^B I CORNELL UNIVERSITY LIBRARY BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND GIVEN IN 1891 BY HENRY WILLIAMS SAGE Cornell University Library HD268 .S31 (Titles to land in the city of §?,5J||,|j;r.3"'^ 3 1924 030 044 790 olin Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030044790 IN THE SUPREME COURT, OF THE STATE OF CALIFOENIA. ■***■ - WILLIAM HART, Eespondent, , V. BURNET ET ALS., Appellants. APPEAL FROM THE SUPERIOR COURT OF THE CITY OF SAN FRANCISCO. The question, which this case presents, is not new in this Court. It came up in Welch v. Sullivan, 8th Cal. Rep., p. 165. As in that case, the plaintiff claims title to the land in controversy, by a purchase at a sale under execution upon a judgment against the city of San Francisco. I. In Welch v. Sullivan, the three Judges delivered separate opinions. Chief Justice Murray rested his upon two grounds, viz : On the Spanish law as expounded in the case of Cohas v. Raisin, and on the authority of that case as a controlling and unaltera- ble precedent, conceding its exposition of the Spanish law tp be erroneous. Justice Burnett rested his exclusively upon the 14th section of the act of Congress of March 3d, 1851, to ascertain and set- tle private land claims in the State of California. Justice Terry expressed no concurrence, either in the expo- 2 sition of the Spanisli law contained in the case of Cohas v. Eai- sin, or in the construction placed upon the 14th section of the act of Congress by Justice Burnett, but he did concur with the Chief Justice, in regarding the case of Cohas v. Eaisin, as a final determination and settlement of a rule of law for Cali- fornia. Chief Justice Murray, said — "The question now remains to be determined, whether, admitting the case of Woodworth v, Fulton was law, this Court should adopt it, and abandon the case of Cohas v. Eaisin. As has been previously remarked, courts are not justified in overruling their former decisions, and unsettling established principles simply because error may have intervened." Justice Terry, said — "Whatever views I may entertain as to the correctness of the conflicting opinions in Woodworth v. Fulton, and Cohas v. Eaisin, considerations of public policy and justice, as well as regard for individual rights acquired under the law, as announced by the highest judicial tribunal, imperatively demand of us a strict adherence to the doctrines of the latter case." For reasons of policy and expediency satisfactory to them, two of the Judges then concurred in holding that the de- cision of Cohas V. Eaisin shall be maintained. On no other point was there a concurrence of opinions in the case of Welch V. Sullivan. That case is a sign-board, which points us to the case of Cohas v. Eaisin, as conclusive against our right. II. I do not propose to review the case of Cohas v. Eaisin, but to discuss the question, in limine, whether it can be re- viewed. If it cannot be, there is an end of the present case. If it can be, I am well assured that the principles of a determi- nation, which is to be the rule of law in this State on questions of so much gravity, can now be temperately discussed, and ad- judicated without passion. The animosities, which once exist- ed between rival interests arrayed under the cases of Wood- worth V. Fulton, and Cohas v. Eaisin, respectively, have, in a great measure, died out in the community, and any remnant of the personal bickerings of the partizans of those decisions would find no response in this Court. For my purpose, I liave a right, wMlst we remain unheard,, to assume that Cohas v. Eaisin, which lies behind "Welch v. Sullivan, is wholly without foundation in fact or law. For ex- ample I may assume, that in fact, there never was a municipal corporation in Mexican times, on the spot where San Fran- cisco stands, and that if there had been, there never was any special grant, or general law, which gave it a title to any land. The proposition which I have to combat, is, that, admitting it to be true, that an error even of this magnitude, does, in fact exist in the decision of this Court, rendered in the case of Cohas V. Eaisin, yet it cannot now be corrected, but has passed irrevocably into law. This is the doctrine of the case of "Welch V. Sullivan, which closes the door against discussion by coun- sel, and judgment by the Court. That doctrine I seek to have repudiated, whatever may afterwards be the result, when the arguments of counsel have been heard, and the reflection of this Court bestowed upon the principles announced in Cohas v. Eaisin. III. The rule, which, we are told, is to be thus jealously guarded against our approach, was originally established with- out the aid of any argument by counsel. The report of the case of Cohas v. Eaisin, 3 Cal. p. 445, informs us that Mr. Hu- bert was counsel for the plaintiff and appellant, and that he did not touch the question of fact, whether there existed in Mexican times a municipal corporation on the spot where San Francisco now stands, or the question of law, whether, admit- ting the existence of such municipal corporation, it had title to any land. He rested his case entirely .on these propositions, viz : " There is no breach of warranty, unless there is actual ous- ter, or eviction. 4 Kent, 471. Defendant, in possession under plaintiff's title, is estopped from questioning it. 1 Cal. Eep. 120. The covenant that plaintiff will execute a good warrantee title, refers to the deed itself, and not to the title of the prop- erty." 20 Johns. 129. This was all the light the Court derived from the argument of counsel, to guide them through the dim mazes of Mexican history, and Spanish jurisprudence, which they threaded in 4 !ohas V. Eaisin. And not only was there no argument of ounsel on the questions there decided, but the case required one from the Court. Mr. Hubert's points were well taken, nd sufficient to insure a judgment for the plaintiff. The Court ppears to have taken no notice of the manner in which Mr. lubert thought proper to tre^t his case, but stepped over im to overrule the case of Woodworth v. Fulton. That case ras overruled, and the new rule established, without argu- aent of counsel, at the Oct. Term of 1853. It had been de- ided at the Dec. Term, of 1850, and more than two years af- srwards, was regarded as the law of the land, at least by the .efendant, in Cohas v. Raisin. When overruling it, Justice leydenfeldt used the following language : "But however great is my regard for the doctrine of stare heists, there is certainly no principle which compels its observ- nce, when a rule well settled, and universally acquiesced in, las been violated." Chief Justice Murray, in his opinion, in Welch v. Sullivan, 1. 