. The junta, on this occasion, reiterates to your Excellency the assurances of its distinguished consideration and esteem."
"God and Liberty. Mexico, May 5, 1846."
"VINCENTE SEGURA, president"
"Junta for the Encouragement and Administration of Mining."
"MOST EXCELLENT SIR -- As this junta had the honor to inform your Excellency on the 5th instant, in No. 573, Senor Don Andres Castillero has directed to it a petition, the original of which it has the pleasure to transmit herewith, regarding the assistance which he needs for the new discovery of the quicksilver mine in the mission of Santa Clara in the Department of Californias. The junta has no hesitation in recommending said petition to your Excellency, for being persuaded of the great importance of the enterprise, it considers it entitled to all the protection of the supreme government and also the particular circumstances of that department and the just desire which his Excellency the president has shown to preserve the integrity of the national territory render it worthy
of the greatest consideration. The junta is consequently of opinion that there should be immediately furnished to Senor Castillero the sum of five thousand dollars in the terms he proposes; that it should be authorized to furnish him with the iron retorts and flasks belonging to it, and the other thousand dollars, which can be employed in the construction of retorts, cylinders, and other small apparatus of distillation for said mine; although the law authorizing the junta to make loans for the encouragement of deposits of quicksilver exacts a premium of five percent per annum on the capital loaned, it cannot be doubted that the proposal of Senor Castillero to pay the five thousand dollars with fifty quintals of quicksilver placed in Mazatlan, at the disposition of the junta, at the rate of one hundred dollars each, and in the term of six months, offers greater advantages to the fund than the said interest. The urgency shown by Senor Castillero to undertake his journey to that department, and that which his so doing may contribute under present circumstances towards the preservation of the national territory, is, in the opinion of the junta, a sufficient motive to leave until a more opportune occasion the formation of a contract of partnership, or of 'avio' for the encouragement of said mine. It remains, then, to show to your Excellency that although the possession given to Senor Castillero by the local authorities of California has not been in conformity with the ordinance, inasmuch as there have been granted him 'pertenencias' to the extent of three thousand varas, which are equivalent to fifteen 'pertenencias,' agreeably to the second article of the eighth title, yet it is necessary to consider that he has in his favor the qualification of being discoverer of an absolutely new hill, in which there was no mine open, and to such there is granted in the first article of the sixth title three 'pertenencias,' either continuous or interrupted; and if he shall have discovered other veins, one ('pertenencia') in each of them. He has also in his favor the circumstance that he works it in company with others, to whom there is granted that without prejudice to the right which they may have by the title of discoverers, when they are such, they may denounce four new pertenencias, even though they are contiguous and in the same direction; but that which is most worthy of consideration is that Californias being a frontier department, and frequently threatened by the emigrants from the United States of the north, and by the new colonists of Oregon, it seems proper to grant to the first mine
discovered in a department so extensive a greater number of 'pertenencias,' which view is corroborated by the reason found at the end of the eighth title, Article 1st, which says:"
"Considering that the limits established in the mines of these kingdoms, to which those of New Spain have until now been made to conform, and are very contracted in proportion to the multitude, abundance, and richness of the metallic veins which the goodness of the Creator has been pleased to grant to those regions, I order and command that in mines which may hereafter be discovered in a new vein or without neighbors, these measurements be observed. 2d. Along the thread, direction, or course of the vein, be it of gold, silver, or any other metal, I grant to every miner, without distinction of the discoverers (who have their reward already assigned to them) two hundred Castilian varas, called 'varas de medir,' measured on a level."
Lastly, in the first article, eleventh title, there are expressed these terms:
"And because the capital of a single individual may not be sufficient for great undertakings, while that of all the partners may be, I will and command that such companies be encouraged, promoted, and protected by all convenient measures, my viceroy granting to those who may form such, every favor, aid, and exemption which can be granted them according to the judgment and discretion of the royal tribunal of mines, and without detriment to the public and my royal Treasury."
In reference to the ownership of two square leagues which Senor Castillero solicits as a colonist upon the surface of his mining property for the purpose of supplying himself with the firewood necessary for the reduction of ores (beneficio), the junta not having the necessary information on the matter of which the supreme government has abundance, his Excellency the president will decide as he may think proper. In this view, the junta, in sending up to your Excellency the petition of Senor Castillero, has no hesitation in recommending it very efficaciously on account of the vital importance of the undertaking and its incredible influence upon the general good and prosperity of the Republic.
"The junta has the honor on this occasion to repeat to your Excellency the assurances of its distinguished esteem and consideration."
"God and Liberty. Mexico, May 14, 1846."
"VINCENTE SEGURA, president"
chanrobles.com-red
"Ministry of Justice and Public Instruction"
"MOST EXCELLENT SIR -- Having reported to his Excellency, the president ad interim of the Republic, your Excellency's note of the 14th inst., with which you were pleased to transmit, with a recommendation, the petition of Senor Don Andres Castillero for the encouragement of the quicksilver mine which he has discovered in the mission of Santa Clara in Upper California, his Excellency has been pleased to approve in all its parts the agreement made with that individual in order to commence the working of said mine, and on this day the corresponding communication is made to the Minister of Exterior Relations and government to issue the proper orders respecting that which is contained in the 8th proposition for the grant of lands in that department."
"I repeat to your Excellency the assurance of my esteem."
"God and Liberty. Mexico, 20 May, 1846."
"BECERRA"
"To His Excellency, D. Vicente Segura, president of the Junta for the Encouragement of Mining."
"Ministry of Justice and Public Instruction"
"I this day say to His Excellency, Don Vicente Segura, president of the Junta for the Encouragement of Mining, what follows:"
"MOST EXCELLENT SIR -- Having reported to His Excellency, the president ad interim, your Excellency's note of the fourteenth inst., with which you were pleased to transmit, with a recommendation, the petition of Senor Don Andres Castillero for the encouragement of the quicksilver mine which he has discovered in the Mission of Santa Clara in Upper California, his Excellency has been pleased to approve in all its parts the agreement made with that individual, in order to commence the working of said mine, and on this day the corresponding communication has been made to the Minister of Exterior Relations and government to issue the proper orders respecting that which is contained in the eighth proposition for the grant of lands in that Department."
"And I have the honor to transcribe it to your Excellency, to the end that, with respect to the petition of Senor Castillero, to which his Excellency, the president ad interim, has thought proper to accede, that there be granted to him as a colonist two square leagues
upon the land of his mining possession, your Excellency will be pleased to issue the orders corresponding."
"I repeat to your Excellency the assurances of my consideration and esteem."
"God and Liberty. Mexico, May 20, 1846."
"BECERRA"
"To His Excellency, the Minister of Exterior Relations."
"Ministry of Exterior Relations, government and Police"
"MOST EXCELLENT SIR -- His Excellency the Illustrious Minister of Justice, in an official communication of the 20th instant, says to me that which I copy:"
" Excellent Sir -- I today say to his Excellency Don Vicent Segura, president of the Junta for the Encouragement of Mining, that which follows:"
" 'Most Excellent Sir: -- Having reported to his Excellency the president ad interim the note of your Excellency of the 14th instant, with which you were pleased to transmit, with a recommendation, the petition of Senor Don Andres Castillero for the encouragement of the quicksilver mine which he has discovered in the mission of Santa Clara in Upper California, his Excellency has been pleased to approve, in all its parts, the agreement made with that person to commence the exploration of that mine, and on this date the corresponding communication is made to the Ministry of Exterior Relations and government, that it may issue the proper orders relative to what is contained in the eighth proposition, with respect to the granting of lands in that Department.'"
" And I have the honor to enclose it to your Excellency to the end that, with respect to the petition of Senor Castillero, to which his Excellency the president ad interim has thought proper to accede, that as a colonist there be granted to him two square leagues upon the land of his mining possession, your Excellency will be pleased to issue the orders corresponding."
" I repeat to your Excellency &c."
