More to Explore

Solution of the Private Land Claims in Areas Other than the Southwest

Bowden Book I Chapter Three

Solution of the Private Land Claims in Areas Other Than the Southwest

by J. J. Bowden

Old Northwest Territory

Old Southwest Territory

Louisiana Purchase

Florida Purchase

Texas


From time to time legislative branches of the federal government and Texas have had to deal with the con­firmation of private land claims issued by former sovereigns. In order to understand how this problem was met in the Southwest, it is important to review methods employed in other areas of the continental United States.

The Old Northwest and Old Southwest Territories

The first private land claims[1]which the United States had to consider were the grants issued to settlers by the British, French, and Spanish governments located in the Old Northwest and Old Southwest Territories which had been acquired by the United States from Great Britain under the Treaty of Paris of September 3, 1783.[2] This treaty ended the American claims to Revolution, secured the independence of the original thirteen states, and recognized their respective their western territories which covered the area west of the Alleghenies, east of the Mississippi and lying between Canada and the Floridas. It also provided that no person should suffer any loss or damage to either his per­son, liberty or property on account of the war. In relin­quishing its claim to its western territory to the United States of America, which had been formed under the Articles of Confederation,[3] Virginia stipulated that the French and other inhabitants, who professed themselves citizens of Virginia should have their possessions confirmed to them.[4] Georgia ceded its claim to land in the Old Southwest Terri­tory to the United States on April 24, 1802 for one and a half million dollars, to be paid from the proceeds of land sales in the area. The Articles of Agreement and cession[5] between the United States and Georgia also provided that fully executed Spanish and British grants to settlers before October 27, 1895 (the date of the Pinckney Treaty) [6] and claims which were derived under any actual surveyor settlement made in the Bourbon district under the Act of the Georgia Legislature dated February 7, 1785 would be recognized.

The Old Northwest Territory

Since the federal government, under the Articles of Confederation, had no taxing power, it commenced making sales of land from the public domain in order to secure the revenue necessary to discharge its debts.[7] Upon preparing for such sales, the federal Congress was forced to consider the claims of the French settlers in the Illinois country 8at Kaskaskia. On June 20, 1788 Congress approved a report [8] which recommended that the claims held by persons asserting American citizenship and who had settled upon the land covered thereby prior to 1783 should be satisfied and the head of each family should receive a 400-acre tract of land. These donations were to be made subject to the condition that they could not be alienated until the grantee had lived in the district for three years. The governor of the North­west Territory was to examine the titles and lay of the land at the expense of the claimants. In August, 1788, a similar resolution[9] was passed in favor of the settlers at Vincennes. Governor Arthur St. Clair went to Kaskaskia in February, 1790, to organize a civil government for that area while the Secretary of the territory, Winthrop Sargent, went to Vincennes to perform a similar function. In a report[10] to Congress dated July 31, 1790, Sargent called attention to the fact that the land records at Vincennes were very imperfect, that not one title in twenty was complete, and that oral testimony would have to be resorted to in order to ascertain the validity of the claims in that area. The grants made by the French or British commandants generally were written on scraps of paper. Although it was the custom to file the grants with the notary, that official kept no book or records and the loose papers were frequently lost or removed. He pointed out that the royal notary, who was at Vincennes between 1777 and 1788, had “run off with the public records in his possession.” He also stated that the remaining records had been falsified and there was “such gross fraud and forgery as to invalidate all evidence and information” which might otherwise have been acquired from them. Continuing, he noted that a civil court which had been established by Virginia at Vincennes had granted some 48,000 acres of land without any authorization. St. Clair, in a letter[11] dated February 10, 1791, reported that similar conditions prevailed at Kaskaskia. These reports clearly showed that further legislation was needed in order to solve the private land claims problem.

On March 3, 1791 the federal Congress passed an act[12] which gave the head of each family who had settled at either Vincennes or the Illinois country prior to 1783 four hundred acres of land to be surveyed at the place settled by the grantee. 'Persons who had moved from the territory were given five years to return and select their land. Lands actually improved and cultivated under a sup­posed grant by the court or a commandant were also con­firmed up to 400 acres. Persons who had not received a donation but were in the militia on August 1, 1790, and had performed services were entitled to receive 100 acres of land. A 150-acre tract at Vincennes, which had been pur­chased by a number of settlers from the Piankeshaw Indians, was also confirmed. The commons at Vincennes, Cahokia, and Prairie du Pont were granted to those towns for the use of their inhabitants. The act continued the power of the governor to make such confirmations and donations. However, Indian hostilities and a lack of surveyors seriously ham­pered progress. In 1798, Sargent, who was then Governor of the Mississippi Territory, reported[13] that he had approved claims for 22,572 acres at Vincennes and authorized dona­tions covering 103,800 acres.

Meanwhile, a serious problem had arisen as a result of Britain's failure to evacuate the military posts which it held south of the Great Lakes. However, it was solved when Britain, under the Jay Treaty,[14] agreed to withdraw her troops from the area by June 1, 1796. This action brought under United States authority a number of settlers in Michigan whose property rights were protected by that agreement. The Indian agent at Detroit, C. Jonett, was instructed to report[15] on private land claims in that area. In a report dated July 25, 1803, Jonett stated that there were frontier settlements, aside from Detroit, with 342 families located under all sorts of titles from perfected French grants to claims based merely upon occupation.

In an effort to settle the private land claims problem in the Northwest Territory, Congress passed an act[16] on March 26, 1804, which established land offices at Vin­cennes, Kaskaskia, and Detroit. The Register and Receiver at each of these land offices were to act as Commissioners for the investigation of all claims for land within their respective districts. They were to report the results of their investigations to Congress for its final actions. The act required all persons claiming land under legal French or British grants, or under any resolution of Congress, to deliver a notice to the Register setting forth the nature and extent of their claims, together with their documentary evidence, by January 1,1805, otherwise, all claims based upon a resolution of Congress would become void and for­ever barred. This act, while providing a means for the in­vestigation of private land claims in Michigan, subjected the claims and donations situated in Indiana and Illinois to review. Moreover, no provision was made for the con­firmation of incomplete grants of claims based solely upon occupation. Therefore, only a few claims were acted upon. Congress, however, did not insist upon compliance with the terms of this strict act and at the next session passed an act[17] extending the time for presenting evidence to November 1, 1805, and authorized the presentation of claims based on actual settlement. The commissioners at Detroit reported[18] in December, 1805, that there were seven classes of claims in their district:

 (1) Grants issued by Cadillac, commandant at Detroit, early in the eighteenth century which had been confirmed by the King of France. There were only two such grants.

(2) Grants by the governors and intendants of New France and Louisiana which had been confirmed by the King of France. There were six such grants.

(3) Grants by the commandant, governor or intendant which had not been confirmed by the King.

(4) Grants by the Commandant of Detroit. There were about 100 such grants.

(5) Claims derived from the British Government.

(6) Indian Grants.

(7) Claims based on occupation and settlement. There were about 400 such claims.

In their final report dated March 6, 1806, the commissioners recommended only six claims for confirmation and transmitted a great mass of rejected claims.[19] The commissioners at Vincennes in their report[20] dated March 25, 1806, stated that there were three classes of claims in their district:

(1) Claims confirmed by the governors.

(2) Claims not acted on by the governors.
(3) Claims not covered by any act of Congress.

They stated that they had encountered a great deal of diffi­culty in determining whether the confirmation of the claims in the first class had been based on French or British grants or on improvements under a court deed. They reported that there were 354 claims which fell under the first class. Of the second class claims they confirmed 19 claims based on ancient French and British grants, 16 based on improvements under court deeds, 13 militia donations, and 17 donations to families. They rejected a number of claims because of a lack of evidence. They laid a number of claims based on purchases from the Indians and deeds from the court at Vincennes before Congress for its determination. In a supple­mental report[21] dated November 26, 1806, they submitted a list of claims based on grants and confirmations by the governors which had not been timely submitted by the claimants under the Act of 1804 and raised the question as to whether they had been forfeited. The commissioners at Kaskaskia reported[22] that they could not finish their labors in time for congressional action in 1806.

It was desirable that Congress take some action on such claims since the sale and settlement of the public domain was being impeded. Therefore, on March 3, 1807, Congress passed two acts providing for the confirmation of private land claims in Michigan[23] and Indiana.[24] In Michigan, claims recommended by the commissioners were confirmed. Claims based on actual settlement prior to July 1, 1796, were to be confirmed by a new three-man commission up to 640 acres; however, each such settler was entitled to con­firmation of only one claim and it had to have been submitted timely. The new commission was to be comprised of the Secre­tary of Territory, the Register, and the Receiver. The decision of the commission was to be final and, based upon its certificate of confirmation “such lands were to be patented. The claims approved by the commission at Vincennes were confirmed by the Indiana Act. Congress also reconfirmed ‘all the claims which previously had been confirmed by the governors. Claims covering 244 acres based on purchases from the Indians were likewise confirmed. Finally, the commission at Kaskaskia was given until December 1, 1807, to complete its report.

