EXHIBIT No 2.

TREASURY DEPARTMENT,

Second Comptroller's Office, January 30, 1855.

SIR: I return herewith all the papers connected with the claim of M. G. Vallejo for the occupation and use of his property by the troops of the United States from July, 1846, to August, 1853, amounting to $20,600.

It appears from the evidence, that this property was taken without the consent of the owner, and used for government purposes under the idea that it belonged to the public; but I agree with you in opinion that the claim cannot be considered and paid as rent of quarters. Forcible entry and possession is alleged, and no executive officer is authorized to make compensation for the tresspas and conversion. Such claims are not estimated for, and are not within the scope of any appropriation acts. So far as the government is concerned, Congress alone can afford relief for the injury the claimant is said to have sustained.

The premises in question are claimed by virtue of a Mexican grant, dated 5th July, 1835. (Page 53, 54.)

The rights of property of Mexicans were secured by the 8th and 9th articles of the treaty of Guadalupe Hidalgo of February 2, 1848. To carry into effect the provisions of this treaty, Congress passed the act 3d March, 1851, (9 vol. Stats, 631,) by which a board of commissioners was organized to "ascertain and settle private land claims in the State of California."

The 8th section of this act provides the mode of proceeding. And upon the evidence taken by the board they were to decide "upon the validity of said claims."

The 9th section provides for an appeal to the district court, and the 10th section for a further appeal to the Supreme Court of the United States.

The 12th section provides that "final decrees by said commissioners, or by the district or Supreme courts, "shall be conclusive between the United States and said claimants.'

By the 12th section act 31st August, 1852, (9 Stat., 99,) on failure

of the Attorney General to file an appeal, "the appeal shall be regarded as dismissed."

On the 30th March, 1853, the claim of Vallejo was duly presented to the board of commissioners, and on the 17th January, 1854, on the proofs and allegations taken in the cause, the claim was decreed to be is valid," and the same was then "confirmed." (P. 9.)

On the 18th February, 1856, an appeal having been taken to the district court, it was ordered, adjudged, and decreed, that the final decision of the commissioners be, and the same is hereby, in all things affirmed. And it is hereby further decreed, &c., that the claim of the appellee, Mariano G. Vallejo, be confirmed." (Page 12.)

The transcript for an appeal having been sent up to the Attorney General, the appeal was by him ordered to be dismissed on the 24th December, 1856, (p. 14,) under authority of the act of 18th August, 1856. (11 Stat., p. 102.)

The patent is delayed owing to the absence in the land office of a subdivision plat of the township. (See letter of Commissioner, p. 13.)

In the year 1854 the claimant presented his petition to Congress. It was referred to the Committee on Military Affairs; but on the letter of the Attorney General to the committee stating that an appeal was then pending, the committee declined to act on the case, and, under a resolution, it was referred to this court. (Page 11.)

These proceedings show that the title to the premises are conclusively established between the government of the United States and the claimant.

These acts do not confer a title, but constitute a governmental acknowledgment that the title derived from Mexico was valid in its inception, and therefore relates back to the date of the grant.

These evidence taken in this case to show the invalidity of the title, is therefore worse than idle. The government cannot impeach the grant in a collateral proceeding. If a fraud has been committed, the title could only be set aside by a direct proceeding which puts the fraud distinctly in issue.

Where a special jurisdiction has been conferred, this court has frequently declared that they could not inquire into the validity of its judgments. The opposite conclusion would be a clear usurpation of authority.

This court can no more inquire into the allegation of fraud here attempted to be shown than into the want of authority in the grantor, the want of capacity in the grantee, the non-compliance with the conditions of the grant, or any other matter which entered into the validity" of the grant.

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Upon this question of separating private property from the public domain, the government has selected its own tribunal to decide the controversy, and has in words declared that the final decree of that tribunal shall be conclusive between it and the claimant.

Failing to invalidate the title, the effort is made to show that the government ought not to pay for the use and occupation of the premises, upon some idea that Vallejo agreed that they should have them free of charge.

This is based on the deposition of Hooker, (pp. 73, 75,) who states that in June, 1849, and again" a year or two afterwards," he heard Vallejo, in conversation with General Persifer Smith, say that "the government was welcome to the use of the barracks for the troops. This conversation (he says) was so long ago that I can't remember the precise words; the idea is what I have stated."

Rain also testifies to a conversation in 1853, in which Vallejo said that if the government would "keep a company there, they were welcome to the use of the barracks; which was the amount of the conversation I heard every time." (Page 79.)

There is no pretence that there was ever any contract or agreement with any officer of the United States that they were to occupy the premises free of rent.

The premises were taken possession of by Lieut. Rivere, in July or August, 1846, in obedience to orders of Capt. Montgomery, and they continued to be occupied as a military post to 1853.

There is not a particle of proof from any officer in command that his occupation was in any wise connected with, or dependent on, an agreement that no rent was to be paid.

On the contrary, Major Allen, acting quartermaster under Generals Smith and Hitchcock, says, (p. 8:) "The question of ownership was not then settled, and I refused to rent in consequence." Again, at page 45, "a demand was made (for rent) by Captain Frisbie, as the agent of General Vallejo, verbally and in writing, in the year 1849. I refused to pay it, and have not paid it. The ground of my refusal was, that I did not recognise General Vallejo as the owner of the property.

If the occupation had at any time been induced by any such promise and agreement, some evidence thereof would have been furnished to the department.

The Quartermaster General states that the building was taken possession of as public property, and used as such during the period charged for, and no rent has been paid for the buildings. There has been no estimate and no appropriation made to cover the expenditure. "He is therefore of opinion that it is a claim for the special action of Congress." (Letter, July 30, 1855, p. 10.)