" Wherefore I transcribe it to your Excellency in order that, in conformity with what is prescribed by the laws and disposition upon colonization, you may put Senor Castillero in possession of the two square leagues which are mentioned."
" God and liberty. Mexico, May 23, 1846."
"CASTILLO LANZAS"
" His Excellency the governor of the Department of Californias "
To the dispatch of Castillo Lanzas, the Minister of Relations, when it was filed by the claimants, the following certificate of Jesus Vejar was appended:
"I, Jesus Vejar, a notary public, hereby certify and attest that the foregoing authentic instrument, signed by his Excellency, the Minister of Foreign Relations, government and Police, Castillo Lanzas, has been respected under that signature, and obeyed by the Mexican authorities that governed in Upper California in the year eighteen hundred and forty-six, according to insertions which the said authorities made of the said instrument in acts which they passed upon the subject of which they treat, and which I certify to have seen, and for this reason that signature in the said instrument should be esteemed as authentic and signed in the handwriting of his Excellency, the Minister, and as, also, by proceedings that have passed under my observation, Senor Don Andres Castillero recognized it."
"And at the instance of the Messrs. Barron, Forbes & Co., I have placed hereon my signet, and sign it in Tepic, on this 1st day of March, 1850."
"JESUS VEJAR"
"We, the undersigned, First Constitutional alcalde and notary public, hereby certify and attest that the foregoing signet and signature which Don Jesus Vejar, a Notary, generally uses in all the acts is that performed by him."
"This we certify in Tepic, this 1st day of March, 1850."
"LORETO CORONA"
"EUSEBIO FERNANDEZ"
To authenticate the documents further, the claimants brought to San Francisco and there examined Castillo y Lanzas, who in 1846 was Prime Minister of Mexico, and had charge of the Department of Exterior and Interior Relations; Manuel Couto, Secretary of the Fonda de Mineria and Member of the junta de Fomento; Jose Maria de Besoco, Member of the junta; Blas Balcarcel, Member of the junta, and Director of the Mining College; Antonio del Castillo, Professor of Mineralogy and Secretary of the junta; Jose Maria Yrrisarri, Keeper of the Archives in the Ministry of Justice; Mariano Mariano, clerk in the Ministry of Justice, and A. Q. de Velasco, clerk in the Ministry of chanrobles.com-red
Relations. These witnesses testified that the documents produced were genuine; that they knew them to be true copies of such as were registered in the books of the several departments, and that they corresponded perfectly with the borradors existing in other cases. Some of them swore to their personal knowledge of the fact that the documents were issued and the records of them made up at the times when they respectively bore date. By some of them was proved Castillero's exhibition of quicksilver ores to the junta and the College of Mining, the assays of it, and the results. Their testimony also showed that a report to the Congress was made and printed in the fall of 1846, in which Castillero's discovery of quicksilver in California was referred to at some length.
Francisco Martinez Negrete, a merchant residing at Guadalajara, was called to explain the circumstances attending the sale of barras and other transactions of Castillero with Barron, Forbes & Co.
The claimants introduced divers letters, addressed by their counsel, to the president of the United States, the Secretary of state, and the Attorney General, together with some of the replies by those officers, in which were discussed, inter alia, the regularity and propriety of taking depositions in Mexico.
In the year 1857, and while this cause was pending in the district court, process was issued requiring Mr. Davidson, a banker of San Francisco, to produce a package of letters which had been deposited with him by Henry Laurencel and James Alexander Forbes, subject to their joint order. He did so; the package was opened; the letters were read, and became a part of this case. The handwriting of the several parties, by whom they purport to be written, was proved by several witnesses. The letters were as follow:
"Tepic, May 11, 1846"
"MY DEAR SIR -- I wrote to you at great length on the 15th ultimo by the Rev. Mr. Macanamara, who intends visiting California, and who proceeded to Mazatlan in order to procure a passage; but he is still there, and there is every probability that he will go by the vessel which takes this. I need not repeat what I have already said, but it
may not be amiss, in case my letter not reaching you, to state that its object was to request of you to procure as correct information as you could respecting the quicksilver mine or mines lately said to be discovered in California, one of which you mention as being worked by Mr. Castillero. If quicksilver mines of value are discovered, it would be of immense interest for Mexico, as owing to the scarcity and high price of this article, the poorer silver mines of Mexico cannot be worked. I therefore beg to request your kind attention to this letter."
"I am, my dear sir, your most obedient servant,"
"ALEX. FORBES"
"Addressed: James A. Forbes, Esq."
"British Vice Consul, California"
"Endorsed: Alex. Forbes, May 11, 1846, relative to quicksilver mine. No. 1."
"September 2, 1846"
"MY DEAR SIR -- I am much obliged to you for your offer to procure for me more information respecting the quicksilver mines, and I hope they may turn out to be of value. Anything certain which you may give me about them will be very interesting, as our mining establishments in this country must greatly be benefited by the abundance of quicksilver, and which is now scarce and dear here. I understand Castanedo is still in Mexico. Does not one of these mines belong to him, or has he disposed of it?"
"I am, my dear sir, yours very truly,"
"ALEX. FORBES"
"J. A. Forbes, Esq."
"I received your power of attorney to James Murray, Esq., and forwarded it by last packet."
"Endorsed: Alex. Forbes, September 2, 1846, relative to quicksilver mine. No. 2."
"(In pencil) -- A. Forbes, private, 1st and 2d Sept., 1846."
"Tepic, January 7, 1847"
"JAMES A. FORBES, Esq., California,"
"MY DEAR SIR -- I had the pleasure to receive your very obliging letter of the 29th of October last, which chiefly relates to the mine of quicksilver about which I wrote you at so much length by Mr. Macnamara. I had previous to the receipt of your letter been in treaty
with D. Andres Castillero respecting this mine, and on the arrival of Mr. Macnamara with the powers from the other proprietors, the treaty was much facilitated, and I am now happy to inform you that I have contracted for the 'Habilitation' of the mine, and have also purchased a part of Mr. Castillero's 'Barras,' all of which will be made known to you by Mr. Walkinshaw, who goes to California as my attorney and agent for the examination and working of the mines. Mr. Walkinshaw will wait upon you as soon after his arrival as possible, and will show you all the documents, and ask your advice and assistance in carrying out my views."
"It is needless for me to say more, than that I count on you as a friend who will lend your best assistance to bring this negotiation to a good account, and as you inform me that you are the proprietor of two 'Barras,' it will be for your interest and that of all others concerned, that every means may be used to make the most of it."
"I have sent up a small sum of money to make a beginning, and if Mr. Walkinshaw is of opinion that the business ought to be carried on to a large extent, the necessary apparatus will be ordered, and ample funds sent to carry on the business properly."
"I have for the present only sent one hundred and fourteen iron bottles, but I can get a large quantity in this country when they may be required."
"Mr. Walkinshaw will inform you that everything is left open respecting the interest which he and others may take in this enterprise, and I trust you will also leave to me the regulation of the affair which must depend on after prospects. For the present, I wish no one to run any risk or to incur any expense but myself, which, however, you must be aware will be very considerable; but if the mine turns out well, there will be sufficient for all."
"I, in conclusion, beg leave to recommend most strongly my friend Mr. Walkinshaw to your best attentions and assistance, and I am sure you will find him most worthy of your confidence."
"I am, my dear sir, yours, most sincerely,"
"ALEX. FORBES"
"James A. Forbes, Esq., California."
"Endorsed: Alex. Forbes, relative to mine of quicksilver, Jan'y 7, 1847. No. 5."
"Monterey, Oct. 1, 1847"
"MY DEAR SIR -- You will no doubt be surprised to hear of my being in Monterey, and I am so myself. I, however, resolved to
take a trip to this country, which I have so long wished to visit, and arrived last afternoon in the William, where I have been kindly received by the authorities, and no difficulty of any kind thrown in my way."