On December 1, 1807, the commission of Kaskaskia reported[25] that as a result of the discovery of extensive perjuries it could not complete its duties. It stated that no less than 700 depositions taken at St. Charles, Upper Louisiana, bearing upon claims at Kaskaskia were perjured, and 200 depositions taken before the board were known to be false. The Michigan commission also asked for an extension of time for the presentation of claims, because many of the settlers in that area were ignorant of the necessity of the timely filing of their claims. It also pointed out that there was a need for the relaxation of the provision” that only one claim could be confirmed to a settler, since many of the claimants held more than one farm which should be confirmed. This was especially true in regard to the old farms on the Detroit River where the claimants claimed a “continuation” of eighty arpents instead of the usual forty.

A generous Congress dealt with the new Michigan problems the Act of April 25, 1808.[26] This act extended the time for the presentation of claims to the commission to January 1, 1809, and allowed persons holding forty arpents to preempt a second forty arpents before that date. Settlers who had entered upon their tracts between July 1, 1796, and March 26, 1804, could preempt a section of land and their claims were to be presented in the same manner as others for the commission's decision. Finally, settlers could secure the confirmation of more than one claim provided the aggregate area did not exceed 640 acres.

The term of the Kaskaskia Commission was further extended by the Act[27]of February 15, 1809, to January 1, 1810. It finally submitted its report[28] on February 24, 1810. The commissioners, in an effort to excuse the long delay, pointed out the wretched state of the records which rendered it practically impossible to trace the deraignment of titles from the original concessions, the difficulty in determining the extent of cultivation and improvements made by the original settler, and the wholesale perjury which had been practiced upon it. It recommended 22 claims based on ancient grants, 89 based on improvements, 254 based on donations to heads of families before 1788, and 279 military donations. It also reported on the commons and town lots at Kaskaskia, Cahokia, Prairie du Rocher, Fort Chartres, and Prairie du Pont. By mistake, the transcript of only the ancient grants, improvement claims, and donations to heads of families were transmitted to Congress. Congress confirmed these claims by the Act[29]of May 1, 1810. The missing portion of the report was supplied later, and Congress confirmed the approved claims to common fields and town lots by an Act[30] dated February 20, 1812. This act also authorized a new commission comprised of the Register and Receiver of Kaskaskia and one other person appointed by the President to examine and report to Congress concerning the validity of claims based on confirmations made by the governors. By a report[31]dated January 4, 1813, the commission made the following recommendations:

Type

Recommended

Rejected

Referred for Special Action

Ancient Grants

15

9

3

Improvement Claims

105

35

3

Donations to Heads of Families

154

36

17

Later the Register submitted[32] 18 donations, 9 claims based on improvements, and 4 military claims which had not been filed in time but which he recommended for confirmation. In closing his report, he stated:

A confirmation of these and there will be an end to this perplexing business ... On this subject I can only observe, that I am wearied with these painful duties, which, for eight years past, it has fallen my lot to discharge

Congress confirmed[33] all these claims not rejected by the commission in the following year. Since many of these claims were not specially located, a large reserve was set aside for the benefit of the claimants on the Mississippi. It goes without saying that this act was not final and for several years the owners of claims which had not been sub­mitted or which had been confirmed for less than 400 acres petitioned the commission for the confirmation of their claims up to the fullextent permitted by law. This law was extended from time to time until November 1, 1820, when practically all claims based on ancient grants or donations of Congress had been finally settled. A few special claims were subsequently confirmed by Congress, but no general legislation was enacted for the Kaskaskia District.

Meanwhile, the Commissionersof the Detroit District had been engaged in the examination and confirmation of claims under the Act of March 3, 1807. The Commission met almost daily between June 29, 1807, and February 22, 1811. During that period 738 claims were confirmed. By Act[34]  of April 23, 1812, Congress provided for the patenting of such claims. It was later learned that a number of claims held by the inhabitants of Green Bay and Prairie du Chien had not been presented to the Commission. To meet this and similar cases, Congress revived[35] the Commission and in­structed it to pass upon such claims. The Commission's power was restricted under this act, and it could only approve donations. All other claims were to be reported to Congress for its pleasure. A special agent was appointed to visit such settlements for the purpose of examining such claims. The term of the Commission was extended until November 1, 1823. The claims of settlers prior to July 1, 1812, and who had been loyal to the United States in the War of 1812, were recommended for confirmation up to 640 acres in nine separate reports.[36] All of these reports were laid before Congress in 1824, but it did not act upon them until 1828, when it confirmed all the claims which had been recommended by the Commission.[37] There was no further general legislation enacted pertaining to private land claims in Michigan.

The Old Southwest Territory

Meanwhile, the settlers in the Old Southwest Terri­tory were anxious to secure the recognition of their titles. They became quite restless when Georgia extended its juris­diction over the area east of the Mississippi and north of 31° latitude, and sold 35 million acres of land in the Yazoo area [38] to four land companies for one and a half cents an acre in 1795. These companies in turn offered to sell choice parcels of land to new settlers for less than twenty-five cents an acre. On April 7, 1798 the federal Congress passed an Act[39] creating the Mississippi Territory covering the area between the Chalahouchee and Mississippi Rivers and lying south of the mouth of the Yazoo River and north of the 31° latitude. The Act also appointed three commissioners to meet with commissioners from the State of Georgia in an effort to secure the cession of Georgia's claim to the territory to the United States. Pending such a cession, the state's rights and the rights of all persons holding under it were declared to be “firm.” Four years later the Articles of Agreement and Cession[40]were entered into, whereby Georgia ceded the territory to the United States, subject to the express agreement that the land claims of all persons who were actual settlers under Spanish or British grants on October 27, 1795 or had derived titles from an actual survey or settlement under the Act of the Georgia Legislature of February 7, 1785 would be recognized. In order to obtain some understanding of the extent of private land claims in Mississippi, President Thomas Jefferson asked its governor, William Claiborne, to survey and report upon the problem. Claiborne ordered the land claimants to file their claims promptly with the County Clerk. On November 5, 1802, he reported that he had little success in securing the filing of claims, but was able to determine that there weresome seven hundred squatters within the territory. As a result of Claiborne's report, Congress, on March 3, 1803, passed the first Act[41] respecting foreign land titles in the Old Southwest. The Act provided for the confirmation of the complete claim of any person who was a resident of the Mississippi Territory on October 27, 1795, and had obtained a grant from the British or Spanish governments, was an in­habitant of the land, and was cultivating the same on that date. Incomplete claims could be confirmed to only persons who were either twenty-one or the head of a household. The Act also provided for the recognition of two other classes of claims. The first was claims by settlers in Mississippi in 1797, when the Spanish evacuated the area, who had no evidence of title but who inhabited and cultivated the land embraced within their claim. Such claims could be confirmed up to 640 acres to persons who were heads of families or were twenty-one years of age. The second was the claims of heads of families and persons over twenty-one who had no evidence of title but who inhabited a tract of land and cultivated it on March 3, 1803. Those persons were entitled to a preferential right to purchase such lands at the same price and for which other land was sold in the Territory. It also created two land offices --one for the area east of the Pearl River, and the other for the terri­tory west of the Pearl. The claims were to be presented for investigation prior to March 1, 1804, to a commission composed of the Register of the appropriate land district and two persons appointed by the President. If the Commis­sion approved a claim, it was to issue the owner a certifi­cate entitling him to a patent free of cost for the tract if it was a claim based on a grant, order of survey, or settlement and authorization prior to the evacuation of the Spanish troops, and if theclaim was based on a preemption right, the patent was to issue upon the owner's payment of the consideration for such land. Rejected claims were to be reported to Congress by December 1, 1804.

This Act created considerable consternation among the certain classes of claimants. Parties arriving between 1797 and 1803 felt they should not be required to purchase their lands. Settlers who arrived after 1803 complained, since no provision was made whereby they could acquire land. The holders of Spanish warrants of survey protested that their claims should have been confirmed, since such warrants generally were regarded as being legal. However, the Act of March 3, 1803 was popular with a majority of the inhabi­tants of Mississippi.