201, said : " The case of Cohas v. Eaisin, has been often affirmed by this Jourt." See Leonard v. Darlington, and Dewey v. Lambier. The first mentioned case, is to be found in 6th Oal. Reps. p. 23. The plaintiff sued in ejectment for a fifty vara lot, at the orncr of Beale and Harrison streets, San Francisco, claiming itle by deed from the Commissioners of the Funded Debt, of be city of San Francisco. The Board was composed of five aembers ; only three had ordered the sale of the lot in ques- Lon, and signed the deed. The Court held that — " The deed in question, being the act of only a portion of the Commissioners, did not pass a title sufficient to maintain this ction." A rehearing was granted, but this is all that appears rom either judgment. The second case mentioned by Chief Justice Murray, is Diind in 7th Cal. at page 347. Dewey and Welch were joint snants of certain premises, in San Francisco, deriving title inder a grant by an American Alcalde. Dewey sued in eject- lent, alone. The Court held that— " As Welch, and Dewey the present plaintiff, were joint tenants, they should have joined in this action, and the failure to do so is fatal to a recovery." Judgment was accordingly rendered for the defendant, but he is admonished when he comes again not to question the decision in Cohas v. Raisin, as he had shown a disposition to do, for that the Court did appro^ bate that decision and meant to abide by it. That the rule which now stands in our way was in the be- ginning established without argument of counsel, on the over- throw of a decision which had stood during the first two years of our judicial history, and longer ■ , that it has since been affirmed only in the manner of the cases of Leonard v. Dar- lington, and Dewey v. Lambier , are considerations which give a peculiar stress to the hardship of the decision in Welch V. Sullivan, which tells us that it is now neither permitted to us to speak, nor to the Judges to think of this rule ; that there can be no more argument or judgment upon it. We are commanded to remain silent on that which hag never yet been spoken to in any case in which the question has been adjudged — which has been affirmed, but in no case where it was in issue — and which, in argument, must be admitted to be contrary to the fact, and without foundation in law. IV. The plaintiff stands in the shoes of the City of San Francisco. It is the city it may be said, which has recov- ered in ejectment a small parcel of land lately from Sullivan, and another small parcel formerly from Raisin, The law is the same for all plaintiffs. If a natural person recovers in ejectment against two at different times, no man ever pretended that a third was concluded by the verdict and was not to be suffered to question any or all of the facts of the plaintiff's title. The city of San Francisco, the artificial person plaintiff' then, sues for the land here in question, and derives title to it from a certain municipal corporation alleged to have existed when California was Mexican. The defendants desire to show that there never was, in fact, such a municipal corporation. But Cohas V. Raisin, said : " That before the military occupation of California by the Army of the United States, San Francisco was a Mexican pueblo, or municipal corporation," etc. And Welcli v. Sullivau now says, that there can be no ques- oning of Cohas v. Eaisin. Between A. and B., it has ever een known that the defendant could show that the plaintiff's rantor was a myth, notwithstanding that in any number of ther cases the plaintiff might have succeeded in persuading ourts and juries that he was a real person. But it is not to be ermitted to prove that the " municipal corporation," through 'hich the city of San Francisco claims, is a myth, because this lourt, without the examination of witnesses to that fact, and dthout hearing argument of counsel — and contrary to the )rmer convictions of this Court, on a certain occasion, became onvinced that the "municipal corporation" in question was a eal person. Whether existing by special charter, or under general laws, le creation of a corporation is as much a question of fact as be birth of a man. "Whether the Court was right in its find- ag of this fact or not — even admitting, therefore, that it was ^rong — we are told that we are concluded by it, though we rere not parties to the suit in which it was found ; and that it aust remain as a rule of property^ that there was a municipal orporation, to which the city of San Francisco is successor, n this, the case of Welch v. Sullivan, decides not that Cohas '. Eaisin is an established principle of law, but a patent of ands to the city of San Francisco. A decision which con- ludes in a suit between two individuals, all the world, ipon any one fact necessary to establish title to land, is every rhit a patent. If the Court can in this form grant patents to corporations, t may surely do the same to individuals, and, doubtless, qually meritorious cases can be found for the exercise of its )eneficence towards the sentient natural man, as towards the oulless creations of law. Another difficulty arises when we look to this case of Cohas '. Raisin, as the patent of the city. We have no light as to vhat land it includes, whether we are in it or not — no bounda- ies whatever are given. Chief J. Murray has given us his Qdividual opinion, which clears up, somewhat, this point, but leither of his associates concurred with him, and the judg- aent of the Court in Welch v. Sullivan, but leaves us where Cohas V. Eaisin placed us. As then that case gives us no boundaries of the supposed predecessor of San Francisco, and as judgment is to go against us by its transcendant authority, it follows that the city of San Francisco must recover against us, no matter where we are. We can avoid this truly unfortu- nate position only by this Court repudiating Welch v. Sullivan, and opening Cohas v. Eaisin for argument — when, perchance, we may show that there were no boundaries, because there was nothing to be bounded, and e converso, that there was nothing to be bounded, because there were no boundaries — that there were indeed people, but in the sense of a " munici- pal corporation," no pueblo. Or the contrary of all this may appear. But in either case, then only will there have a deter- mination of our rights in the present issue, according to the laws. V. Welch V. Sullivan is the opinion of two members of this Court, not upon the points decided in Cohas v. Eaisin, but as to the weight of authority which attaches to that decision. The weight of a given authority must, necessarily, be accord- ing to the understanding and the conscience of the Judges before whom it is offered, as the weight of evidence is accord- ing to the understanding and conscience of the jury to which it is submitted. A second verdict, rendered without consid- eration of the evidence and upon the authority merely of the first, would add nothing of certainty to ,the fact which was found. The concurrence of successive juries, upon full con- sideration of the evidence in the same finding, will soon confer upon a fact all the certainty to which the human mind is capa- ble of attaining. And thus two decisions, all else being equal, are, necessarily, of a greater weight of authority than one, but this supposes that the principle established has been twice con- sidered, and twice carried conviction to the mind of the Court. But if the principle has been considered but once, and carried conviction to the mind of the Court but once, the second case resting avowedly on no consideration or conviction, but exclu- sively on the mere authority of the first, is not, of itself, a new authority on the point decided. It is a declaration that the Judges in the second case waived their own judgment, and in tieir discretion thouglit pfoper to defer to the judgment of the udges in the first. They cannot forestall nor cut off the dis-' retion of their