"I have sent to Mr. Alden to come over here, if he can, and take some people to the mine which I have brought with me, and it is very probable I shall accompany him, when I shall have the pleasure to see you."
"Mr. Walkinshaw has come with me, but without his family. He has been very ill all the voyage, and is now on shore in a very weak state, but I hope he will soon recover. I have a thousand things to say to you, but must wait till I have the pleasure of seeing you."
"Please inform the good Padre Real of my arrival, and tell him I don't write him, as I am a bad scribe at Castillano, but that I shall soon be at his domicile."
"Believe me to be, my dear sir, yours, very sincerely,"
"ALEX. FORBES"
"James A. Forbes, Esq."
"We have had thirty-two days' passage."
"The American Army, under Gen. Scott, was within six leagues of the City of Mexico. 10,000 men -- and a battle was daily expected. The Mexican say they have 32,000."
"Endorsed: Alex Forbes, on his arrival at Monterey, Oct. 1st, 1847. No. 3."
"(In pencil) -- Alex. Forbes, Monterey."
"Mina, 19th Nov., 1847"
"JAMES A. FORBES, Esq.,"
"MY DEAR SIR -- I wrote you the other day, which did not find you at home. I am still here preparing the apparatus for making a better trial of the ores, but as Mr. Wallis, the artizan, is unwell, we go on but slowly. I am also very anxious to have the mine cleared out and put in a proper working state before I leave it, and for this purpose we have been sinking a 'Plan' at the 'Respaldo Alto' in order to run a 'Testero' across the vein, and to discover the value and abundance of the ores in its whole width. In doing this, we have most unexpectedly found that in this 'plan' there are no cinnabar whatever, although over it, in the upper part of the vein, there are ores. This puzzles us greatly, but we hope that in cutting
across we will fall in again with ores towards the 'Respaldo Bajo.' Can this mine be a 'Manto?' I must verify that, and so must you and the Padre with your own eyes. I see very good ores in the upper part of the mine in all directions, but why does it get into Borra lower down? The Plan is about five varas lower down than when you and the Padre wrought, and on the other side of the vein. The people will go on cutting across, and when they again get into 'Metal' I will send you a man on purpose. I am confident we shall find them, but there will always be about two varas or more of the vein next the 'Respaldo Alto' without ores; at least I think so, and hope nothing worse may be the case. We still see good ores on the upper part of the vein near the 'Respaldo Bajo,' where you and the Padre took out your ores."
"I have been somewhat alarmed about this Borra, but I hope there will ultimately be no cause for this; yet I have thought it right to inform you and the Padre, and have no doubt but that my express carrier will in a few days carry better news."
"I am, my dear sir, yours very truly,"
"ALEX. FORBES"
"Endorsed:"
"B."
"ALEX. FORBES, Mine of Almaden, Nov. 19, 1847"
"Addressed: Sr. D. DIEGO A. FORBES,"
"Ausente, Al Sr. PADRE REAL, Santa Clara"
"Mine, 24 November, 1847"
"For Mr. J. A. FORBES and the PADRE REAL, Santa Clara."
"We have at last found the vein or 'cinta' of ores which we were looking for, so that I have now the pleasure to inform you and the good Padre of our luck, as I promised I should do; but I fear this mine will be reduced to this cinta, and the great body of it will be tepetate muerto; but perhaps the cinta may be wider below than it is above. To see whether this is so or not has been the object of our labors since discovering the proper direction of the vein of the whole mine, which discovery makes everything more plain. This direction was before entirely mistaken, of which and other things we will have a great deal to talk about when we meet. When Mr. Walkinshaw arrives and takes a look at the mine, I think we shall take a turn to the Mission. I expect him to be at Bernal's Rancho this afternoon."
"I may say now, that it is impossible we can go off the main vein
of the mine, as it is entirely different from the walls (respaldos) they being of a hard rock, of quite different character, whereas the vein is quite soft and easily distinguished. All we have to do is to look for the cintas which have got ores, which in my opinion will be reduced to one not very wide."
"A. FORBES"
"New Almaden, January 19, 1848"
"MY DEAR SIR -- I am very much obliged to you for your very prompt attention to the business in hand, and return the espediente immediately."
"I am much surprised at the result of your assay, and shall try what I have."
"It will, of course, be better to say nothing about it, particularly as I have already written to Monterey that there is no mine, nor does there appear to be any quantity of this kind of stuff. I hope soon to see the alcalde."
"My dear sir, yours truly,"
"A. FORBES"
"New Almaden, 1st February, 1848"
"JAMES A. FORBES, Esq."
"MY DEAR SIR -- I received an express last evening giving me all the news from Mexico, and informing me of the Natalia being about to sail for the Mexican coast and by which I have taken the opportunity to forward letters to Mexico."
"I have had the imprudence to open your dispatch. They told me that it contained newspapers, and as I knew General Miller's hand, and it being a public letter, and that perhaps it might contain letters for me which I could not get if sent on, in time to allow me to write (if so required) by the Natalia; for all these reasons. I broke open the packet. But although I know you will not be offended at what I have done, yet I would rather not have done so, as I think nothing whatever can justify one in opening directed letters to others without their previous sanction."
"You will find by the Alcanal of Guada and the Iris what is going on in Mexico, and what my friends in Monterey write is to the same purpose. The present party, Pena y Pena, Herrera, Otero, Bustamente & Co., are by far the most respectable party in the Republic, and there is a better chance for their doing something better either for peace or war than ever that most infamous rascal Santa Anna and his party, would have done. Now that they have
got rid of that blackguard, there are better prospects than before, but the present party want energy, and the third party, the Puros, (Democrats,) will most probably upset them, when greater confusion than ever will ensue."
"You will find that the American president is getting more courage in prosecuting the war than before, and has recalled Mr. Trist, desiring the Mexicans to send to Washington if they wanted peace. I have, as you know, always thought that on their getting possession of a great part of Mexico, and their volunteers covering themselves with glory, the war would become popular, and they would go ahead and possess themselves of the whole of the Mexican Republic -- particularly when they have got over the fears of European interference."
"You may now take my opinion a little farther and set down Mexico as already, virtually, a part and portion of the Union, alias the U.S."
"It is said that Gen. Yanes goes to Tepic with 4,000 men; he is a superior kind of a man, and a most intimate friend of ours, so that our interests there will be protected in as far as depends upon him."
"As Ascona's letter gives a very good summary of the news, I send it for your perusal."
"This being a rainy day, and being desirous to communicate what I know in the shape of news, I inflict upon you this long epistle."
"I am, my dear sir, yours, very truly,"
"ALEX FORBES"
"Please explain all this news to my good friend the Padre."
"You will see by Gen. Miller's list what a crash there has been in England. None of our friends are in this black list. Liverpool and Glasgow seem to suffer most."
"I am, my dear sir, yours &c.,"
"A. F."
"Addressed: James A. Forbes, Esq. &c., Santa Clara."
"Endorsed: Alex. Forbes, New Almaden, 1st Feb., 1848. No. 7,"
"Tepic, April 11, 1849"
"DEAR SIR -- We beg leave to refer you to Mr. Alex. Forbes' letter of the 9th inst., respecting the arrangement of the affairs of the mine of New Almaden, and beg to recommend that negotiation to your best care and management until we can forward the necessary
instructions for your government. You may now rely on this mine being worked to the utmost of its capabilities of production and sale of quicksilver on the arrival of the apparatus, and we hope to make up for the delay which circumstances have hitherto prevented this important concern from being productive. We shall soon have the pleasure of sending you a list of the company of which the 'habilitadores' are composed. The house of Jecker, Torre & Co., of Mexico and Mazatlan, and our own are chiefly interested, and as Don Ysidoro de la Torre has gone to Europe, he will concert with Mr. Barron everything which can tend to the successful development of this enterprise."
"We are, dear sir, your most obedient servants,"
"BARRON, FORBES & Co."
"Jas. Alex. Forbes, Esq., San Francisco."