Differences in interpretation of the Act of March 3, 1803[42] between the two areas caused some confusion and dis­satisfaction among the adversely affected claimants. In con­nection with claims based on inhabitation and cultivation, Congress required that the claim arise before lion that day of the year seventeen hundred and ninety-seven, when the Mis­sissippi Territory was finally evacuated by the Spanish Troops. II Congress was mistaken in its reference to the year 1797, for western Mississippi was not finally evacuated until March 31, 1798, and that event did not take place in the area east of the Pearl until February 5, 1799. The commissioners for the area east of the Pearl fixed December 31, 1797 as the deadline, while the commissioners for the western area chose March 31, 1798. Notwithstanding the ardent protests by the affected claimants in the eastern area who sought a similar interpretation, the eastern commissioners refused to change their decision. The commissioners in the eastern area re­quired pre-emptors to purchase 160 acres, while in the western area they could pre-empt up to 160 acres. This distinction was very significant, since money was tight during this period, and the eastern pre-emptors were having trouble meeting the initial and subsequent payments on their land. Also, the eastern commissioners required survey lines on pre-empted tracts to be run parallel, while in the western area this was not required. This gave the western pre-emptor more flexibility in locating his land, and therefore he was not required to include any undesirable land within his tract. The eastern claimants became so dis­satisfied with these decisions that they asked for the con­solidation of the two boards. However, before any action was taken on the request, the commission for the area east of the Pearl completed its work, and, on August 3, 1804, submitted its report. It confirmed a large number of claims[43]and reported the balance to Congress for its further action.[44]

Since titles in this area west of the Pearl were more numerous and complicated, the owners were slow in filing their claims, and surveys were difficult to obtain due to problems of terrain, hostile Indians and a scarcity of surveyors, the commissioners for the western area were not able to complete their work within the allotted time. The period for the filing of claims west of the Pearl was extended to November 30, 1804,[45] and the claimants were relieved of the necessity of filing any documents in their chain of title other than the original grant or order of survey. The claimants of land on the Island of Nannee Hubba were given until May 1, 1805 to submit their claims, and the owners of complete grants emanating from the British government were given until December 1, 1805 to file their claims.[46]

On July 3, 1807, the commissioners for the area west of the Pearl reported[47] that there were 815 claims founded on British and Spanish grants, 300 claims based on settlement and cultivation prior to the evacuation of the Spanish troops, 243 pre-emption claims, 102 claims re­quiring a judicial determination since they conflicted with British grants, and 6 claims which needed a judicial de­termination as a result of their conflict with pre-emption claims. The Commission disallowed 75 claims based on British patents, 19 on the ground they were antedated, and 171 based on British or Spanish warrants or orders of survey. On February 28, 1809 Congress authorized the sale[48] of all lands covered by rejected claims.

The Louisiana Purchase

France sold the vast 756,961,280 acre tract known as the Louisiana Purchase to the United States by the Treaty of Paris[49] dated April 30, 1803. Article 3 of the treaty provided that its inhabitants should “be maintained and pro­tected in the free enjoyment of their liberty and property.”

Since very little was known about the area, Presi­dent Thomas Jefferson wrote a number of its most reliable residents, seeking information about private land claims within the Purchase.[50] As a result of these questionnaires, he learned that the Spanish land system had been amorphous and haphazard, and that while the concessions made by the former sovereigns covered only a small portion of the Pur­chase, they were located on some of its most valuable land. He also learned that, while the Spanish and French kings had granted some land, most of the concessions had been made by colonial officials. It was estimated that only one-fourth of the claims were held under complete titles, and the balance were based upon either a written or verbal per­mission to settle upon such land by local military commanders. To further complicate the matter, he discovered that the archives at New Orleans, which contained the land records, had been burned in 1788 and again in 1794.[51] However, the most distressing news was the charge that many of the claims had been forged and antedated. Based upon this scant in­formation, Congress at first adopted policies aimed more at preventing fraud than confirming private land claims.

By Act dated March 26, 1804,[52] Congress divided the Purchase into two territories --Orleans and Louisiana. The Territory of Orleans covered the area south of the present States of Arkansas and Mississippi. The Territory of Louisiana covered the balance of the Purchase. The Act also declared all excess of one square mile in area, plus any lands given to the grantee's wife and his family; and also all grants whose title was vested in the crown on the date of the Treaty of Paris dated April 30, 1803, were declared to be null and void, unless the grantee was in actual possession of the land. The Territory of Orleans was divided into two land districts (Eastern and Western), and the Territory of Louisiana was also established as a single land district, by the Act of March 2, 1805.[53] The Register and two other persons appointed by the President constituted a Board of Commissioners, which had authority to ascertain the rights of persons claiming under French and Spanish land grants in each land district. An agent of the Treasury Department also was appointed foreach district to protect the interests of the federal government. Persons claiming land under a complete and perfect grant issued prior to October 1, 1800 were permitted to prove their claims by filing their grant papers; however, a person claiming land under an incomplete title was required to file a notice which set forth a description of the nature and extent of the claim, together with a plat of the tract. Thus, the boardhad Jurisdiction over both perfect and imperfect private land claims, and was to present its findings to Congress for its “determination thereon.” The Act recognized two classes of imperfect titles as being legitimate. The first was claims based on warrants or orders for survey issued by Spanish or French officials prior to October 1, 1800, which were occupied and cultivated on that date, the claimant was twenty-one or the head of a household, and all conditions upon which the grant had been issued had been fulfilled. The second was claims for a single tract of land, not to exceed 640 acres, by persons over twenty-one years of age or the head of a family, who had settled on and cultivated the premises under the customs of the Spanish government and with the permission of the proper local authorities prior to December 20, 1803 (the date the United States took possession of the Louisiana Purchase). All claims were to be presented to the board for the district in which the land was located before March 1, 1806.

The age qualification was eliminated in cases where the claimant had occupied the land for ten years prior to December 20, 1803, and the time limit for filing claims was extended[54] under the Act of April 21, 1806.[55] This Act also withdrew the land covered by such private land claims until acted upon by Congress.[56]

The Act of March 3, 1807 further liberalized the procedure for securing the recognition of imperfect claims. This Act repealed both the age and head of family qualifications and provided for the confirmation of grants not in excess of 2,000 acres, provided the claimants were in possession of the land for ten years prior to December 20, 1803. The board was also authorized to confirm, with­out further Congressional action, all grants not in excess of a square league(5,760 acres) made “according to the laws and established usages and customs of the French and Spanish government” to a person who was an inhabitant of Louisiana on December 20, 1803. It also directed the boards to divide the claims in their reports into three classes. The boards usually designated them as “A,” “B,” or “c” type claims. Claims which the board found to be complete under Spanish or French law were classified as “A” claims. Imperfect claims which were entitled to confirmation under the laws, usages and customs of the prior sovereign were placed in category “B.” Rejected claims were designated as Class “c” claims.

After more than five years of struggling with the problem, the boards submitted their findings to Congress. The board for the Eastern District of the Territory of Orleans filed its report on January 8, 1812.[57] The board for the Western District of the Territory of Orleans filed a report on October 16, 1812.[58] The report for the Terri­tory of Louisiana was filed on March 20, 1812.[59] Congressional confirmation of the claims allowed by the three boards was given by the Act of April 29, 1816.[60]

Shortly after the period for filing claims under the Acts of March 2, 1805 and March 3, 1807 expired, efforts were made to secure the passage of legislation which would eliminate the stringent rules requiring inhabitation, cul­tivation, and possession of the land, and thus enable the meritorious claims which had been rejected on such grounds to be confirmed. On April 12, 1814 Congress passed an Act[61] which confirmed all previously filed claims which fell within the following categories:

(1) Spanish or French grants or orders of survey made prior to December 20, 1803 where it was shown that the claimant was a resident of Louisiana at the time of such concession.

(2) Spanish or French grants or orders of survey made prior to March 10, 1804 where it was shown that the claimant was a resident of Missouri at the time of the concession.

(3) Grants which formerly had been denied because they were not inhabited prior to December 20, 1803;

Provided, however, no claim was to be confirmed which had been found by the board to be fraudulent or fore more than one square league of land.

Congress, experimenting in an effort to find a more efficient means of solving the complex land grant problem, passed an Act[62] on May 26, 1824, giving the claim­ant of any French or Spanish grant or order of survey 10­cated in Missouri or Arkansas, and made by a proper authority to a resident of Louisiana prior to March 10, 1804, a period of two years within which to file suit in the United States District Court of Missouri for the adjudication of his title. Claims not presented within two years were to be “forever barred.” While this Act did not limit the size of the claims which could be confirmed in Missouri, those in Arkansas were limited to a maximum of one square league. This Act was later[63] extended to May 26, 1829. However, very few claims were confirmed by the court.

Since there was no longer any general Act under which unfiled claims could be presented for recognition, individuals and small groups presented memorials to Congress, seeking the enactment of special relief legislation. Con­gress, session after session, passed large numbers of relief Acts in an effort to avoid these time consuming matters, Congress passed a “final” Act[64] on July 9, 1832, which per­mitted the claimants of unconfirmed French and Spanish grants to present their titles, for a period of two years, to a new commission for examination. Such claims were to be classed into two groups and reported to Congress for its further action. The first group was to be the claims which would have been confirmed according to the laws, usages and customs of the Spanish government if sovereignty had con­tinued. The second was claims which it believed were desti­tute of merit, in law or equity, under such laws, usages and customs. Many of the claims which had been approved by this commission[65] were confirmed on July 4, 1836[66] and July 21, 1860.[67] Similar relief was afforded to claimants of Spanish and French grants located in the State of Louis­iana by an Act dated February 6, 1835,[68] that authorized the owners of claims which had been recognized by previous laws as being valid for a period of two years to present them to the local Register for examination. Some 300 claims were submitted, but only about half of them were confirmed by Congress.[69]

By 1842 most of the private land claims located in the Louisiana Purchase had been acted upon, and only the large claims covering more than a league of land located in Arkansas and Louisiana remained to be settled. Therefore, on June 17, 1855 Congress passed an Act[70]authorizing claimants, for a period of four years, to institute pro­ceedings in the District Courts to adjudicate the validity of their claims. Title to most of the large grants ulti­mately was tried and quieted one way or the other under this Act.