successors, whbj with reference to the first idgment, will stand precisely in their place, and in exercise f their discretion may bow to it in like manner, or may not. ^here will still be but one instance of the exercise of the judi- ial mind, resulting in conviction, and it is the accumulation of [lose instances which constitute what is called authority — ^iff^hat i intended by stare decisis— -what Controls as well as informs idicial discretion. This dourt might, in their discretion, decline to investigate tie foundations of Cohas v. Eaisin, and waive their own juiig' lent in deference to the judgment of the Judges who rendered tiat decision, but we submit that their obligation to do so ia either increased nor diminished by the fact that some of tie udges, of which the Court was then composed, did, in Welch . Sullivan, think proper to adopt that course — that precedenls re but of judgments, and not of the abnegation of judgment— ^ nd that there is no precept of the law by which that which is iscretional shall prevent discretion. We are then to consider authority as it stood at the date of le rendition of judgment in Welch v. Sullivan, and determine le propriety of covering the case of Cohajs v. Eaisin with the lantle of stare decisis, as that question then stood — in fine, as if le present case was Welch v. Sullivan. That case will not e suffered to embarrass this inquiry. It is not a precedent iimulative to that of Cohas v. Eaisin, because it does not pre« jnd to adjudicate the same questions. It is not a precedent 'hich measures the obligation of the maxim of stare decisis, for lat is a subject matter not susceptible of precedents, and 'hich can have no measure but the mind and conscience of le Judges. Because I believe such to be the nature of Welch , Sullivan, that it cannot be placed on the list of precedents^ nd must operate only by the force of its reason, I use the spression of repudiating instead of overruling that case, hoping lat the Court will find a better reason for its guide. VI. Welch V. Sullivan carries the doctrine of stare decisis )o far. That doctrine is of somewhat different application to 9 the common law, and to statutes. I shall examine it under these heads separately. VII. The t-ule of abiding by former precedents, has its widest field of operation in the common law. The reason is obvious, as decided cases there fill the place both of a written text and of the construction of the text. For a com- pendium of all the requisite learning on the rule and its quali- fications, I refer to 1 Kent Oh. XXI, pp. 525-531 ; Broom's Legal Maxims, pp. 109-114:. Omnis innovatio plus novitate perturbat quam utilitate prodest. It will not be necessary to look beyond these elementary works further than for illustrations. We observe in the outset that there never was such a rule as stare decisis, in the absolute and rigorous sense of those words. When Kent was writing the first volume of his Com- mentaries, there were already, he tells us, more than " one thousand cases to be pointed out in the English and American books of reports which have been overruled, doubted, or lim^ ited in their application." And he adds that : " It is more than probable that the records of many of the courts in this country are replete with hasty and crude decis- ions ; such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our laws impaired, and the beauty and harmony of the system destroyed by the perpetuity of error." The whole scope of the present argument is to obtain from this Court the permission to show, if we are able, that the case of Cohas V. Eaisin is one of those hasty and crude decisions, which has crept into the reports of California, and whichj therefore, this Court should examine without fear and revise without reluctance, notwithstanding the expressions to the con- trary in Welch v. Sullivan. The law, like all other institutions of man, has received its corrections and undergone its changes with the altered aspect of the world, yet in the very earliest times the rule of stare decisis was most insisted on. " Throughout the whole period of the Year Books, from the reign of Edw. Ill, to that of Henry VII, the judges were 10 incessantly urging the sacredness of precedents, and that a counselor was not to be heard who spoke against them, and that they ought to judge as the ancient sages taught. If we judge against former precedents, said Ch. J. Prisot, it will be a bad example to the barristers and students at law, and they will not give any credit to the books, or have any faith in them. So the Court of King's Bench observed in the time of James I, that the point which had been often adjudged ought to rest in peace. The inviolability of precedents was thus in- culcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period." 1 Kent, p. 529. /Stare decisis, however, has not stayed the progress of juris- prudence heretofore, and we ask now nothing more than that it may not in California be brought to a full stop at the case of Cohas V. Raisin. The rule, or maxim, is but a concise expression of the con- servatism of the law intended not to prevent altogether the progress of jurisprudence, but to render its movements circum- spect. The cases in which it is applied, may, with sufficient accuracy, be arranged in three classes : Those in which the reason of the rule is unknown, and its soundness is presumed as a concession to the wisdom of an- tiquity. Those in which the judge does not find it altogether convin- cing, nor yet is persuaded of the contrary. Those in which the former decision is confessed to be erroneous. We are not in either the first or second category, because the Court must hear us and consider our arguments before it can know whether it is possible to make the reason of the rule, or its contradiction to reason, apparent ; and before it can de- termine whether the reasons for and against, still leave their minds in equipoise. And a hearing is all that we ask. We stand in the third class, which is, necessarily, the most lim- ited and restricted. There it is of no use to hear. It seems difficult to understand how this class of cases can exist at all, as, the Judge is, by his oath and his conscience, most solemnly bound to declare the law. In every such instance there must 11 be an assumption of legislative power, but still Judges do leg- islate — " 1st. Laws are made directly by statute, in the properly legislative way. 2d. Laws are made judicially, in the way of improper legislation. Of this latter class, admitted and unexceptionable instances are : 1. Laws fashioned by judicial decisions upon existing customs; jus morihus constitutum. 1. Laws founded upon authority of learned writers and ancient sages of the law ; jus prudentilv^ compositum. 