The main question presented by the contention of the parties is as to the power of the territorial deputation of New Mexico, in the spring of 1825, to make grants of public lands situated within the boundaries of that territory. We therefore pretermit an examination of the controverted issues as to possession, in order to first address ourselves to the fundamental legal question upon which the decision of the cause substantially depends. To understand the issue to be considered, it is necessary to recall a few facts connected with the overthrow of the dominion of Spain in Mexico, and the establishment in the latter country of an independent government.
After the successful revolution by which Mexico was severed from the control of the crw n of Spain, and following the deposition of the Emperor Iturbide, a representative body was assembled, which was known as the constituent congress of Mexico, and this body adopted, on January 31, 1824, what is termed the 'Constitutive Act.' In that instrument New Mexico was recognized as a state of the federation, and in article 7 it was provided that the territories of the federation should be directly subject to the supreme power, which, in article 9, was divided into legislative, executive, and judicial. 1 White, New Rec. p. 375; Reynolds' Spanish & Mexican Laws, p. 33.
Under the provisions of the constitutive act what has been styled the 'General Constituent Congress, was elected; and on July 6, 1824, it decreed that 'the province of New Mexico remains a territory of the federation.' Reynolds, p. 117. Subsequently, on August 18, 1824, the same congress adopted a general colonization law, which, in articles 11 and 16, vested the supreme executive power with sole authority to regulate and control the disposition of public lands in the territories. On October 24, 1824, the general constituent congress adopted a permanent constitution, which, in article 5, enumerated, as one of the parts of the federation, the 'territory of Santa F e, of New Mexico.' Reynolds, p. 124.
It is manifest that the necessary effect of the decree of July 6, 1824, the colonization law of 1824, and of the constitution of October 24, 1824, was to deprive the officials of a territory of the power to dispose of the public lands, even though it be arguendo conceded that such power had theretofore been possessed by the officials who exercised authority within the area which was made a territory by the constitution.
But it is earnestly and elaborately argued that as, by the constitutive act, New Mexico was recognized as a state of the federation, the congress could not subsequently constitutionally reduce New Mexico to the rank of a mere territory, and that this court, in disposing of this case, must therefore disregard the Mexican constitution, and hold that, as a state, New Mexico succeeded to the sovereignty and dominion of all the lands within its borders which formerly belonged to the king or crown of Spain; and, further, that we must, in substance, assume the acts of the officials who made the grant in question to have been those of state officials. The position thus taken, however, is so utterly in conflict with the facts, and is so inconsistent with the case made by the petition, as hardly to be entitled to serious notice.