While the vast majority of the claims had been settled, Congress was plagued with petitions for the pas­sage of another “final” Act for the adjustment of private land claims. The desired Act,[71] which was passed on June 22, 1860, created a special board of commissioners with authority to inquire into the validity of such claims and report their findings to Congress. The claims were to be divided into three groups somewhat similar to the “A,” “B,” and “c” groupings of the 1807 Act. Although the term of the commission was extended two times, few claims were filed prior to its termination on June 10, 1875.

In an effort to bring' the private land claims problem to a conclusion, Congress passed an Act on February 10, 1897[72]which relinquished title to the 288 unconfirmed claims (which were carried on the General Land Office's maps) to their occupants. However, even this unusual Act failed to quiet the land grant problem in the Louisiana Purchase “finally.” For as late as 1942, or nearly a century and a half after the acquisition of the territory, Congress re­ceiveda memorial and passed a special relief Act[73] recognizing such a claim.

The Florida Purchase

Article VIII of the Treaty of February 22, 1819[74] under which Spain ceded East and West Florida[75] to the United States, provided that all Spanish grants made before January 24, 1818 (the date on which King Ferdinand VII ex­pressed a willingness to negotiate the cession of the territory) by the king or his lawful authorities were to be “ratified and confirmed to the persons in possession of the land to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.”  Grants made after January 24, 1818 were declared null and void. Grantees, who were in possession of their grants but had been prevented from fulfilling the con­ditions upon which they had been made due to the war, were given an equal amount of time to complete them after the date of the treaty. Congress, in an effort to satisfy its obli­gations promptly under Article VIII of the treaty, passed an act on May 8, 1822,[76] a date less than two months after the Territory of Florida was organized and just a little over a year after the treaty was ratified and proclaimed, creating a three-man commission which was to examine and report to Congress upon the validity of claims located in the eastern and western districts of the Territory of Florida. All claims not filed by May 30, 1823 would lapse. The board was directed to hold sessions at both Pensacola and St. Augustine. The first session was to commence on or before the first Monday in July, 1822 at Pensacola, and the St. Augustine session was to start on the first Monday in January, 1823 and terminate on June 30, 1823. The board was to submit its report to the Secretary of the Treasury on the same day, who, in turn, would forward it to Congress for its further action on all claims which exceeded one thousand acres, or which emanated from both the British and Spanish governments. The board had authority to confirm, without further Congressional action, claims that it considered to be valid, provided they contained not more than one thousand acres.

The board convened on July 15, 1822 at Pensacola, however, only a few claims were presented. It encountered a great deal of difficulty and delay in examining even these few claims as a result of its inability to obtain a copy of the Spanish laws pertaining to the granting of land.[77] The board held nine sessions at Pensacola between July 15 and December 16, 1822. Realizing that it could not complete the work at Pensacola by the end of the year, the board made no attempt to comply with the provisions of the act pertain­ing to the holding of sessions at St. Augustine. Therefore, by act dated March 3, 1823,[78] Congress created a second board for East Florida. This act also extended the deadline for presenting claims in both districts to December 1, 1823, extended the term of the boards to February 9, 1824, in­creased the size of claims which could be confirmed ex-elusively by the boards to 3,500 acres, dispensed with the requirement that the claimants produce in evidence the docu­ments pertaining to their deraignment of title from the original grantee, and district attorneys, when requested, were to attend sessions and explain the law. If confirmed, the patent to the' land was to be made in favor of the “actual settler” of the land on the date of the cession of the land to the United States.

The board for West Florida was reorganized on September 12, 1823 and met regularly thereafter until Febru­ary 9, 1824. It set a goal to hear the claims for two tracts or three city lots each day. However, even with this strict schedule, it was unable tohear all of the pending claims in its district. Congress extended its term to January 1, 1825 by the Act of February 28, 1824,[79] and ses­sions were resumed on April 5, 1824. On November 12, 1824 the board submitted a report[80] to the Secretary of the Treasury covering its operations up to that date. The report was divided into four parts. The first part con­tained a general report on Spanish claims, the second a general report on large claims, the third a special report on 9 claims covering either an undefined area or more than 3,500 acres, and the fourth a list of claims which it con­firmed or rejected. This list showed that the board had confirmed 80 claims based on original grants or orders of surveys, 11 claims based on permissions to settle, 11 claims based on sales, 380 lots in the City of Pensacola, and 17 claims based on actual habitation and cultivation prior to February 22, 1819. Twelve claims were rejected. Notwith­standing the fact that the board had not completed all of its work on January 1, 1825, Congress refused to grant another further extension. Therefore, the board submitted its final report[81] on January 20, 1825, which listed 2 addi­tional claims covering more than 3,500 acres and 25 con­flicting claims emanating from the British and Spanish governments. The report also listed 14 lots in St. Carlos, 66 additional lots in Pensacola which were rejected by the board, and 20 claims for lots laid out on the public square by the Cabildo of Pensacola in 1813-1814.[82] The examination of the remaining claims was conducted by the Register and Receiver of West Florida under the Act of March 3, 1825.[83] New claims also could be filed with the Register and Re­ceiver any time prior to November 1, 1825. On July 13, 1825 they submitted a report[84] showing that they had examined and confirmed four lots located in Pensacola. They sub­mitted a final report[85]on December2, 1825, which confirmed 9 claims based on habitation and cultivation. They closed the report with the statement:

Having completed all the business before us, and the time allowed for the presentation of claims having expired, we have the honor to report the communication for the settlement of land claims in West Florida finally closed.

By Act dated April 22, 1826[86] Congress confirmed all of the decisions made by the board in its two reports, certain lots which had been rejected by the board, and the claims con­firmed by the Receiver and Register in the report of July 13, 1825. Thus, all of the claims in the Western District of Florida, except the large claims, finally were settled. In regard to the large claims Congress passed an Act on May 23, 1828[87] which confirmed 3 such grants to the extent of one league, and also provided:

. . . all claims to land within the Territory of Florida ... containing a greater quantity of land than the commissioners were authorized to decide ... and which have not been reported as antedated or forged by said commissioners, or register and receiver acting as such, shall be received and adjudicatedby the judge of the superior court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, con­ditions, restrictions, and limitations prescribed to the district judge, and claimants in the State of Missouri by act of Congress, approved May 26, 1824 . . .

Suits for the confirmation of such grants were to be filed within one year and prosecuted to a final judgment within two years or be forever barred both in law and equity. How­ever, such decrees were to be conclusive between the United States and the claimant only, and were not to affect the interests of third parties. The United States had the right to appeal adverse decisions to the Supreme Court in cases exceeding one league of land. The claimants of the large grants in the Western District of Florida apparently utilized this act to secure the adjudication of their claims.

Meanwhile, the board for the Eastern District of Florida had convened on August 4, 1823, at St. Augustine. Approximately 600 claims were filed, which were more than could be examined by the February 9, 1824 deadline. The problem was compounded as a result of the refusal of many of the inhabitants of St. Augustine and Fernandina to exhibit their titles on the ground that Article 2 of the Treaty implied that all private claims in these towns were valid. A number of other problems also hampered smooth op­erations by the board. First, it moved its offices twice; second, it encountered a great deal of difficulty in ob­taining documents from the public archives, and in the end it was forced to issue a subpoena duces tecum to the keeper of the public archives at St. Augustine, William Reynolds, in order to obtain the desired papers; and third, serious disagreements arose between Alexander Hamilton and the other two commissioners, Davis Floyd and William W. Blair, which threatened to disrupt the functioning of the board completely. The more serious charges made by Hamilton were (1) that the public archives had been kept in a careless and haphazard manner, which had resulted in one or more documents being altered, one stolen and another substituted, and the dependence of the board upon certified copies from the keeper of the archives, instead of insisting upon the original documents; and (2) that the favorable action of the board on several claims had been secured byfraud.[88] The Committee on Private Land Claims of the House of Repre­sentatives sustained the board and recommended that the President give it instructions as to its duties and adopt measures to insure the safekeeping of the archives.[89]