3. Laws drawn from natural law, founded on the law of God. 4. Laws of foreign original, fashioned on positive international law ; the jus receptum. The positive law, made judicially, is equally binding with the law made in the properly legislative manner." Dwarris on Statutes, p. 707. The Court will say whether the decision in Cohas v. Eaisin, that the pueblo of San Francisco was a municipal corporation, and owned an indefinite tract of land, can be brought in as any one, and which, of these admitted unexceptionable cases of judicial legislation. If it cannot, I am justified in saying that before it can claim to rank as an established precedent, it needs something more to support it, than even the most liberal concession of legislative power to the judiciary, to be found in any work of acknowledged authority. In every case in which former decisions acquire the force of laws, it is an essential condition that the decision shall have been rendered upon argument heard. " If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correct- ness." 1 Kent, p. 528. Thus, to every precedent, " solemn argument " at the bar is as necessary as " mature deliberation " on the bench. But we have seen that the decision in Cohas v. Easin, that San Fran- cisco was a pueblo, or municipal corporation, and that that corporation owned land, was rendered without argument on these points — that they were not made by the appellant, who deemed them unnecessary to his case, and that the respondent deemed that they were no longer open for argument. It does 12 not appear that the CoUrt, under these circumstances, called" for an argument. The point decided in Cohas v. Easin, was that grants by- American Alcaldes, in San Francisco, were valid. All else i^ the reasoning of Justice Heydenfeldt, in support of his de- cision. " The counsel for the defendant in error, urge, in opposition to this rule of construction, some dicta of the Court, in the case of Marbury v. Madison. It is a maxim not to be disregarded, that general expres- sions, in every opinion, are to be taken in connection with the case in which these expressions are used ; if they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit where the very point is pre- sented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom investigated," etc. Ch. J. Marshall in Cohens v. State Ya., 6 Wheaton, 899-i02. " There are expressions * * * in that case which seem to bear on the present ; but the expressions of every Judge must be taken with reference to the case on which he decides^ btherwise the law will get into extreme confusion. That is what we are to look to in all cases. The manner in which h6 is arguing is not the thing, it is the principle he is deciding." Ch. J. Best, in Eichardson v. Mellish, 2d Bingham, 248. And Courts everywhere continually hold the same lau' guage. The point to be decided in this case is not the validity of grants by American Alcaldes, but of a title acquired under an execution against the city. It is not embraced within that de- cision, but Welch V. Sullivan tells us that it is forever con- cluded by Justice Heydenfeldt's manner of arguing in Cohas v, Eaisin. We contend that his general expressions must go no further than the point which was before him, and that it is no just application of stare decisis, that would cut us off, even if his 13 decision is not to be regarded as tlie greatest of errors, from pointing the Court to the fact apparent on its face, that our case is that which he was arguing, and not that which he was de- ciding. It is also a rule, when several Judges constitute a court, and all concur in a decision, but one delivers the opinion — that the concurrence extends no further than the point decided, and cannot be presumed to take in also the reasons set forth in the opinion. The two associates certainly concurred in upholding the grants which the American Alcaldes made, but their judg- ments may have been founded upon very different reasons. They might have disbelieved altogether the fact alleged by Justice Hydenfeldt, that San Francisco was, before the conquest, a pueblo, or municipal corporation, and, also, have repudiated the legal doctrine, that, if a municipal corporation, it was ne- cessarily the owner of lands, and yet have held that American Alcaldes were authorized to go on granting lots, as their Mexi- can predecessors had done in virtue of their representation of the Mexican nation. Admit that such a position is not sound law, but it is also admitted, for the purposes of this argument, that Justice Heydenfeldt's positions, on which we are seek- ing to be heard, are not sound law, and there is no more reason, intrinsically, why that decision should be made to rest on one foot more than the other when both are equally lame ; whilst, extrinsically, there is the greatest reason, so to direct a choice, as to prevent the building of consequence upon conse- quence, and most to restrict the breed of errors. • If the Court is constrained to make a void Alcalde grant good, let it do so without making a void title under execution, good also. Could we now be heard on the rulings in Cohas v. Eaisin, we might, and I may assume, would, convince the Court that if sustain that case it must, then that it should do so on the most limited possible fallacy, and not among fallacies, select those of Justice Heydenfeldt, which would make that decision conclusive upon us, under the maxim of stare decisis. We might — we would — show this Court, that Justice Hey- denfeldt's fallacies, will enable a half dozen persons, who have purchased for a song under these executions, to turn ten thou- 14 sand citizens out of their homes, and strip them of all their property, whilst any other fallacies will furnish as valid a prop to Cohas V. Eaisin, and answer just as well to sustain Ameri- can Alcalde grants. See Map of the City ; (Peter Smith.) In Yates v. The People, 6 Johns. 495, the Court of Errors decided, that in a certain case, the Chancellor of New York had not the power to punish, by a recommitment, for contempt. Clinton, Senator, delivered an elaborate opinion, in which a majority of the Court silently concurred. In Yates v. Lansing, 9 Johns. 414, the same questions came up before that Court in another proceeding, and it distinctly and seriatim overruled every position of the former case. Piatt, Senator, delivered the opinion, and the majority again silently concurred. He said — " In the case of J. V. N. Yates, at the last session, only one member, (Mr. Clinton,) gave a written opinion, or assigned rea- sons for reversing the judgment of the Supreme Court. A majority of the members voted for reversing that judgment ; but whether upon the grounds taken, and the reasons assigned by Mr. Clinton, it is impossible to know. It is certain that a majority agreed in the result ; but there is no certainty that any two of that majority grounded their opinions on any one of the various points that were discussed, and relied on by Mr. Clinton." It is true, that in making these observations, the Senator had in view the peculiar constitution of that Court, but they have their operation in respect to every Court, and are in^ deed but another expression for the rule that the point decided, and not the manner of arguing it, is the thing to be looked at. The controversy upon the commitment of Mr. Yates, by Chan- cellor Lansing, was protracted and hot, and brought to the dis- cussion of the questions involved, the learning and ability of the most eminent men, including Kent and Thompson. In Yates V. Lansing, the doctrine of stare decisis, was greatly in- sisted on. Eedman & Van Buren : " This question has been settled in the negative by this Court in the case of the People v. Yates. That decision must be final and conlusive. It is now the fixed and unalterable law of the land." * * * Henry & Yan Yechten, contra : " It is to be regretted that 15 the counsel for the