"Endorsed: Barron, Forbes & Co., C., relative to habilitacion of New Almaden. April 11, 1849."
"Tepic, May, 20, 1849"
"SIR -- From certain circumstances which you have communicated to us, it may be necessary to purchase some lands in the vicinity of the mine and hacienda of New Almaden, in California. We hereby empower you to make such purchases as may be necessary to the secure possession of this mine and hacienda or to effect such other arrangement as you may deem necessary for that purpose -- the price of such purchase not to exceed five thousand dollars, without consulting with us upon the subject."
"We are, sir, your most obedient servants,"
"BARRON, FORBES & Co."
"James A. Forbes, Esq."
"Addressed: James A. Forbes, Esq., California."
"Endorsed: Barron, Forbes & Co., authorizing the purchases of land. J."
"[Very Private]"
"Memorandum of the Documents which Don Andres Castillero will have to procure in Mexico:"
"1st. The full approbation and ratification by the supreme government of all the acts of the alcalde of the District of San
Jose, in Upper California -- in the possession given by the said officer of the quicksilver mine situated in his jurisdiction, to Don Andres Castillero in December, 1845."
"2d. An absolute and unconditional title of two leagues of land to Don Andres Castillero, specifying the following boundaries: on the north by the lands of the Rancho of San Vicente and Los Capitancillos, on the east, south and west by vacant lands or vacant highlands."
"3d. The dates of these documents will have to be arranged by Don Andres. The testimony of them taken in due form, and besides certified to by the American Minister in Mexico and transmitted to California as soon as possible."
"Tepic, May 27th, 1849."
"Endorsed: Copy of memorandum left with Alex. Forbes for Castillero, in Tepic, May 27, 1849. I."
"San Francisco, October 28, 1849"
"MY DEAR SIR -- I have been detained at this place until the present moment, occupied in completing the arrangements explained to B., F. & Co., under the date of yesterday, having raised the sum of $27,180 67 1/4 from Probst, S. & Co., and Webster alone."
"I must again call your attention to the importance of my suggestions relative to the perfecting the title of the mine of New Almaden, and without entering now into the particulars already explained to yourself and to Mr. Alexander Forbes verbally, I desire only to impress upon your mind the vast importance of securing from the supreme government of Mexico the documents comprised in the memorandum left with Mr. Alexander Forbes when I was in Tepic, for Castillero. By my other letters by this conveyance you will be informed of all the particulars of the transactions that have occurred recently in the affairs of the mine, and you will see the risk in which this valuable property is placed by the delay that has occurred in the acquisition of the documents referred to."
"I remain, my dear sir, yours, sincerely,"
"JAMES ALEX. FORBES"
"William Forbes, Esq., Tepic."
"Endorsed: Copy letter to William Forbes (private) from San Francisco, October 28, 1849. III."
"[Private] Santa Clara, October 30, 1849"
"MY DEAR SIR -- By my letters to yourself and to B., F. & Co.,
from the 22d to this day, you will be informed of the great danger in which the mine of New Almaden has been thrown, and the disagreeable and vexatious proceedings caused me by Mr. Walkinshaw and his associates in their denunciation of the mine for abandonment. You will, however, have the satisfaction of knowing also that I am to be reinstated in the possession of that property, both mine and hacienda, in two or three days hence by judicial process."
"Although I feel much gratified at my successful defense of the case, yet I am extremely apprehensive of further difficulties in the event that those parties should succeed in purchasing the part of the land of the Berreyesas that they have offered to purchase (which embraces the mine and hacienda) for twenty-five thousand dollars -- just five times the amount you all authorized me to pay for the same identical tract!"
"Figure to yourself the position of the affair of the mine if I do not strike boldly at our opponents by purchasing the land at a higher price than they have offered to pay for it, and by thus frustrating their plans, secure the mine and hacienda from further risk."
"You will now readily perceive the great importance of my advice to you to purchase a part both of the lands of Cook and of the Berreyesas. You were of the opinion that this measure would not be necessary, in view of the supposed facility of getting the title to the mine perfected in Mexico."
"It is now more than five months since it was decided that Castillero should procure the necessary documents in that city, and that they should be sent to me as soon as possible. On the one hand, I depend upon the precarious and illegal possession of the mine, granted by the alcalde of this district to Castillero, who was, in reality, the judge of the quantity of land given by the alcalde; and on the other side I am attacked by the purchasers of the same land, declared by Castillero himself to comprise the mine. In the absence of the all-important document of the ratification of the possession so given, I am compelled to purchase the part of the land of the Berreyesas which Walkinshaw and his party have offered to purchase, and you must not be surprised if I shall go far beyond the price that they have offered, because it is the only mode of securing the title to the mine and hacienda, for if Castillero should fail in getting the desired documents from Mexico, it is the sole mode of safety of this property."
"I shall endeavor to procrastinate as far as possible this purchase,
and moreover to frustrate all the plans of Walkinsaw and his associates for accomplishing their purchase, and I do entreat you to use every effort to send me the document of the ratification of possession of the mine and the grant of land thereon at the very earliest opportunity, properly authenticated and certified, as explained by me when I was in Tepic. In one of my pre-cited letters I requested you to send me a certified power of attorney from B., F. & Co. to you authorizing you, as the representative of the Compania de Abio, to appoint other attorneys in fact under you."
"The object of this is to be able to refute the allegations of the lawyer of Walkinshaw that you had no power to authorize me to take charge of the mine."
"I remain, my dear sir, yours, truly,"
"JAS. ALEX. FORBES"
"Alexander Forbes, Esq."
"Endorsed: Copy of a letter to Alexander Forbes (private), October 28, 1849. II."
"Tepic, 30th November, 1849"
"JAMES A. FORBES, ESQ., Santa Clara"
"DEAR SIR -- We had the pleasure to write you on the 13th inst. by the steamer Oregon, the chief object of which was to enclose a notarial copy of the grant of land by the Mexican government to Castillero, and which we hope has come safe to hand."
"We have perused with much interest and attention the whole of your letters and documents received by the steamers, the California and Panama, and we beg you will excuse us from minutely entering into a reply to those valuable and important papers. Suffice it to say that we not only approve of your proceedings, but have to give you our most sincere thanks for the most energetic and able conduct in the whole affair, and we have to request that you will not hesitate continuing to take such steps as may seem to you fit for securing the mine from all attempts made by evil-minded persons to impede its being freely worked for its legitimate owners."
"We are glad to find that you had not been obliged to purchase Berreyesa's land. This is certainly a most important point, and we trust that the document sent will be of great consequence in that respect, but you will of course take care that no risk is run,
and you will do in this affair as your best judgment will direct you, keeping in view that at all hazard and at whatever cost the property of the mine must be secured. Castillero we expect will soon be here from Lower California, and if anything can be done in Mexico, he is the fittest person to procure what may be wanted. It is incredible that Mr. Walkinshaw should lend himself to such proceedings when he considered the very large capital invested in this enterprise and when he well knows that by the mining laws, no 'denuncio' could possibly be heard under the circumstances in which this mine has been occupied. We trust, however, that these vile machinations will by your active proceedings be put an end to."
"We hope you will by the time this reaches you have got up at least a part of the apparatus, and that some of it will be soon at work. The price of quicksilver here still keeps up, and the supply as yet not abundant. Everybody writes of the very high price it bears in California, and we have no doubt you will in a short time be able to supply the demand and to send us the surplus to San Blas. Trusting to the continuance of your best exertions in behalf of all concerned in the mine of New Almaden,"
"We are, dear sir, your most ob't servants,"
"BARRON, FORBES & CO."
"Endorsed: Barron, Forbes & Co., 30th Nov., 1849. No. 16."