Since the board for the Eastern District of Florida was far from completing the examination of the pending claims, Congress extended its term to January 1, 1825 by the Act of February 28, 1824.[90]  In the meantime, Hamilton had resigned and the two remaining commissioners agreed to continue working on the claims. They adopted the rule that in case of a disagreement between them, the claim would be reported to Congress for disposition. However, due to Blair's frequent illness, a number of sessions had to be adjourned for lack of a quorum. Finally, on August 12, 1824, William Henry Allen was appointedto succeed Hamilton, and thereafter the board functioned more efficiently. It ad­journed sine die on December 28, 1825 and filed a report[91] of its activities on January 1, 1825. It reported that 1,004 claims had been filed.[92] Of these, 145 had been con­firmed, 26 recommended for confirmation, 40 rejected, 18 recommended but not reported, and 80 were pending under ad­visement. Thus, it had acted upon only 309, or 31 percent of the claims. On March 3, 1825 Congress[93] further extended the board's term to January 2, 1826, at which time it was to file a final report. Claimants were also permitted to continue filing their claims until November 1, 1825. The board promptly set about its work with the assistance of two additional clerks. For the convenience of the in­habitants of Jacksonville, it held several sessions in that town. It adjourned sine die on December 20, 1825 and filed reports[94] on the 1st and 31st of January, 1826. These reports showed that during the past year the board had con­firmed 326 claims, rejected 61, and referred 88 to Congress. They also disclosed that there were 528 claims still pend­ing, of which 233 were being held under advisement, awaiting further proof, and 295 had not been translated. The board was criticized on the ground that it was “killing time” just to extend its life. Floyd, in a letter to the Secretary of the Treasury, staunchly defended the board and pointed out the many difficulties under which it had operated. He charged that the doubtful claims had been held back by their owners and criticized the board in hope that their investigation might fall 1nto more favorable hands. “ [95] There is no doubt that the board for the Eastern District of Florida had more problems than the Western District. It had more claims and they generally were more complicated. However, the criticism had its effect and Congress did not extend the board's term. Instead, it transferred[96] the remaining claims to the Register and Receiver of East Florida for confirmation or reporting to Congress under the rules which had governed the board. New claims also could be filed up to November 1,1827, and the Register and Receiver were to report upon their actions on January 1, 1828. The decisions of the board confirming claims covering 3,500 acres or less were confirmed by this act. It also directed the holders of claims which covered more than 3,500 acres but had not been rejected to cause them to be connected to the public sur­veys, whereupon they would be reserved from sale pending their final disposition. The Register and Receiver submitted a report[97] on December 12, 1827, in which they confirmed 4 claims based on complete grants or orders of survey, rejected 10 claims but issued certificates to the extent of 640 acres on 6, and confirmed 69 claims based on settlement. Since the Receiver and Register were un­able to complete the examination of the monumental assign­ment within the allotted time, Congress granted additional relief. By Act dated May 23, 1828,[98] it confirmed the de­cisions of the Register and Receiver in their report. It also increased the maximum size of claims which could be confirmed exclusively by them from 3,500 acres to one square league of land, and extended the period for examining and deciding the pending claims to December 1, 1828, after which time it would be unlawful for any claimant to exhibit further evidence in support of his claim. Claims in excess of one league were to be adjudicated by the Judge of the SuperiorCourt of the district.[99] Unless suit was filed within one year and tried within two, they were to be forever barred. On January 20, 1830 the Register and Receiver of the Eastern District of Florida filed their “Final Report” [100] of claims examined under the Act of May 23, 18, 1828. It showed that they had:

(1)             Confirmed 72 Spanish grants and rejected 132.

(2)             Confirmed 16 claims under the Donation Act and rejected 41.

(3)             Reported 13 British grants.

(4)             Confirmed 21 town lots.

(5)             Rejected 49 town lots

(6)             Reported on 20 claims located within 1,500 yards of fortifications.

(7)             Reported on 30 claims filed by George J. F. Clark, Surveyor General under the Spanish government. They recommended the confirmation of 24 and rejection of 6. These were the cases in which Hamilton stated he was skeptical of Clark's testimony and characterized Clark's “pretended deputy” as being contemptible.

(8)             Reported 57 claims being without title.

(9)             Reported upon 2 instances where there were conflicting Spanish and British grants.

(10)         Reported 16 claims confirmed by the boards but left out of their reports and returned by the General Land Office.

(11)         Reported 50 cases which had been rejected by the boards but not reported.

By Act dated May 26, 1830,[101] Congress approved the report and confirmed all claims under the quantity of one league, including the conflicting Spanish claims. The Act further provided that all remaining claims which had been presented but not finally acted upon were to be adjudicated by the courts under the Act of Hay 23, 1828. It also permitted the claimant of any grant which had been recommended for con­firmation by the board or Register and Receiver to relinquish his claim to all lands in excess of one league and select one league within the boundaries of the grant. However, he had to exercise such right within one year. For all practical purposes the land grant problem was finally settled in the Eastern District of Florida with the passage of the Act of May 26, 1830. However, from time to time, Congress passed special relief legislation confirming a grant which had not been presented to the board or Register and Receiver. Also, the courts gradually adjudicated the remaining claims which had been turned over to them by the Acts of May 23, 1828 and May 26, 1830. In February, 1835 the House of Representatives asked for a report on the claims pending in the courts under such acts and on those confirmed by the Supreme Court. The report[102] which was made by Richard Keith Call, Receiver at Tallahassee and· counsel for the United States in the settlement of such claims, on December 9, 1835 shows that there were 78 cases pending in the Superior Court at St. Augustine, 14 pending in the Superior Court at Jacksonvilleand 3 on appeal to the United States Supreme Court. Therefore, by the time Florida was admitted into the Union, its private land claim problem was virtually solved.

Texas

Since the Treaty of Velasco[103] contained no express provision requiring Texas to recognize private land claims, it could have ignored all grants within its borders madeby the Spanish and Mexican regimes, except for the well accepted doctrine of public international law to the contrary. In accordance with these principlesof inter­national law, the firstTexas constitution,[104] Texas recognized and confirmed “all orders of survey legally ob­tained by any citizen of the republic, from any legally authorized commissioner, prior to the Act[105] of the late authorized commissioner, consultation closing of the land offices.” The Con­stitution also provided “that all laws now in force in Texas, and not inconsistent with this Constitution, shall remain in full force, until declared void, repealed, altered, or expire by their own limitation.” This provi­sion, therefore, affected the status of the Mexican coloni­zation laws. Consequently, the judiciary committee of the House issued a report in the fall of 1836, in which it declared that, while the colonization laws were not in any way repugnant to the Constitution, it would be good policy to repeal or modify these laws; however, it recommended nothing be done which would prejudice the rights of persons who had immigrated to Texas prior to the Declaration of Independence of 1836. Based upon this report, the Texas Legislature, on December 22, 1836, passed an act[106] which validated all perfect titles[107] made in conformity with the colonization laws of Mexico. To protect the Republic from frauds and in order to simplify its land system, the Gen­eral Land Office was created, and all land titles of the Republic were required to be registered.[108] Commissioner John P. Borden promptly proceeded to collect the land records which were essential to ascertaining the condition of the public domain. However, Borden met considerable resistance from many of the local authorities, and had to threaten several with suit in order to obtain their records. Records continued to come in from time to time until 1850, when the records from the last colony were finally deposited in the General Land Office. This addition 'marked the com­pletion of the gathering of the Spanish Archives from the depositories located within Texas.

Texas, like the original thirteen colonies, had broken away from its mother country and become independent. It retained its land records; and therefore, once the Constitution of 1836 was promulgated, no further action was necessary in connection with the confirmation of private land claims within its traditional borders. However, when it materially increased its size by passing the Boundary Act of December 19, 1836,[109] which in effect annexed the portions of Tamalpais, Coahuila, Chihuahua, and New Mexico lying north and east of the Rio Grande, other provisions had to be made for the recognition of Spanish and Mexican grants lying between the Nueces and Rio Grande, since the records of the many grants situated in that area were archived in Mexico, and could not be obtained. Borden recommended the establishment of a separate bureau under the supervision of a Surveyor General to investigate and settle such claims, but the Texas Congress continually ig­nored his suggestions. The matter was further complicated by the fact that Texas failed to sectionalize the public domain pursuant to the intent of the Constitution, and had no legislation requiring the registration of claims on which there was no record in the-General Land Office. ThomasWilliam Ward, Borden's successor, in his annual report[110] for the year 1844, complained:

(1)    Congress had taken no action on the measures formerly recommended.

(2)    The Commissioner was required to exercise judicial power when his acts should be strictly ministerial.

(3)    The diversified and discordant land system precluded the just solution of the problem without the assistance of the judiciary.

(4)    The crude and ambiguous mass of land law impeded the settlement of land claims.

(5)    County boundaries were ill defined.

(6)    County surveyors were incompetent and not subject to the control of the General Land Office.

(7)    The General Land Office should be allowed to prepare official county maps.

(8)    Claims which had not been registered in the county or General Land Office within a specified period should be forfeited.

(9)    The archives should be properly housed and translated.