plaintiff, should consider these points as al- ready adjudged by this Court. We deem it our duty, how- ever, -with great respect to examine them. It is not denied that the decisions of this Court are immuta- ble, as it regards inferior courts. But unless this Court as- sumes to itself the attributes of perfection, and infalihility, it -will not consider itself bound by its own opinions, if, on further ex- amination, they should be thought erroneous. The greatest' and most illustrious Judges in England, have changed their opinions, and thereby changed the law. But we claim a right to examine these points ; for a party is entitled to he heard before he is judged, and the defendant has not been heard on them." [But in this case we are still more unfortunate, as neither we, nor any body else, was heard on those questions which Justice Heydenfeldt ruled in Cohas v. Raisin.J T. A. Emmet : " Bat we have supposed that this and the other points which could arise, except the question of judicial invio- lability, were definitely settled by this Court in the case of the People V. Yates. * * But this Court of dernier resort has been called on to do what no such Court ever did, to overturn its former decisions. Inferior Courts, it is true, have changed, and may change their decisions. But if the decisions of the Court of last resort are not to be permanent and unalterable, then there is no such thing as settled law. Is it to be changed because it is recent and yet in the gristle ? Must it be ossified by time before it can be fixed ? The decisions of this Court are and must be the law, until altered by the Legislature. In England, in consequence of the decisions of their courts, the Act of 10 and 11 Wm. Ill, ch. 16, was passed, to enable pos- thumous children to take in remainder in the same manner as if they had been born in their father's lifetime. 3 Bl. Com. 169 and note by Christian. It is absurd, then, to cite all the authorities and cases on points which this Court has already settled. Why is this Court called upon to change its decis- ions and to subvert the maxim of stare decisis ? Is everything to be set afloat, and the character and consequence of the Court to be lost ? If it can thus change its opinions, the Court itself ought to be changed. If its decisions are wrong, let 16 ttem be set right by the Legislature. But if the Court itself can alter its decisions, it is in vain to study the law. I pro- test, therefore, against going into an examination of the points already decided by this Court, though I may be obliged inci- dentally to mention some of them." It is impossible that the argument on that side could be more distinctly put or vehemently pressed. But the majority of the Covirt, and their's was the side of Kent & Thompson in the controversy, were not persuaded. Senator Piatt : " Before I proceed to examine these quesr tions, it is proper to notice a preliminary objection insisted on by the counsel for Mr. Yates. They contend that the door to these inquiries is now shut, by the decision of this Court at its last session in the case of John V. N. Yates and the People. I cannot admit the doctrine of immutability in the decisions of this Court, to the unqualified extent claimed by the plain- tiff's counsel. The decisions of Courts are not the law ; they are only evi- dence of the law. And this evidence is stronger or weaker, according to the number and uniformity of adjudications, the unanimity or dissension of the Judges, the solidity of the rea- sons on which the decisions are founded, and the perspicuity and precision with which those reasons are expressed. The weight and authority of judicial decisions depend also on the charac- ter and temper of the times in which they are pronounced. An adjudication at a moment when turbulant passions or revo- lutionary frenzies prevail, deserves much less respect than if it were made at a season propitious to impartial inquiry and calm deliberation. " lb. Decisions of Courts are not the law — they (are only the evidence of the law ; and in Cohas v. Eaisin, there are none of those attendant circumstances which give weight to that spe- cies of evidence — it stands alone, it has no predecessor or legitimate successor ; as to the unanimity of Judges, solidity of reasons, and perspicuity and precision, it is sufficient to say that it was never argued at the bar ; as to the character and temper of the times, turbulence of passions and revolutionary frenzies, we find, in the language of Ch. J. Murray, in Welch 11 V. Sullivan, that a former opinion of this Court, holding the contrary doctrine, had " created consternation and alarm, * * unsettled the laws of property, despoiled men of their posses- sions, and introduced into a peaceful community disgraceful scenes of riot and bloodshed, calling down upon its authors the anathemas of the whole people. The decision of Cohas v. Eaisin, was an olive branch of peace." Whether with or without just cause, and provocation existing, these are the tur- bulent passions and revolutionary frenzies which are not favor- able to impartial inquiry and calm deliberation, and which strip an adjudication of its title to respect. The qualities of the olive branch, are not among those enumerated, as going to constitute a precedent. The state of feeling in the midst of which we are told the decision in Cohas v. Eaisin was rendered does not at all exist now, and we assume that although such doctrines were necessary to make peace then, we could, if we could be heard, show that a very different decision is neces- sary now in order to do justice and vindicate the law. As a corollary from the proposition, that decisions are not the law, but the evidence of the law — it follows that there are some things in the law so well known that the evidence of no decision, or number of decisions, can, at this day, prevail to the contrary. Thus : " The doctrine of the law then is this : that precedents and rules must be followed, unless flatly absurd or unjust — for, though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples : It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the King, or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judi- cial decisions — and, therefore, can never be departed from by any modern Judge, without a breach of his oath and the law. For herein there is nothing repugnant to natural justice — though the artificial reason of it drawn from the feudal law may not be quite obvious to everybody. And, therefore, though a modem Judge, on account of a supposed hardship 3 18 on the half brother, might wish it had beeu otherwise settled, yet it is not in his power to alter it. But if any Court were now to determine, that an elder brother of the half blood might enter upon and seize any lands that were purchased by hia younger brother, no subsequent Judges would scruple to de- clare that such prior determination was unjust, was unreason- able, and, therefore, was not law. So that the law, and the opinion of the Judge, are not always convertible terms, or one and the same thing ; since it sometimes may happen that the Judge may mistake the law." 1 Bl. Com. 70, 71- As parties supplicating a hearing and impartial judgment, and therefore having every presumption in our favor, we as- sume that ours is a case in which the Judge did mistake the law; that the