"Tepic, 30th November, 1849"
"JAMES A. FORBES, ESQ., Santa Clara"
"MY DEAR SIR -- I have received your most valuable letters by the two last steamers, 'California' and 'Panama,' the latest dates being up to the 13th of the present month, and which gives the agreeable notice of Walkinshaw's most villainous proceedings having been upset. I hope you will forgive me for not entering minutely into all the proceedings. But I can assure you that we all feel the obligation we owe to you for the very able and decisive measures you have adopted in the whole of this affair, and I recommend you to proceed without fear of disapproval or waiting for instructions, in taking such measures as shall preserve this valuable 'negociacion' from any risk from those unprincipled claimants who have lately given you so much trouble, or from any other proceedings which may take place; being sure that such proceedings will be sanctioned by the company. We are quite of opinion
with you, that we should not be lulled into security from the belief that other proceedings will not be resorted to, and that principle will be acted upon, and every support from this will be given to what you may point out as necessary."
"As you will not, I hope, have now to employ the large sum you expected to do in the purchase of the Berreyesa's lands, you will have a large amount of funds for the object of the mines. All the drafts and orders for the value of gold have been honored."
"We are glad to learn that Mr. Probst has been so active in assisting you, and it gives me in particular much pleasure to find such a good understanding between you. I most earnestly hope the same friendship will take place between you and Dr. Tobin."
"Notwithstanding the many difficulties you must have in transporting the cargo of the Vicar of Bray, yet I hope a part of the apparatus will soon be got up to supply the demand of the placeres as well as to send us some here. It is of much importance to realize as much as possible of the large capital which now lies in the mine, laid out by the habilitadores, and to secure to the owners of barras something certain against an evil day which may some time or other overtake us."
"In new countries nothing is very certain, and I, for one (and in which I am sure you will agree with me) am most desirous to be in possession and to see others in possession of at least a part of the riches of this mine, which has cost me and others so much thought and so much labor. This I, as an individual, and for the good of all, beg leave to impress strongly upon your attention."
"I am, my dear sir, yours, very sincerely,"
"ALEXANDER FORBES"
"James. A. Forbes, Esq., Santa Clara."
"Endorsed: No. 8"
"[Very private] Tepic, December 1, 1849"
"MY DEAR SIR -- The document sent up to you by the last steamer for the grant of the lands to D. Andres Castillero, was, by mistake, not the one meant to be sent. I find now that the proper one was registered by me in Monterey, and the original deposited there."
"The one sent you was directed at the foot to the Governor of California, and the one deposited at Monterey was directed to D. Andres Castillero. The difference is that by one the delivery by the
governor was perhaps necessary to make the grant valid, whereas the other being addressed directly to D. Andres did not require that formality, nor was any other proceeding necessary, thus making it a better document than the greater part of the other titles for lands in California. I fear you may have made use of the notarial copy sent -- if not, you will of course apply for the copy of the one at Monterey. I however, have hopes that your well known cleverness will have enabled you to find out this mistake, which would show itself, if you had applied for the document from Monterey. And at all events you may be enabled to withdraw the one sent and substitute the other; either, however, I take to be as good as the usual California titles, few of which have been officially delivered or sanctioned by the local authorities."
"Another difficulty however occurs. A document was made out in the City of Mexico when I purchased the Bars from Castillero, for the purpose of securing his consent and approval of the contract of Habilitacion; in this document is also inserted the grant of the two sitios, being an exact copy of what has been sent you, and directed to the governor. All this will show you how that matter stands. And as I think this document may be of use to you, I send a copy of the whole, leaving you to your own good judgment, to make such use of this document, and of what I communicate, as you shall think proper."
"I shall send the document alluded to in a separate cover to Probst, Smith & Co."
"I am, my dear sir, yours very truly,"
"ALEX. FORBES"
"There is an approval of the Habilitacion in all the documents of the sale of the other Bars."
"Endorsed: No. 9"
"[Private] Tepic, Jan'y 7, 1850"
"JAMES A. FORBES, Esq., Santa Clara."
"MY DEAR SIR -- I have received by Acapulco and Mexico, along with your other correspondence, your private letter to me, of the 25th and 28th of November, and beg to refer you to the letters of B., F. & Co. on the business of the mine."
"I am very sorry indeed to see that there is likely to be a difference between you and Dr. Tobin. This is a circumstance which may lead to very bad consequences, and it is strange that Dr. Tobin
should throw obstacles in the way when he sees you surrounded with so many already, and which can only tend to lessen his own profits."
"It is clearly to be understood that no verbal agreement was made here with anyone, nor any promises given which is not consistent with the contract as it is written. His brother never was engaged; on the contrary, he told me that his brother went to see what could be done in California, and if nothing offered he would send him back to take our portraits. This might have been said as a joke, but shows that no employment at the mine was intended for him."
"No maintenance for himself (Dr. T) or family was ever intended. He looked out here for a cook and took up one for that purpose. His new contract is much more advantageous than his former one with me, as he has his percentage on the whole two-thirds without limitation. I have read over this second contract with care, and it appears to me quite clear in respect to his charge at the hacienda."
" ART. 2. The aforesaid James Tobin agrees to direct the operations of the extraction of the quicksilver to the best of his abilities, and is to have the said operations under his exclusive management."
"This does not show that he shall have the general management of the hacienda."
"One of the causes for altering the contract, and for canceling the limitation of his profits was to make the contract less onerous as to the supply of ores, people and necessaries, which you will perceive by the 4th article. You are only bound to supply 'as amply as circumstances will allow,' whereas, by the original contract with me, it was obligatory on us to supply all those which he might require."
"This, in the present state of things, is, I consider, of much consequence."
"This is my opinion of what Mr. Tobin has a right to demand, but I am sure you will not stand on mere points of right or risk the interests of negotiation for trifling pretensions which may be put forth. Much must be sacrificed in principles to conciliate a troublesome person, and I still most earnestly hope that your prudence will enable you to keep up cordiality between you. I shall write my opinion to Dr. Tobin, and give him my strongest advice to lay aside all vexatious pretensions, and enjoin him to proceed in good will and amity, which can only tend to his own interests and those concerned in the mine. I hope he will listen to my advice."
"The amount of capital is getting to be enormous, and the company are beginning to get astonished. If, however, you can once
get under way all will be well, if you could only get a couple of cylinders up in any temporary way. They would supply the placeres."
"Whenever you have more than is wanted for that, you will, of course, send it down here, more or less, by the steamer."
"Strange as it appears to me, a Mexican merchant, 'Lizardo,' sends up one hundred and thirty-six flasks by this steamer, and between two and three hundred go by next conveyance. It is shipped by B., F. & Co., as agents! We have not one bottle here, but there are some still of the California quicksilver in Sonora."
"I am glad you have taken young Mr. Thom in your house; please remember me to him, as also to Mrs. Forbes and your family."
"I am, my dear sir &c., yours truly,"
"A. FORBES."
"James A. Forbes, Esq., Santa Clara."
"Webster will go up with a pacatillo by this steamer if he can get his things on board. If you can do anything for him you will oblige me."
"A. F."
"By the tenor of your letter, I have hopes that you will have got rid of the villainous proceedings of Walkinshaw and his party."
"I hope the document which now goes up (the Habilitacion &c.) will be useful. Castillero is somewhere in Lower California. We have not heard from him, but he must be somewhere about La Poz."
"Mr. Spence of Monterey writes me of date of the 22d Nov. that he had advanced to Mr. Walkinshaw about $2,000, and informs me that although he had written him several times, he had received no answer, and that neither principal nor interest had been paid. I have advised Mr. Spence to inquire of you respecting this transaction."
"I hope Mr. Probst, with your assistance, if necessary, will push the claim of the Mazatlan debt against Walkinshaw."
"I have a letter from Alden, in which he speaks of Walkinshaw in strong terms. I hope you will keep poor Alden in your service; he speaks of his former service not being properly paid for, and of his accounts not being settled."