The vagueness of descriptions of many grants, the primitive quality of the county maps, the great variety and nature of title pagers, the overlapping of surveys, and the failure of claimants to file their testimonios in the General Land Office or county records created an immense amount of confusion over land titles in the region between the Nueces and Rio Grande. In his Annual Report[111] for 1849, Commissioner George W. Smyth mentions that he was unwilling to take the responsibility of patenting tracts located by virtue of Texas land certificates which had been located upon claims of long standing in the Rio Grande Valley until the legis­lature had an opportunity of taking action on the subject.

This forced the legislature to pass the Act[112] of February 8, 1850, which provided for the creation of a two-man com­mission to ascertain the validity of land titles which had emanated from the Spanish and Mexican governments prior to March 2, 1836,[113] and were situated in the Counties of Kinney, Webb, Starr, Cameron, Nueces, Presidio, El Paso, Worth and Santa Fe. The commissioners were to hold office “until the next meeting of the legislature.”

William H. Bourland and James B. Miller, the commissioners appointed to make the investigation, were instructed to proceed to the county seat of each of the named counties, where notice was to be posted notifying all interested persons to present their claims, with a full description of the lands claimed, all documents evidencing their title, and sworn affidavits, giving full particulars of their ownership. The Commission was vested with broad powers to summon witnesses and to take testimony in support of or in opposition to the validity of each claim presented to it for investigation. After the completion of the tour, the Commission was to submit to the legislature an abstract of every claim examined, together with its recommendations concerning its validity.

On August 26, 1850, Bourland recommended the confirmation of a number of grants located in Webb County, Texas. Nine days later the Texas Legislature confirmed[114] each of such grants, and required the Commissioner of the General Land Office to issue patents to the claimants upon receipt of field notes from the county surveyor. This prompt, favorable action by the legislature alleviated the fears and suspicions of the claimants of grants in the area, many of whom had previously believed that the investigation was merely a device to avoid the recognition of ­ their titles. Time ran out before the Commission could conduct an investigation in the upper Rio Grande counties. On November 11, 1851, the Commission submitted its report[115] to the governor covering the results of its investigations in Kinney, Webb, Starr, Nueces and Cameron Counties. An Act[116] was passed by the Texas Legislature on February 10, 1852, which relinquished all the state's rights in and to 192 grants which had been favorably recommended by the Commission. The claimants were required to have their lands surveyed and patented.

Since many of the inhabitants of the southern and western portions of Texas had not had an opportunity to submit their titles for recognition by the Bourland ­Miller Commission, a second Commission was created[117] on February 11, 1854, to investigate and report upon land titles located in the Rio Grande Valley of Texas. Charles S. Taylor and Robert H. Lane were appointed commissioners of this new Commission, which has been referred to as The Rio Grande Commission. After the conclusion of an extensive tour, the Commission filed a report covering its work, together with supporting evidence, with Governor E.M. Pease. In their report Taylor and Lane recommended the confirmation of only a portion of the claims which had been investigated. Governor Pease transmitted the report to the legislature on November 27, 1855, for its information and further action. An Act was subsequently passed by both houses of the legislature which would have confirmed title to sixty grants located in Nueces, Webb, El Paso, Kinney, Starr, Hidalgo and Cameron Counties. However, this Act was vetoed by Governor Pease on August 23, 1856, on the grounds that it included many tracts of land which had not been recommended by the Rio Grande Commission. Seven private land claims located in El Paso County subsequently were confirmed by Special Relief Acts.[118]

By the Acts of February 11, 1860,[119] and August 15, 1870,[120] permission was granted for a limited time to the original grantees, his heirs and assigns, to institute suit against the state for the confirmation of any grant emanating from the Spanish or Mexican governments prior December 19, 1836, and situated between the Nueces and Rio Grande and lying east of a line drawn from the upper boundary of Webb County to the mouth of Moros Creek. The court was authorized to investigate the title in accordance with public international law, the laws, usages and customs of the government from which the· claim was derived, and the principles of equity, so far as applicable, and give judgment for the confirmation of the same when the title was perfect, or, when imperfect, if the same would have been matured into a perfect title under the laws, usages, and customs of the government under which it originated. The later Act provided that all grants which had been confirmed under the Acts of February 10, 1852, February 11, 1860, or August 15, 1870, and were not surveyed and the field notes returned to the General Land Office by January 1, 1875, would be forever barred and such lands would become part of the public domain of the state.[121] Since it was doubtful that the state could, by this simple ipse dixit act, cause the forfeiture of a complete and perfect grant and as a result of the strong sentiment against latent claims, a provision[122] was incorporated in the Constitution of 1876, which provided:

 

No claim of title or right to land, which issued prior to the thirteenth day of November, 1835, has not been duly recorded in the county where the land was situated at the time of such record, or which has not been duly archived in the General Land Office, shall ever hereafter be deposited In the General Land Office, or recorded in this State, or delineated on the maps, or ,used as evidence in any of the courts of this State, and the same are State claims, but this shall not affect such rights or presumption as arise from actual possession ...

The practical effect of this provision was to prohibit the use of a testimonio or certified copy of the protocol of a grant obtained from the Mexican Archives as evidence in a proceeding to establish the validity of a grant unless the grant papers had been recorded in the county or filed in the General Land Office prior to February 15, 1876, and thereby deny the holders of such claims the right or power to exhibit their rights in due course of law. The Texas Supreme Court declared[123] this portion of the Constitution of 1876 unconstitutional! This decision was based on the ground that, since Spanish and Mexican grants were contracts, such an arbitrary declaration clearly impaired the obliga­tions of contracts, which was prohibited by Article 1, Section 10, of the United States Constitution, and their owners deprived of their property in violation of the due process of law provision of Article 14 of the Federal Constitution. Subsequent decisions[124] held that if the grants were perfected under Spanish or Mexican law, their confirmation by the Texas Legislature was not necessary. These decisions validated[125] numerous grants especially the porciones which had been made by Jose de Esbandon in 1767, but not presented to the Bourland--Miller Commission.

In a final attempt to settle private land claims in the area between the Nueces and Rio Grande, the Texas passed the Act[126] of September 3, 1901, which pro­vided for “ascertaining and adjudicating certain claims against or in favor of the State for land, titles to which are claimed to have emanated from the Spanish or Mexican governments.” It authorized any person claiming to be the owner of any such grant situated between the Nueces and Rio Grande east of a line drawn from the northern boundary of Webb County and the mouth of Moros Creek to file suit for its adjudication in the District Court of Travis County within two years. Since 1903 there has been no general legislation in effect in Texas providing for the investigation and confirmation of private land claims, and one may at this late date assume that the problem finally has been solved, except for occasional vacancy and shore line questions.

California

Article VIII of the Treaty of Guadalupe Hidalgo[127] assured landowners in California who were not established there that their property rights would be “inviolably re­spected.”  Those who continued to live in California but elected to retain their Mexican citizenship were guaranteed “the free enjoyment of their liberty, property, and re­ligion, without restrictions,” and American citizenship, with all its rights and privileges, was granted to all residents of the ceded area who did not elect within one year to retain their Mexican nationality. Early in 1849 Congress considered a bill for ascertaining the validity of private land claims located in California and New Mexico. This bill provided for the appointment of a Surveyor-General, Register of Lands, and Receiver, to act as a board of commissioners, with authority to investigate and report within two years on all titles. Senator Thomas Hart Benton, the champion of the claimants of numerous large grants located in Missouri, opposed the bill. He offered a sub­stitute bill, which authorized the filing of claims with the Recorder of Land Titles, and provided that all claims filed in his office would be automatically recognized, unless challenged by the United States Attorney. The decision of the District Court on any challenged grant having a value of less than $5,000 would be final. Benton argued that to require their investigation and confirmation by a board of commissioners, the courts, or Congress --the procedures previously utilized in other jurisdictions containing Spanish, French and British grants --would violate the provisions of the Treaty of Guadalupe Hidalgo. He con­tended that to require each claim to' meet a legal test would negate the “inviolably respected” provision of the treaty, and case the burden of proving the validity of their grants upon the claimants.[128]

Meanwhile, in an effort to obtain concrete data for Congress's future use, the military governor of Cali­fornia, Colonel Richard B. Mason, ordered Captain Henry W. Halleck, Acting Secretary of State, to investigate and report upon the private land claims and the laws relative to their issuance. On March 1, 1849 Halleck submitted a report[129] to Mason, wherein he gave his opinion on:

(1)    The laws and regulations which govern the grant­ing or selling of public lands in California.

(2)    The laws and regulations respecting the lands and other property belonging to the missions of California.

(3)    The titles of lands in California which may be required for fortifications, arsenals, or other military structures, for the use of the general government of the United States.

 

In regard to private land claims, he stated that:

A large number of land titles in California are very indefinite with respect to boundaries, the grants being for so many “sitios,” “creaderos, “ etc., lying between certain hills, streams, etc., as shown by rough  sketches attached to the peti­tions. These sketches frequently contain double the amount of land included in the grants; and even now very few of these grants have been sur­veyed or their boundaries definitely fixed...