opinion of Justice Heydenfeldt in Cohas v. Kai- sin and the law are not convertible terms ; that that prior de- termination was flatly absurd and unjust ; that it was against positive law, fixed and established custom, and the uniform current of decisions, (under Mexico and Spain,) to the full as much as the case put by Blackstone ; and that an equal obli- gation rests upon the subsequent Judges now constituting this Court, to declare Cohas v. Eaisin to be unjust, unreasonable, and not law. Welch V. Sullivan in still maintaining the setting up of Co- has V. Eaisin, and the upturning of Woodworth v. Fulton, is, as we have seen, expressly put upon the ground of a hard case. " Hard cases, it has repeatedly been said, are apt to make hard law, and misera est servitus whijus est vagum aut incffrtum obedience to law, becomes a hardship when that law is uncertain or doubtful; which maxim applies with peculiar force to questions respecting real property; as for instance to family settlements, by which provision is made for iinborn generations ; and if in consequence of new lights occurring to new Judges, all that which was supposed to be law by the wis- dom of our ancestors, were to be swept away at a time when the particular limitations are to take effect, mischievous indeed would be the consequences to the public!" If we could be heard, we should endeavor to persuade the judgment of this Court, that those ancient laws which regulate the family settlement of the nation, and make provision for 19 %he imbom generations of the State, were violated in Cohas v. Eaisin, and tliat tlie opinion of Justice Heydenfeldt in tliat ease, was merely one of those new lights occurring to a new Judge, and not that wisdom of our ancestors which we are en- joined to reverance, maintain and abide by. And this too for the present we assume. In "Welch v. Sullivan, Chief Justice Murray and Justice Terry both speak to us of policy. That is a 'thing at best of which meni entertain very diverse opinions. It has a doublb operation, namely, as an argument to support the maxim of stare decisis, and as an argument for the making of a new rule. As to the former, it is of but little consequence ; for, if decisions do satisfactorily evidence a rule, we have seen that policy will not justify us in changing it, and as to the latter, it is dangerous to meddle with. In the present instance, the time which has elapsed since the decision of Cohas v. Eaisin, is so short when set up against the ages of the law of Mexico and Spain regulat- ing pueblos, their establishment, their rights in the soil, and the rights of the nation in the soil, that it dwindles to a moment, and the only policy left to us to consider is that which affects the making of a new rule. In a case which I have already cited, I find the following strong expressions from great authority, on this matter of policy in Judges : " We have heard much of this being a contravention of pub- lic policy, and that on that ground it," (the contract in ques- tion,) " could not be supported. I am not much disposed to yield to arguments of public policy ; I think the Courts of "Westminster Hall, (speaking with deference as an humble in- dividual like myself ought to speak of the judgment of those who have gone before me,) have gone much further than they were warranted in going in questions of policy ; they have taken on themselves sometimes to decide doubtful questions of policy ; and they are always in danger of so doing, because courts of law look only at the particular case, and have not the means of bringing before them all those considerations which ought to enter into the judgment of those who decide on ques- -tions of policy. * * * * Let that doubtful question of policy be settled by that high tribunal, namely, the Legislature, 20 which has the means of bringing before it all the considerations that bear on the question, and can settle it on its true and broad principles." Best, 0. J., ia Richardson v. Hellish, 2d Bingh. p. 229. "If it be illegal, it must be illegal, either on the ground that it is against the public policy, or against some particular law, I for one protest, as my lord has done, against arguing too strongly upon public policy; it is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law. It is never argued at all 'but when other points fail." Burrough, J. (in same case.) The only question now is, can this Court return to the sound law from which it was borne by this unruly horse in Cohas V. Raisin. The Legislature is the tribunal to settle these questions of policy. Let us state it jn the present case. In Welch V. Sullivan, Murray, C. J., and Terry, J., say we must maintain Cohas v. Raisin if it is wrong. If it is wrong, it ia wrong in this, that it gives to the city of San Francisco the land which belonged to the United States. This is the effect of the admission of those Judges. If in fact the land belonged, as admitted, to the United States, then Congress is the Legis- lature which must determine the manner in which it shall be disposed of. The Constitution of the United States, declares that ; and under the Constitution of the United States does the admission place the subject matter in controversy. Can it be supposed that any policy can give the Supreme Court of California, the right to dispose of the land acknowl- edged to belong to the United States ? If any mind is capable of entertaining that proposition, it must limit it to some provisional and temporary disposition, founded upon uncontrollable necessity such as Chief Justice Murray paints in such strong colors in Welch v. Sullivan. It is impossible that any man can mean to say that the land was public land, but that the decision in Cohas v. Raisin has forever cut it out from the body of the public domain. Con- gress has acted upon the subject. The 8th section of the " Act to provide for the survey of the public lands in Californ- ia, the granting of preemption rights therein, and for other 21 purposes— passed Marcli 3d, 1853," adopts tlie " Act for the relief of tlie citizens of towns upon the lands of the United States, under certain circumstances — passed May 23d, 1844," extends its provisions and makes them applicable to the city of San Francisco as well as to other towns in California. Such was indeed the state of the legislation by Congress at the very time that Cohas v. Eaisin was decided, but now that legislation has actually been carried fully into effect. (Stats, of Cal. for 1858, p. 52.) The arrangements which Congress has made, correspond as nearly with those which the Supreme Court made in Cohas v. Eaisin, as Congress thought proper to make them. In point of fact, Alcalde grants are as effectually pro- tected under the law of the land, as under Justice Heyden- feldt's opinion in Cohas v. Eaisin. And if they were not, yet upon the admission in this argument, that Cohas v. Eaisin is wrong in law, it must also now remain /wtjciSms officio, in point of policy. It follows that either Cohas v. Eaisin must be sustained on the ground that it is sound law, or it must be abandoned. Stare decisis, will not be carried to the extent of repealing the 3d section of the 4th article of the Constitution of the United States. If Cohas v. Eaisin is to be sustained on its merits, it will not be until this Court have heard solemn argument upon