"Endorsed: No. 10. "
"Santa Clara, 29th Jan'y, 1850"
"MY DEAR SIR -- I have rec'd the copy of the contract of Habilitacion and as you request me to address myself to B., F. & Co., on the affairs of the mine, I have now written to them upon this particular subject to which I request your earnest attention, not as regards the habilitacion, but another document which you know of."
"I am, my dear sir, yours faithfully,"
"JAS. ALEX. FORBES"
"[Very Private] Tepic, February 3, 1850."
"James A. Forbes, Esq., Santa Clara."
"MY DEAR SIR -- I had the pleasure to write you of date the 7th January, which went by last month's steamer, to which I refer. I have since received your letters by Reyes dated the 27th and 31st of December, and 8th of January. I shall not go minutely into the whole valuable information you give me, nor into the statements so very interesting to myself and those concerned in the mine of New Almaden. By those communications I have every reason to believe that by your indefatigable and energetic proceedings you will be enabled to defeat all the vile attempts which have been made to rob the legitimate owners of their property."
"The conduct of Dr. Tobin is inexplicable, but I think I can perceive that you are somewhat of opinion that he may be heard and protected by the Company, but I will at once put you right upon that point, and assure you such will not be the case. All here are most indignant at his conduct. You must and will be supported, and all I wish and hope for on your part is that you act in a manner towards him which may enable you if possible to avoid a rupture and contentions which may lead to bad results. You say that Dr. Tobin comes down in the next steamer; if so, he will be here in a few days. This I shall not be sorry for, for the matter would then be soon settled. He would most assuredly not be asked to return, nor even permitted. He has no right to desert his post, and I hope you have not given him leave of absence. I have no doubt but that you could, with Gay, Alden, and the other person you mention, do well enough for a time, and easily put up a part of the apparatus and work it until a proper scientific person can be procured and sent up to you."
"It so happens that almost the whole of the 'accionistas' and
'aviadores' of the mine will be here in a few days. Mr. Barron is now here, and is attorney for those absent. La Torre comes here to visit Mr. B. Castillero has returned and is also here, so am I and William Forbes. This leaves out only the four California bars, and I think I may venture to act for you, if necessary, as you verbally told me I might. This will give us power to deal with Dr. Tobin if he comes this way, and to regulate any other matters which may be thought necessary. For my own part, I have no power, as you know, the management being in the hands of others, and therefore I beg you will take all I say as purely private and confidential, without attaching any authority to my suggestions. But of course, as I am a proprietor, and in the confidence of the managers and other proprietors, my opinions and advice may be worth attending to and be of some use to yourself as well as to them. I shall continue to write to you as long as I remain here, and will be most happy at all times to hear from you."
"I wrote by last packet to Dr. Tobin as a friend, and attempted to conciliate him in a mild way; perhaps he makes too much of this letter, and I think it better to send you a copy to enable you to see exactly what I have said to him. His leaguing himself with Mr. Walkinshaw is too bad. Reyes has told me of all that has passed, which is almost incredible. I am glad to find that you are peaceably to get rid of Mr. W. Mr. Tobin has sent a plan of his proposed establishment; this you must on no account allow to be put in execution. You are aware that it would never do to go about large magnificent works at once, particularly as you know the whole must be at the cost of the 'aviadores' and left for the proprietors at the end of the contract. You are acting for the aviadores, and it is your duty to restrict the works within reasonable bounds, and to only erect temporary and absolutely necessary works until some funds shall be realized from the mine. However desirous that it may be that the works should be set up by Dr. Tobin, yet if he will not go on in good faith, or if he attempts to injure the company, or refuses to obey your just commands, and resists your authority, or stops or impedes the works, and thereby breaking his contract, I think he may be discharged by you, always taking care that you have a very clear case, and nothing left in doubt to cause litigation. But this is only my private opinion. I have no authority to empower you to do so, but it would no doubt be approved by the company, none of whom look favorably on the
Doctor's proceedings. The most effectual and safe way, however, would be his coming here without leave. He has not written by last opportunity, nor will he be written to by this steamer."
"I have every reason to believe that the documents you mention will be found in the City of Mexico, and as Mr. Castillero will return there they will no doubt be procured, but we are at some loss to know what is exactly wanted, and I beg you will, by next steamer, give a sketch of the documents you allude to, particularly a description of the limits of the grant. I think you must not have received the information sent you of the existence of the grant of the two sitios directly to Castillero, and registered in Monterey, nor am I sure if this will mend the matter. In a few days, however, we will again hear from you and act accordingly."
"One last resort I will mention to you, and it is with great repugnance that I do so, which is that if the Berreyesas were unreasonable and intractable, or insist on the extension of their lands to our hacienda, the company would be justified in promoting the invalidation of their own title to their Rancho."
"If they make it over to anyone else, and particularly to our enemies, certainly this course must be pursued. If no opposition or disclosures are made, and if the American government turn out to be liberal in conceding the Ranchos to the present holders, the Berreyesas and others may be left in possession; but if active measures were taken by an adverse party, many of the titles would be worthless, and I have reason to think from what came to our knowledge when I was in California, the title of the Berreyesas is not of the best. This I throw out for your consideration, and I should think these people would do themselves no good in opposing you."
"We think at present that it may be the best place to get an authenticated copy of the approval of the Mexican government of the grant of three thousand varas given by the Alcade on giving possession of the mine. As a doubt may have started as to whether the alcalde, acting as the 'Juez de Mineria,' had a right to make this grant, yet if approved by the government of Mexico before the possession of the country by the Americans, there could be no doubt on the subject. This takes in our hacienda, and unless opposed by the Berreyesas would, I should think, settle the question."
"Castillero says such approval was given, and that on his arrival
in Mexico he will procure a judicial copy of it. This is the plan we shall adopt if we hear nothing from you to alter this resolution."
"Since writing the foregoing, I have looked over your private letter to Wm. Forbes, dated 18 October, and find you state the limits or boundaries as follows:"
" The boundaries must be expressed as joining on the north and northwest by lands of the ranchos de San Vicente and de los Capitancillos, and on the east, south and west by Serainia or 'tierras baldias.'"
"Castillero is not certain of accomplishing this latter plan, and thinks the first -- that is, the 3,000 varas, the best."
"There goes up by the steamer another bill against Mr. Walkinshaw, and in favor of B., F. & Co., for $1,000, so that Probst, Smith & Co., have in our favor and against him:"
By A. Forbes, accepted . . . . . . . . . $ 1,758
B., F. & Co., about. . . . . . . . . . . 10,000
B., F. & Co., bill . . . . . . . . . . . 1,000
-------
In all . . . . . . . . . . . . . . . $12,758
"I am, my dear, sir yours, very truly,"
"ALEX. FORBES"
"James A. Forbes, Esq., Santa Clara"
"I send you five Atlas newspapers."
"Endorsed: Private, A. F. 3d February, 1850. Answered 26th February. No. 11."
"[Private] New Almaden, February 26, 1850"
"ALEXANDER FORBES, ESQ.,"
"MY DEAR SIR -- Your favor of the 3d instant came duly to hand, and in answer to that part of it relating to the documents sent up to me in November, serving as titles to this property, I will again address you 'por seperado.'"
"I really did have more faith in the tact and ability of Castillero to perceive the important objects set forth in my memorandum of what was to be done nine months ago, in Mexico, by that eccentric individual, and that with the powerful influence that he was to have exercised by the efficient aid that was to be lent to him, he would meet with no obstacle to the attainment of the important documents explained in that memorandum. But Castillero has deceived himself, for he thought that boundaries were not necessary, as I shall
presently show you. He succeeded in obtaining the grant of two sitios to himself on the mining possession in Santa Clara while that very act of possession declares that the mine is situated on the lands of one Jose R. Berreyesa, five leagues distant from Santa Clara, and you will at once perceive that such a discrepancy would not fail to attract the attention of the U.S. Land Commissioners and to put the case of the mine in great risk in the judicial ordeal to which its title will be subjected."