He also pointed out that many grants had not been confirmed bythe Territorial Assembly, as required by the Regulations of November 21, 1828;[130] that many others, contrary to the Colonization Law of August 18, 1824,[131] had been lo­cated within ten leagues of the seacoast, and others con­tained more than the maximum of one league of irrigable land. Halleck also gave a brief history of the seculari­zation of the missions, and discussed the titlesituation at San Diego, Monterey, San Francisco, Alcatraz Island, and other points where it might be desirable to establish military posts or fortifications. Continuing, he stated:

It has been alleged by very respectable authority that certain titles to land were given by Governor Pico after the United States had taken possession of the country, and made to bear date prior to the 7th of July, 1846 ... In settling land titles in this country, a broad distinction should be made between titles of this kind and those which were given in good faith by the California governors, previous to our taking possession of this country, but which have failed to receive the requisite con­firmation for want of action on the part of the territorial legislature ...

Numerous applications have been made to the gover­nor to decide upon the validity of these titles; but all questions of this kind have been postponed until some competent tribunal shall be formed for their adjudication, the several claimants being advised in the meantime to have their lands surveyed  . . . And, inasmuch as these questions touching upon the validity of land titles are exceedingly numerous, and as disputes are daily arising respecting the rights of the different claimants, it is deemed ex­ceedingly important to the peace and prosperity of the country that measures be taken without delay for the speedy and final settlement of these titles upon principles of equity and justice. Attached to the report were a number of supporting documents.
 

Halleck’s report was forwarded by Mason to the Adjutant General, R. Jones on April 13, 1849. Mason, in his transmittal letter,[132] stated:

 I would call the attention of the government particularly to the representations made In this report respecting ... the spurious titles to land which evidently belong to the public domain. Much of the land thus held by titles at least very doubtful, if not entirely fraudulent, has been divided up and sold to speculators, who will endeavor to dis­pose of it to new settlers at exorbitant profits.

In closing, he reiterated Halleck's recommendation that a procedure be established promptly which would permit the speedy and final settlement of private land claims.

Since Benton was a most influential politician in Washington, his views could not be lightly dismissed. However, the serious problem noted in Halleck's report caused Congress to move cautiously. In an effort to pacify Benton and also secure further information on the problem, Benton's son-in-law, William Carey Jones, was appointed as a confidential agent on June 29, 1849 by Secretary of Interior Thomas Ewing to examine and report on the condi­tion of land titles in California. Jones' investigation was to be conducted pursuant to a detailed set of instruc­tions[133] issued by the Commissioner of the General Land Office.  

Justin Butterfield, on July 5, 1849. These instructions directed him to examine the records in the archives of Mexico City, California, and New Mexico, if time permitted, in order to determine the character and extent of foreign titles located in the territory acquired from Mexico under the Treaty of Guadalupe Hidalgo, and report thereon before the end of the next session of Congress. The report was to be supported with an abstract showing (1) Spanish grants, (2) Mexican grants made prior to the outbreak of the revo­lution, and (3) grants made during the revolutionary period. It also was to include the date each grant was issued, its area, boundaries, name of the original grantee, date of survey, granting official, and date of approval by the Territorial Assembly. Jones was instructed to separate bona fide grants from those which, in his judg­ment, were questionable. He was further directed to include copies of the various forms of grants and a compara­tive table of units of land measurement employed in Spain, Mexico, and the United States. A study of mission holdings, mineral concessions, Indian titles, and claims by indi­viduals for islands and sites suitable for military pur­poses was also requested.

When Jones arrived at Monterey in September, 1849, he found a convention in session working on California's first constitution. However, he was able to secure access to the archives and commenced his arduous task. He found the records to be incomplete and in a chaotic condition. Upon the completion of his work in Monterey, Jones went to San Jose, San Francisco, Los Angeles and San Diego and examined the archives. Before returning to Washington, D.C., he spent a little over two weeks examining the archives at Mexico City. He pre­sented his report on April 10, 1850,[134] to Ewing, who in turn caused it to be submitted to Congress by President Millard Fillmore. The report describes (l) the mode of creating land grants in California while under the Spanish and Mexican governments, (2) the history and status of lands under the California mission system, (3)  claims covering sites of strategic military value, and (4) title to minerals. Jones attached to the report a copy of the laws, regulations, instructions, decrees and orders affect­ing private land claims in California which he had gathered: land grant forms and a list of the grants recorded in the archives at Monterey. In connection with this list, he cautioned that the list had been based completely on data obtained from the “File of expedientes of grants --that is, all the proceedings (except of the assembly) relating to the respective grants secured, those of each grant in a separate parcel, and marked and labeled with its number and name.” Continuing, he stated:

This file is marked from No. 1 to No. 579, inclu­sive, and embraces the time between May 13, 1836 to July, 1846. The numbers, however, bear little relation to the dates. Some numbers are missing, of some there are duplicates -that is, two dis­tinct grants with the same number. The expedientes are not all complete; in some cases the final grant appears to have been refused -in others, it is wanting. The collection, however, is evidently intended to represent estates which have been granted, and it is probable that in many or most instances the omission apparent in the archives is supplied by original documents in the hands of the parties, or by long permitted occupation.

In regard to the size of California grants,[135] he stated:

I did not find in the archives ... any record of large grants in the sense I suppose the term to be here used. There are a number of grants to the full extent of the privilege accorded by law to individual concessions, and of the authority of the local government to make, independent of the central government, to wit: of eleven sitios or leagues square. These are understood in the country, however, to be large claims reputed to be founded on grants direct from the Mexican govern­ment, one held by Captain Sutter, another by General Vallejo. The archives (as far as I could discover) only show that Captain Sutter received, on the 8th day of July, 1841, from Governor Alvarado, the usual grant of eleven sitios on the River Sacramento, and this is all I ascertained. The archives likewise show that General Vallejo received fromGovernor Michellorrena, on the 22nd of October, 1823, a grant of ten sitios called Petaluma ...

Concerning the boundary problems, he continued:                                                                                                        

The principal difficulty that most attend the separation of old grants from the public lands--or rather, to ascertain what is public domain and what is private property in the parts where those old grants are situated --is in the loose desig­nation of their limits and extent. The only way that presents itself of avoiding this difficulty, and of doing injustice both to claimant and the government, would seem to be in receiving verbal testimony of occupation and of commonly reported boundaries, and thereby, with due consideration of the laws and principles on which the grants were made, governing the surveyor.

Passing next to the question of spurious grants, he stated that while there were no Mexican grants which purported to have been issued after the United States conquered the area, it generally was understood that there were some simulated grants in existence which had been made by persons who formerly had the “faculty of making grants.” However, he believed that “it would not be difficult for a person skilled in grants ... and acquainted with the archives and the various facts to be gathered from them, to detect any simulated paper ...” His next point was this:

A very early law (Law 6, Til 5, Lit. 4, Recop. de Indias) fixed “four leagues of limits and land (de termino y Territorio) in square prolonged, according to the nature of the tract,” for a settlement of thirty families; and I suppose this is as small a tract as has usually been set apart for village uses and liberties ... sometime much more extensive privileges have no doubt been granted...It would seem that, where no special grant has been made, or limit assigned to a village, the common extent of four leagues would apply to it.136]

In closing, Jones declared that the claims in California were “mostly perfect titles,” and those which were incom­plete had the same equities as those which were perfect.  He believed that the state of land title would allow the public lands to be ascertained and the private lands set apart by judicious measures with little difficulty. He also cautioned and recommended:

... Any measure calculated to discredit, or cause to be distrusted the general character of the titles there, besides the alarm and anxiety which it would create among the ancient population and among the present holders of property, would, I believe, also retard the substantial improvement of the country. A title discredited is not de­stroyed; but everyone is afraid to touch it, or, at all events, to invest labor and money in improvements that rest upon a suspected tenure. The holders are afraid to improve; others are afraid to purchase, or, if they do purchase at its dis­credited value, are willing only to make incon­siderable investments upon it. The titles not called in question (as they certainly, for any reason which I could discover, do not deserve to be) the pressure of population, and the force of circumstances, will soon operate to break up the existing large tracts into farms adapted to the nature of the country and wants of the community, and this under circumstances and with such assurance of tenure as will warrant those substantial im­provements that the thrift and prosperity of the country in other respects invite.

 

I think the rights of the government will be fully secured, and the interests and permanent prosperity of all classes in that country best consulted, by no other general measure, in relation to private property, than an authorized survey, according to the grants where modern, or since the accession of the Mexican government; or according to or from information in any way received, there may be reason to suppose a grant invalid, the government (or a proper officer of it) may direct a suit to be in­stituted for its annulment.