it, and given mature deliberation to all the questions of the law which it involves. This is all that we seek. Finally, Cohas v. Eaisin rests at last upon the fact that be- fore the conquest, San Francisco was a pueblo or municipal corporation. Stare decisis, applies to questions of law. This is no more a question of law, than the revolution of the earth on its axis on which Galileo was overruled, was a question of religion, VIII. In statutes, decisions of Courts no longer supplying the place of a text, the operation of the maxim of stare decisis, is greatly more circumscribed than at common law. But two questions can arise on a statute, constitutionally enacted : the meaning of the words, and whether the subject matter in ques- tion is one of those which come within their meaning. To these two are reduceable the multitude of useful directions for 22 exploring the meaning of statutes, witli whicli the books abound. Dwarris on Statutes, p. 696. When these questions have been resolved by decisions of courts of last resort, these become precedents, and bind as precedents at the common la-w ; or even more strictly, as such decisions may be taken as supplying additional words to the statute. The operation of stare decicis cannot be extended beyond these proper limits of constructioji. When a case occurs which was not foreseen by the Legisla- ture in the United States or England, the Judge can do no more than to declare it cosms omissus ; or where the intention if entertained is not expressed, to say of the Legislature, quod voluit non dixit. "As to deciding contrary to the plain words of an Act of Parliament — as to holding that the Legislature did not mean what it has unequivocally expressed — it may be observed that if with decided cases the maxim of law be (as it incontroverti- bly is) stare decisis, if the Courts feel themselves bound by the positive authority of a solemn determination of the same ques- tion by former Judges ; a fortiori, ought they to be concluded by the more positive authority of an Act of Parliament ;" ib. p. 704. IX. The law applicable to the case of Cohas v. Eaisin is exclusively statute law. The body of the Mexican and Span- ish laws is a collection of statutes. And therefore stare decisis is as to them to be taken in the narrower, not the wider ap- plication of that maxim. The laws of Mexico are to be found in seven written codes. 1. National laws posterior to the Independence. 2. Spanish laws, decreed as well under the representative system as the absolute, including the special ordinances relating to certain subjects, with the Cedulas and Extravagantes com- municated to America, the Eecopilacions of the Indies and Cas- tile — the latest in date of these laws having precedence. 8. The Ordenamiento Eeal. 4. The Ordenamiento of Alcala. 5. The Fuero Eeal. 6. The Fuero Jusgo, 7. The Code of the Seven Partidas. 23 None of these codes are obsolete, and they are to be cited as authority in the order of this enumeration. 1 Sala Mejicano, pp. 158, 159. By the side of these statutes have grown up-— custom which springs from use--precedents which spring from interpretation. " Custom is, practice very much used and received which has acquired the force of law ; or the unwritten law which has been introduced by use. Custom may be general or special ; that is general which is observed in all the kingdom; and special which is observed only in some district. Custom must not be confounded with use ; use is nothing but the fact, and custom is a law ; there may be use without custom, and there cannot be a custom without use, or unless it has preceded ; use consists in the repetition of acts, and custom springs from this repeti- tion ; use then produces custom, which consequently is the effect of use. That, use should produce custom, it is necessary that it shall be beneficial and not prejudicial to the common good nor con- trary to natural law ; that it should be established publicly and not by clandestine acts ; that it should be consented to or not contradicted by the sovereign; that it should have been ob- served constantly by the whole people or the greater part, dur- ing the space of ten or twenty years ; and that there should have been two judgments of uniform purport rendered in accordance with it, or that judgments shall have been given against de- mands brought in contravention of its observance. (LI 1, 2, 3, 4 and 5, Tit. 2, Part 1.) Use can be proven by public writings, or by the testimony of the most enlightened and oldest persons in the country, or by two uniform judgments rendered upon the subject matter treated of. The custom which results from such use is a legitimate cus- tom, has the force of law, and consequently produces the like effects, not only when there is no law to the contrary, but also to repeal and destroy the former law which was opposed to it, and to interpret a doubtful law which shall be observed in ac- cordance with the sense which custom gave it. (L. 6, Tit. 2, Part 1.) Hence comes the saying that there is custom beyond the law, contrary to law, and according to law. Custom be- yond the law is that which decides those things which have not 24 been provided for by tlie law Diuturna cdnsuetudo pro jure et hge in his qum non ex scripta descendunt dbservari solet. Custom, contrary to the law, is that wMch never submitted to tbe written law ; or wMch after having acknowledged it, repealed or abro- gated it insensibly by acts in contravention of it. Bectissime etiam illud receptum est, ut leges non solo suffragio legislaioris, sel etiam tacito consensu omnium per desuetudinem dbrogentur. Cus- tom according to the law, is that which supposing a law still in existence, puts it in observance and execution, or if it is ambiguous interprets it, and fixes its sense. Morihus utentium ipse leges confirmantur ; optima est legum interpres consuetudo. A custom, though good and legitimate, may cease and be ex- tinguished by two causes. 1. By another contrary custom which may be afterwards introduced in due form. 2. By a subsequent written law which destroys it." L. 6, Tit. 2, Part 1, Bscriche verbo Costumbre. Interpretation is the fruit of the discretion of Judges, which in the Spanish law is defined as that power which a Judge pos- sesses of deciding cases omitted or not clearly contained in the law quae a lege non sunt determinatce, says Gregorio Lopez, (Gloss. 7 of Law 7, Tit. 9, Part 2), judicis discretioni committun- tur. The things which are not determined by the law are com- mitted to the discretion of the Judge. The imperfection of the best laws beingsuch, that the highest perfection which can be pre- dicated of them, consists only in leaving little to the discretion of the Judge, rules of interpretation were introduced to enlighten, guide and restrain his discretion. These rules in Spain are sub- stantially the same in [the greater part with the English and American rules for the construction of statutes. The principal differences are that the Judge is authorized and even required to decide where there is an omission in the law, or where the law does not in proper words express the intention of the Legislature. Escriche verbo Arbitrio de Juez : ch. xxi second part of Dwar- ris on Statutes, Boundaries of Legislation, and Judicial Inter- pretation. The PRECEDENTS which result from interpretation are some- times really of the rank of customs, and should be so classed; and at other times are, as they are denominated, but examples. 