The Comptroller replies: "It appears from the evidence that this property was taken without the consent of the owner, and used for government purposes under the idea it belonged to the public." "Such claims are not estimated for, and are not within the scope of any appropriation acts. So far as the government is concerned, Congress can alone afford relief for the injury the claimant is said to have sustained." (Letter, January 30, 1855, p. 11.)

The remark of this court in Ericcson's case might be effectually invoked if this position was worthy an extended refutation. "The maxim of nemo præsumitur donare applies with great force to a case like the present, where the object of the bounty to be bestowed is a great and powerful government in possession of abundant means for all its legitimate purposes."

There is in truth but one question in the case, and that is, at what rate of compensation the claimant should be paid?

Quartermaster Snyder, Major Hardie, Quartermaster Folsom, and Major Allen-all officers of the United States, stationed at different periods-all certify that the amount charged for rent is correct.

It will be remembered that these certificates were given under official responsibility, for the purpose of having the account paid at the proper department.

In addition to this, Capt. Frisbie testifies that from 1848 to 1850 these buildings would have been. worth from $400 to $500 per month. (Page 23.)

Israel Brockman testifies, "that from the way other property rented, (from 1846 to 1853,) these premises would be worth from $300 to $500 per month. From that to $600 perhaps." (Page 30.)

A. C. McDonald testifies that, "for the year 1849, a fair rent for that building would be $500 per month; for the year 1850, $400 per month; for 1851, $150 per month; and for 1852, $75 per month. (Page 33.)

W. M. Boggs testifies, "I am acquainted with the buildings and appurtenances. I have known them ever since I arrived in November, 1846. At the time I arrived they were occupied by persons serving the United States in the war with Mexico. They continued to be occupied from time to time by soldiers or volunteers until the United States troops finally left the barracks," &c. "The premises were worth from $300 to $500 per month for the time they were occupied by the troops, from my knowledge of rents there." (Pages 36, 37.) Major Robt. Allen testifies, that on his former examination he had stated the value of the rent at $250 per month. "I judge this from the fact that I hired private buildings in Sanoma at the same time, the relative price, considering the value of the property, at a higher rate."

Cross-interrogatory by government. "Is all the knowledge you have in reference to the use or value of the rent of said barracks during the time you have spoken of, derived from the renting of other quarters and offices which you have mentioned ?”

Answer. "Not entirely; I knew the value of property in Sonoma at the time and the usual rate of rents; and in this connection, having, as before stated, made a comparison of the relative value of property, I came to the conclusion that the charge made by Gen. Vallejo, &c., was very reasonable, and below the current of rule of the town. I can state that with a positive emphasis. (P. 44.)

As to the value of the rent the witnesses on the part of the government, depose as follows:

Joseph Hooker. "I should think $100 per month would be a fair rent for the premises during the whole period." (P. 74.)

On cross-interrogatory, he answers: "The government rented another building of nearly the same extent for the use of General Smith and his staff, &c., &c., &c. The rent was $450 per month.' (P. 76.)

John Cameron. Question. What was the value, according to current rates at the time, of the rent of said barracks, &c., &c. That is, the average rent per month for the time they were occupied ?

Answer. I cannot tell, sir.

Question. For how much per month during said time could they have been rented to any other person in the condition in which they were when you went there?

Answer. I can't answer that question. The first eight months after gold was discovered, they could not have been rented at all, &c.

Question. For how much, in your opinion, could they have rented for during the balance of the period after the eight months?

Answer. Well, sir, I don't think they could have been rented for more than $25 to $50 per month for the whole five years.

L. W. Boggs deposes, that in the winter of 1846-'7, without the roof, the premises would have rented for $50 or $60 per month. (P. 93.)

If the improvements that had been made on the buildings with the exception of the roof had been of such a character as to suit merchants and mechanics, it might have rented for a great deal more. (P. 94.)

Question. For how much, according to current rents, could the barracks with the roofs, if not accepted by the United States troops, from the time the roof was put on until you left Sonoma, have been rented for? Answer. I say exactly what I said before, that in the dry season it might rent for $50 or $60, and in the wet season for more.

Cross-question. "If the government had been compelled to rent barracks or separate buildings for troops, store-houses, hospital, stables and storage for government property, at what rate could such accommodations have been procured?

Answer. It is impossible for me to say, for the reason that I do not believe sufficient quarters could have been obtained, &c.

Question. In view of the impossibility of obtaining such accommodation, would you regard $250 per month as an exorbitant rent? Answer. Under such a state of things, I would not, but under ordinary circumstances I would.

A full description of the premises is at pages 99, 100.

Fifty

Lieut. Rivere testifies, that he took possession in August, 1846, and left it in command of Lieut. Maury in November, 1846. dollars per month would have been a fair rent for the barracks at that period." (P. 104.) He describes the premises as a "large adobe building about 100 by 40 feet in size, of two stories, containing ample accommodation for 300 men, with a court yard in the rear for horses, enclosed by a wall." (P. 103.) "The barracks were in a good habitable condition." I ought to state, that these barracks were divided into four rooms in each story; of those in the upper story two had no floors, and were not habitable without floors being laid. I did not need these two rooms for my men. The lower story rooms had earth floors. (P. 104.)

The premises, it will be observed, were of such a character that if not desired by the United States for barracks, were easily convertible, by a small improvement, into suitable accommodations for merchants or mechanics, and would thus be rendered very valuable at a time when there were few or any buildings for rent, as is stated in the deposition of L. W. Boggs

It is for the court to reconcile these discrepancies in the valuation of the premises. If an average is made of them all, it will be seen that