"Without troubling you with what I have so many times written and explained to you verbally on the importance of the acquisition of the document, I will only say now what it must be, and it is this:"
"1st. A full and complete ratification of all the acts of the alcalde of this jurisdiction in the possession of the mine."
"2d. A full and unconditional grant to Castillero of two sitios of land covering that mining possession, expressing the boundaries stated by me in the memorandum I left with you in Tepic. Both of these documents to be of the proper date, and placed in the proper governmental custody in Mexico, and"
"3d. The necessary certified copies of them duly authenticated by the American Minister in that capital, taken and sent to me at the earliest possible moment."
"You will receive my advice of the 19th inst., regarding my views of not supplying W., with any quicksilver."
"Yours sincerely,"
"JAS. ALEX. FORBES"
"Endorsed: Letter to A. F. Private, IV. February 26, 1850."
"Tepic, March 2, 1850"
"DEAR SIR -- We duly received your letters up to the 29th of January, per steamer Panama, which have had our best attention, and as our friend, Don Ysidoro de la Torre of Mazatlan has been appointed, and has consented to proceed by this steamer to California, with full powers to act in behalf of all concerned, it is needless to enter into any particulars respecting the various matters contained in your letters, as you will be enabled personally to communicate your views to him and to arrange everything in the best manner possible. Mr. De la Torre came to Tepic to meet Mr. Barron and the others concerned in this negotiation, and it was deemed necessary that some of the partners of the 'habilitacion'
should proceed to New Almaden in order to consult personally with you, and to arrange respecting the future operations of this enterprise, and Mr. De la Torre has been prevailed upon, at much inconvenience to himself, to undertake the present charge."
"We are sure no one could be named more agreeable to you than Mr. De la Torre, and have no doubt but that his presence will be most useful in sanctioning and arranging a plan of future operations, and of assisting in adjusting any difficulties which now exist, particularly as he has the full authority of the association to act as to him shall appear necessary. Mr. De la Torre takes up with him Dr. Tobin, in the hopes that he will resume his labors and act in conformity with his duty."
"Mr. Barron and Don Andres Castillero are about to proceed to the City of Mexico, and will attend to what you have recommended."
"Soliciting your kind attentions to our friend, Mr. De la Torre, we are, dear sir, your most obedient servants,"
"BARRON, FORBES & CO."
"James A. Forbes, Esq., New Almaden"
"Endorsed: No. 12"
"Tepic, March 11, 1850"
"MY DEAR SIR -- The Oregon's letters have just come up, and I give this a chance of reaching San Blas before the arrival of the Panama steamer. Mr. Barron and Castillero have gone off to Mexico, and I write them today respecting the document you know of, which if possible will be procured. The news of your having got up four cylinders gives us all much joy, and I gave the good news to my friends. M. La Torre don't expect this -- unless he knows by the steamer which touched at Mazatlan. You will perhaps see him and Dr. Tobin before this reaches you, who both go by this conveyance. Let us have Quicksilver and all will be well."
"I am most happy to hear you have found an abundant mine or Limestone, this is of much importance. Your official letter about the vessel will be forwarded to the Foreign Office."
"In great haste, yours truly."
"A. FORBES"
"Endorsed: Alex. Forbes, March 11th, No. 14."
"Tepic, April 7, 1850"
"MY DEAR SIR -- I wrote to you by the California, dated the 23d February, and since then have received by the 'Oregon' yours of
the 19th of that month. I was very happy to hear that you had got up some of the cylinders, and trust that you are at this time distilling quicksilver. I hope Dr. Tobin will now attend without any difficulty to the superintendence of the apparatus, and am sure that you will on your part do everything in your power to promote harmony and forward the interests of all concerned. You will, I know, find great relief and pleasure by the arrival of your friend La Torre. He will during his stay take much responsibility off your shoulders, and from his decision and conciliatory disposition assist in smoothing many of the difficulties which surround you. Mr. Barron and Castillero have arrived in Mexico, and have every prospect of finding the documents you are aware of, and which will, of course, be forwarded as soon as possible."
"I am, my dear sir, yours, very truly,"
"ALEX. FORBES"
"James A. Forbes, Esq., New Almaden."
"I forward a letter received from Mr. Murray, of the foreign office."
"Addressed: James A. Forbes, Esq., New Almaden"
"Endorsed: Alex. Forbes, April 7, 1950"
"[Private] Tepic, June 6, 1850"
"MY DEAR SIR -- I had the pleasure to receive your letter of the 28th of April by the steamer, but of course not in time to reply by the one from Panama, which arrived the day after that from San Francisco."
"I remark what you say of Dr. Tobin and the cylinders, which has caused me some uneasiness, and I wait with anxiety to know how those he is putting up himself will succeed, which we expect to do by the steamer which ought to arrive at San Blas on the 10th instant."
"I find that it has been deemed necessary to appoint an American citizen as manager of the mine, and am most happy to know that this meets with your approbation. This approval on your part I am quite sure will be estimated as it deserves, and shows to those interested in this enterprise that you do not hesitate to sacrifice your own private interests for the general benefit of the concern. For my own part, I feel most grateful and highly obliged, and the members of the house of Barron, Forbes & Co. express strongly the same feeling. "
"We are all convinced that whoever may be in the management of the New Almaden will receive the assistance of your knowledge and experience, and the company and proprietors cannot fail to be sensible of your services. It gives me great pleasure to hear from yourself as well as from M. La Torre that the closest friendship had existed between you, and that both were animated by the same desire of making the mine productive. I had the pleasure to know Mr. Halleck at Monterey, and I think a better selection could not have been made. I think he is a gentleman with whom you will be much satisfied as manager of the mine, and who I have no doubt will be glad to avail himself of your experience in whatever may be new to him."
"I am very happy to hear that Mr. Walkinshaw has been settled with, and that all annoyance from that or any other quarter has ceased."
"I shall avoid saying anything respecting the Berreyesa affair till the letters by the steamer come to hand, which will no doubt confirm the arrangement between them and Mr. La Torre."
"I am, my dear sir, yours truly,"
"A FORBES"
"Endorsed: No. 15"
"Tepic, January 10, 1851"
"J. A. FORBES, ESQ., Santa Clara"
"MY DEAR SIR -- I was duly favored with your obliging letters of the 12th and 29th of Nov., in which you mention, that I had stated some disappointment by your not writing, and allude to some other matters I have no recollection of. I have always reckoned upon you as a friend, and am well convinced that you have every disposition to promote the interests of the mining negotiation as much as in your power, which William Barron confirms in his late letters to the house."
"We have nothing to fear from the lawyer Jones should he come here, but I understand he has gone to the Sandwich Islands, and is likely to make a journey to the other world. Mr. Barron has caused a most minute examination to be made in the archives in the City of Mexico, the result of which has been that neither Alvarado nor Micheltorena was authorized to grant titles for lands in California, nor does there appear to have been any approval or confirmation of such grants as they took upon themselves to
grant -- so that the title of the Berreyesa's land, either by Alvarado or by Micheltorena, if opposition is made, is valueless."
"This being the case, few of the California titles would be good if determined by the vigorous application of the Mexican law. Mr. Barron has procured documents to confirm this view of the case, but we have resolved not to make use of such documents except in our own defense, as we do not wish to injure anyone; but in the case of the Berreyesas, we are compelled to use all means in our power to counteract their proceedings or those of their abettors if they persist in their late proceedings."
"If it was not that I am an interested party, I would recommend to them to secure their Rancho by silence, for I am well assured that by adopting hostile measures against us, they may lose it altogether. The Rothschilds have a large quantity of quicksilver on hand, and the miners thought that by competition between them and New Almaden it might come down greatly in price, and kept off from purchasing, but an agreement has been come to between both parties by which this competition is done away with, and the price will be maintained at a fair rate."
"In consequence, however, of the expectation of the miners few sales have been made and little of the proceeds of sales realized, but from the arrangement alluded to it is hoped that the sales will soon be considerable. You will find by B., F. & Co.'s letter that your wishes have been complied with, in debiting you with the $1,700 in the account of your share of the sales of quicksilver."