25 " Examphs or Precedents.— "We do not speak here of those examples or precedents -which by their frequent use form a cus- tomary jurisprudence, which supported in the unanimous assent ' of the tribunals and the jurisconsults raises itself by the side of the laws to complete them and supply their vacancies. This jurisprudence, if it has in the end come to be invested with the requisites of a legitimate custom, has the force of law ; and no Judge is authorized to withhold from bowing to it, and taking it as the rule of his decisions as will be seen in the article — Chs- tumire. Here are only treated of, those examples or prece- dents which have occurred once or twice and as yet have not acquired the force of tacit or customary law. The Judge then in default of other better light to guide him, may make use of those examples, and adopt them if they are in point, not blindly, but finding them well founded in reason — for examples teach, but do not command; and he should rather judge according to reason than examples. JExerrvph, docent, non juhent ; eoaempla in consil- ium adhibentur, non utique juieni aut imperant; Sationihus non exemplis est judicandum. Examples in every instance ought to be taken from the times in which order reigned, moderation and justice, and not from the times of despotism, faction or anarchy. So observes Ba- con. Mcempla, says he in his 22d aphorism, a temporibus bonis et moderatis petenda sunt; non tyrannicis, aut factiosis, aut disso- lutis. Hujusmodi, exempla temporis partus spurii sunt, et maj^jts nocent, quam docent. If we seek to learn examples exactly, we must not look for them in histories but in authentic documents, since the best of historians are not accustomed to apply themselves sufficiently in the investigation of laws and judicial acts. Sometimes contradictory examples are met with, examples which perhaps owe their existence to force, intrigue or hazard, examples which rest only on the interests of the moment, or on circumstances which are special and transitory. Therefore it is necessary to take them only from good sources, and never to apply them but with caution and discernment, having in view that only to the text of the law and to legitimate custom, is due al- ways respect and obedience." Escriche Arbitrio de Juez, p. 204. In respect of the differences which I have noted, between the 26 American and English rules for construction of statutes, and the Spanish rules for the interpretation of laws, the Mexi- can la-w agrees with our own and departs from its Spanish origi- nal. Such I understand to be the meaning of the 44th article of the 3d constitutional law of Mexico, under the Constitution of 1836, which I presume still remains in that country, the law in this particular, viz : " It belongs exclusively to the General Congress, 1st, To dictate the laws by which the public admin- istration must be regulated in all and each one of its branches, to repeal them, interpret them, and excuse from their observ- ance." The law of Mexico being made up of these parts, and it be- ing entirely obvious that the law of the case of Cohas v. Eaisin belongs neither to any customs which have grown up from a ten or twenty years' use, nor to either class of precedents, it falls necessarily within the Ux scripta, the HispaSo-Mexican-Statute law. Referring to the cases of Cohas v. Raisin and Welch v. Sullivan, we see that Justice Heydenfeldt and Chief Justice Murray have so treated it, and that both rest their opinions on various written laws which they cite by book and page. And the authorities cited in the brief of Mr. Bennett in the case of Welch V. Sullivan on page 182, sufficiently show that the con- version of a collection of people into a municipal corporation is peculiarly the subject of the written law — a thing done and regulated by statute. It follows, then, from the admission, that Cohas v. Raisin is wrong, that it is wrong in this, that it is in contradiction to the words of the text of the statute. We are authorized to assume that if the Court will permit us to take up the venerable body of the statutes which are the law for this Court still, on all questions dating back like the present question to the time of the Mexican dominion, we will, by the reading of the words of the text, show that the law is on every point the reverse of the conclusions of Justice Heydenfeldt in Cohas v. Raisin. That the maxim of stare decisis is in this case to be taken not as it operates in the common law, but as in the construction of Enghsh and American statutes, is not only apparent from the nature of the Mexican laws, but has been explicitly declared by 27 Judges of the greatest eminence under a system of laws con- stituted in a manner entirely analagousi li * * * On this view of the subject I need not examine the difference between the authority to which decisions under our law are entitled, and those of the Courts of England ; many of the latter, as was truly stated, turn on the common law, many of them however grew out of the expressions used in their statutes and are given in expounding them. Cases of the latter description are delivered under circumstances similar to those in which this Court pronounces here, and have in that country the same weight which I have just stated the decisions of this tribunal enjoy in this." Porter, J., Martin and Matthews concurring, in Breedlove v. Turner, 1 Martin, (0. S.) pp. 565, 556. Granted that Cohas v. Eaisin is against the words of the text of the written law, shall it still be maintained under the doctrine of stare decisis ? That is the question. I can but repeat the an- swer already given from Dwarris : " As to deciding contrary to the plain words of an Act of Parliament — as to holding that the Legislature did not mean what it has unequivocally expressed — it may be observed that if with decided cases, the maxim of law be (as it incontrovertibly is) stare decisis, if the Courts feel themselves bound by the positive authority of a solemn deter- mination of the same question by former judges, a fortiori, ought they to be concluded, by the authority of an Act of Par- liament." Here the Act of Parliament is the written law of Mexico. X. For occupying so much of the time of the Court in dis- cussing whether a decision is conclusive, when it is conceded that its allegations are contrary to the fact, and its conclusions con- trary to the plain letter of the written law — when it patents an indefinite tract of the public lands to a municipal corporation, and in so doing usurps the power which the Constitution of the United States has conferred upon Congress to dispose of the public lands of the United States, and if still persisted in will defeat the disposition which Congress has actually made under this power — I feel that I owe the Court an apology. 88 I leave to others to present the arguments which may be deemed proper to be addressed to the Court when Cohas v. Eaisin shall have been set aside. I ask only that the Court will determine the present case on its merits as res integra, and whatever its judgment may be, that it may be wholly un- influenced by the maxim of stare decisis. EDMU]!^-D EANDOLPH, of Counsel for Appellants.