"With best respects to Mrs. Forbes and your family, I am, my dear sir, yours, very truly,"
"ALEX. FORBES"
"Addressed: James A. Forbes, Esq., San Clara, California"
"Endorsed: Alex. Forbes, Jan. 10, 1851. No. 17."
These were the letters in the package deposited with Davidson. Mr. Lawrence and Mr. James Eldridge, who had an interest adverse to that of the claimants, had agreed to pay James Alexander Forbes $10,000 down and $10,000 more at a future time for the privilege of using them to compel a compromise, and it was stipulated that until needed for that purpose they should remain in Mr. Davidson's custody, whence they could chanrobles.com-red
not be taken by either party without the consent of the other. The process which brought them into court was issued at the instance of the District Attorney of the United States, who, in doing so, acted upon his own sense of official duty, not prompted by any private party and without knowing anything of the agreement between Lawrence and J. A. Forbes. Forbes received the consideration he bargained for.
There was another letter from Alexander Forbes to James Alexander Forbes, not in the package produced by Davidson, of which the following is a copy:
"Monterey, March 28, 1848"
"MY DEAR SIR -- I have to apologize for not writing you before this as I promised I would respecting the purchase of your shares in the mine of New Almaden, but really, as your opinion of their value is so widely different from mine, I considered it almost hopeless to make you any further proposals."
"I do not, however, leave this without making the necessary arrangements to effect that object, and have therefore authorized Mr. Walkinshaw and Manl. Dias to wait on you with my final offer for the purchase of those shares."
"Were I not already so deeply interested in this negotiation, I would never think of investing another dollar in it, but this interest renders it necessary for me to have the control of all the shares in order that I may dispose of the whole whenever an opportunity may offer, and save myself from the heavy loss that would ensue should it unluckily leak out that in fact the documents procured by Castillero in Mexico, as his title to the mine and lands, were all obtained long after the occupation of California by the Americans."
"This unfortunate irregularity cannot be easily repaired, and serious objections might be made even to the legality of our new act of possession."
"I need scarcely remind you of the importance of preserving profound secrecy in all these matters, and in case you do not accept my offer, I hope you will not fail to send me your power to act for you in any arrangement I may make."
"I send you three vols. of the Mechanic and Engineers' Magazine, which I beg your acceptance of, and I hope you will continue
your correspondence as usual, and inform me of what is passing in California."
"I am, my dear sir, yours, very truly,"
"ALEX. FORBES"
"James A. Forbes, Esq., Santa Clara"
J. A Forbes produced this some months after the others had been given in evidence. He swore it was an exact and true copy of the original, which he had received in regular course, and that the original was in the hand writing of Alexander Forbes. Why he did not produce the original itself he undertook to explain by declaring that he had it in a carpet bag at a hotel in San Francisco, and while he was out it was stolen, though his room and his carpet-bag were both locked, and he did not perceive, when he came back, that either had been disturbed. He was subjected to a long cross-examination, which did not establish the integrity of his conduct or the good faith of his statements, but seriously injured his credit. In addition to this, the claimants attacked his general character.
James J. Birney was called to support the statement of Forbes, and he swore that the copy of the letter offered in evidence was made by him; that it was a true copy; that he knew the handwriting of Alexander Forbes, and that the original, from which he copied it, was written by Alexander Forbes. The answer of the claimants to Birney's testimony was the production of witnesses who swore that his reputation for veracity was not such as to make him a safe witness.
When Mr. Trist went out to Mexico in 1848 to negotiate a treaty of peace, he was instructed by Mr. Buchanan, the Secretary of state, to insist upon a cession of certain territory and to stipulate that all grants in the ceded territories made by Mexico, after the 13th of May, 1846, should be absolutely null and void.
Mr. Trist reported to the State Department the treaty made by himself and the Mexican Commissioners, which contained the following declaration on the part of Mexico:
"The Mexican government declares that no grant whatever of lands in Texas has been made since the second day of March, one
thousand eight hundred and thirty-six, and that no grant whatever of land in any of the territories aforesaid has been made since the thirteenth day of May, one thousand eight hundred and forty-six."
Mr. Trist, in his dispatch to the State Department of January 25, 1848, (accompanying the treaty), explains why the treaty had taken this form instead of the stipulation which he had been instructed to make.
"With respect," said he,
"to grants of land made by the Mexican authorities, the proviso contained in my instructions was strenuously objected to upon a point of national honor and decorum. No such grants had been made since the 13th May, 1846. This they knew, and consequently the proviso could have no practical effect. But it is implied that they have been made, or might have been made, and that nevertheless the government committed the injustice of revoking them, which in fact it had authority to do. Moreover it involved an acknowledgement that from the day when hostilities broke out on the north of the Rio Bravo, the Mexican government had lost the right to make grants of land in any part of its territory subsequently occupied by us. Feeling the force of these objections, I requested to make sure of the fact stated by them, and also in regard to no grants' having been made in Texas since the revolution, which had been incidentally mentioned by one of them (the Mexican negotiators). And this having been done in a manner which left no shade of doubt on their minds, the declaration which will be found at the end of Article 10 was agreed upon in lieu of the proviso."
After the treaty had been ratified by the president and Senate of the United States with some amendments, Messrs. Clifford of Maine, and Sevier, of Arkansas, were sent out as commissioners to exchange ratifications with the Mexican government. Their dispatches to the State Department, only a part of which has been printed, show that there was much discussion between them and the Mexican Minister of Foreign Affairs on the subject of the land grants, and particularly with respect to the effect which might be produced upon the titles by the suppression of the 10th Article. The necessary explanation was given to quiet these fears. The dispatches do not state specifically what the explanations were, because the substance of them was written down in the form of a protocol and signed by the representatives of the two governments. The following is the explanation referred to, so far as it relates to this subject: chanrobles.com-red
"The American government, by suppressing the tenth Article of the Treaty of Guadalupe, did not in any way intend to annul the grants of land made by Mexico in the ceded territories. These grants, notwithstanding the suppression of the article of the treaty, preserve the legal value which they may possess, and the grantees may cause their legitimate titles to be acknowledged before the American tribunals."
"Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territories are those which were legitimate titles under the Mexican law in California and New Mexico up to the 13th of May, 1846, and in Texas up to the 2d of March, 1836. . . ."
"And these explanations having been accepted by the Minister of Foreign Affairs of the Mexican Republic, he declared in the name of his government, that, with the understanding conveyed by them, the said government would proceed to ratify the Treaty of Guadalupe as modified by the Senate and government of the United States."
Most of the evidence was given after the cause came into the district court. This is but an outline of it. Many documents and numerous details of fact, some of them not altogether without a certain degree of importance, are unavoidably omitted, the object being to give only such as appeared necessary to make the arguments of counsel and the opinion of the Court intelligible.
The Land Commission (Mr. Commissioner Thompson, dissenting) confirmed the title of the claimants
"to the mine, with the right of enjoying the privileges as mine owner, under the Mexican law, of three thousand varas in every direction from the mouth of the mine."
All the Commissioners concurred in rejecting the claim to two leagues, under the Lanzas dispatch.
The claimant appealed to the district court from so much of the decree "as rejects his claim for two square leagues of land granted to him in colonization," and the United States appealed from that part which confirms the mining privilege.
The opinion of the District Judge was in favor of confirming the claimant's title to the two leagues under the dispatch, but the circuit judge being of a contrary opinion, that part of the claim was rejected. Both judges agreed that the mining title, chanrobles.com-red
claimed under the proceedings before the alcalde, was legal and sufficiently proved, and it was accordingly confirmed with seven pertinencies each of two hundred varas square to be laid out in such manner as the claimants might elect, but so that the original mouth of the mine should be within them.
From the decree, of the district court both parties appealed to this Court. chanrobles.com-red