The discovery of gold and its admission into the United States greatly intensified the need for a prompt set­tlement of the land grant problem in California. There­fore, John C. Fremont, one of California's first Senators and also a son-in-law of Benton, introduced a bill providing for the creation of a board of commissioners to determine the validity of land titles from whose decision only the claimant could take an appeal to the federal district and supreme courts. The bill, on being opposed by Benton, was tabled. On March 3, 1851 California's other senator, William M. Gwin, who was spokesman for the squatter element, introduced a substitute bill, which eliminated the restric­tions on appeals by the government. Gwin wanted the de­termination of land titles to be more judicial in nature and less political. Benton strongly opposed the creation of a commission to pass on land titles and offered an amendment to Gwin's bill, to provide for the adoption of the procedure he had previously proposed. During the debates[137] over the bill Benton was almost beside himself. He roared out his condemnation of the bill and charged that it would result in a general confiscation of the lands of the old settlers of California. Fremont maintained that it would force the claimants to try their claims before three tribunals and condemned its sponsors as being inter­ested in making fat fees from appeals, but made no mention of the profits he would receive if the claims in which he had a personal interest were recognized. A coalition of & conservative Whigs and Democrats, whose primary interest was settling a question which had been hanging fire for three years, adopted Gwin's bill and extended the well tried system of settling land titles to California. The bill passed the Senate on February 6, 1851 and the House on March 3, 1851. The act[138] was approved by President Fillmore on the same day. There was nothing radical or new in the act. It provided for the appointment by the President of a board of three commissioners for a term of three years from the date of the act. Every person claiming land in California by virtue of any right or title derived from the Spanish or Mexican governments was required to present his claim, together with supporting documents, evidence and testimony, to the commission within two years. Any claim not timely filed would be deemed to be a part of the public domain. An agent was to be appointed by the Presi­dent to represent and protect the government and the public interest. The board was required to decide promptly upon the validity of the claim and certifyits decision to the district attorney. Either party might appeal the commis­sion's decision to the federal district court for a trial de novo[139] where additional-testimony could be introduced. Either party could appeal the district court's decision to the Supreme Court of the United States. Each of the tri­bunals, in reaching its decision, was to be governed by the Treaty of Guadalupe Hidalgo, the law of nations, the laws, usages and customs of the former sovereign, the principles of equity, and the decisions of the Supreme Court, so far as they were applicable. Confirmed claims were to be sur­veyed by the Surveyor General, and on the presentation of his certificate and plat, a patent was to be issued to the confirmee by the General Land Office; however, such patent was to be conclusive only as against the United States. Claims based upon grants to towns or to individuals, and upon which a town subsequently was built, were to be pre­sented by the municipal authorities or the original grantee, instead of by the lot owners. The board's term was twice extended for an additional year each time. [140]

The board was organized in San Francisco in December, 1851, and convened a month later. With the excep­tion of a brief term in Los Angeles in the autumn of 1852, all sessions were held at San Francisco. Having completed its business, it adjourned ad finem on March 1, 1856. There were 813 claims acted upon under the Act of March 3, 1851. The 588 claims finally confirmed covered 8,877,548.73[141] acres. The smallest confirmed grant contains 1,770 acres, and the largest covers 133,440.78. The rejected and withdrawn claims embraced approximately three million acres. [142] Bancroft has made the following observations in connection with the adjudication of land titles in California.[143] Bancroft[144] has made the following observations in connection with the adjudication of land titles in California:

So far as the figures tell the story, the district court seems to have been more favorable to claimants than the board, overruling many more rejections than confirmations; but it should be noted that the court often heard new testimony by which the claimants strengthened their weak points. It is known that a few fraudulent were finally confirmed and that a few good ones were rejected; yet there is no reason to doubt that the three tribunals performed their duties honestly and ably . . . .

 

 

 


[1] These claims extended from the northern shores of the Michigan lower peninsula south to the old French settlement near Detroit; thence to Green Bay and Prairie du Chien in Wisconsin; thence to the old Vincennes post in Indiana; thence down the east bank of the Mississippi past the settlements of Peoria, Prairie du Rocher, and Kaskaskia in Illinois, and thence south into the portion of Missis­sippi and Alabama north of 31° latitude. Donaldson, The Public Domain, 365 (1884). A detailed discussion of the private land claims problem in the Old Northwest Territory is contained in Treat, The National Land System, 198-229 (1910). A similar study on the Old Southwest Territory is Haynes, “Disposal of Land in the Mississippi Territory,” 24 Journal of Mississippi History, 226-253 (1962).

[2] 2 Miller, Treaties and Other International Acts of the United States of America, 151-157 (1931).

[3] Articles of Confederation; a copy is contained in 1 Stat. 4-9 (1856).

[4] Hening, Statutes at Large, Virginia, 564-7 (1819).      

[5] 5 Carter, The Territorial Papers of the United States, 142-146 (1937).

[6] 2 Miller, Treaties and Other International Acts of the United States of America, 318-338 (1931). This treaty established the boundary between the United States and Spain at 31o latitude.

[7] An Ordinance for Ascertaining the Mode of Dis­posing of Land in the Western Territory, Passed May 20, 1785, 4 Journal of the American Congress, 520-522 (1823).

[8] Ibid. 823-824.

[9] Ibid., 857-858.

[10] American States Papers, Public Lands, 9-16 (1834).

[11] Ibid., 18-22.

[12] An act for granting land to the inhabitants and settlers at Vincennes and the Illinois country, in the ter­ritory northwest of Ohio, and for confirming them in their possession, Chap. 27, 1 Stat. 221-222 (1791).

[13] 2 American State Papers, Public Lands 84-90 11834).

[14] 2 Miller, Treaties and Other International Acts of the United States of America, 245-264 (1931).

[15] 1 American State Papers, Public Lands, 190-193 (1834).

[16] An act making provisions for the disposal of the public lands in the Indiana Territory, and for other purposes, Chap. 35, 2 Stat. 277 (1804). A number of territories were created out of the Old Northwest Territory. The area northwest of the Ohio River was divided into two parts on May 7, 1800. The western part was established as the Territory of Indiana, and the eastern portion became Ohio. Illinois was carved out of the Territory of Indiana on February 3, 1809. Michigan was organized as a Territory on June 30, 1805, from the eastern part of Indiana. Douglas, Boundaries, Areas, Geographic Centers and Altitudes of the United States and the Several States, 186-195 (1932).

[17] An act supplementary to the act entitled “An Act Making Provision for the Disposal of the Public Lands in the Indiana. Territory, and For Other Purposes,” Chap. 43, 2 Stat. 343 (1805).

[18] 1 American State Papers, Public Lands, 263-284 (1834) .

[19] Ibid., 305.

[20] Ibid., 288-303.

[21] Ibid., 558-581.

[22] Ibid ., 285.

[23] An act regulating the grants of land in the Territory of Michigan, Chap. 34, 2 Stat. 437 (1807).

[24] An act confirming claims of land in the district of Vincennes and for other purposes, Chap. 47, 2 Stat. 446 (l807).

[25] 1 American State Papers, Public Lands, 590 (1834).

[26] An act supplemental to “An Act Regulating the Grants of Land in the Territory of r1ichigan,” Chap. 67, 2 Stat. 502-504 (1808).

[27] An Act to Revive and Continue for a Further Time the Authority of the Commissioners of Kaskaskia, Chap. 16, 2 Stat. 517 (1809).

[28] 2 American State Papers, Public Lands, 123-141 (1834).

[29] An Act Confirming the Decisions of the Commissioners of the Claimants of Land in the District of Kaskaskia, Chap. 40, 2 Stat. 607 (1810).

[30] An Act for the Revision of Former Confirmations and for Confirming Certain Claims to Land in the District of Kaskaskia, Chap. 22, 2 Stat. 677-678 (1812).

[31] 2 American State Papers, Public Land, 210-241 (1834).

[32] Ibid., 741-743 .

[33] An Act Confirming Certain Claims to Land in the Illinois Territory, and Providing for Their Location, Chap. 61, 3 Stat. 125 (1814).

[34] An Act Authorizing the Granting of Patents for Land According to the Surveys That Have Been Made; and to Grant Donation Rights to Certain Claimants of Land In the District of Detroit; .and for Other Purposes, Chap. 62, 2 . Stat. 710 (1812).

[35] An Act to Revive the Powers of the Commissioners for Ascertaining and Deciding on Claims to Land in the Dis­trict of Detroit, and for Settling the Claims to Land at Green Bay and Prairie du Chien, in the Territory of Michigan, Chap. 85, 3 Stat. 572 (1820).

[36] 5 American State Papers, Public Lands, 47-328 (1834) .

[37] An Act to Confirm Certain Claims to Lands in the Territory of Michigan, Chap. 28, 4 Stat. 260 (1828).

[38] The lands in question had been sold to three Yazoo companies on December 21, 1789, but they had not paid the consideration. The land was resold to four new com­panies on January I, 1795. Meanwhile, the cotton gin was invented and the value of these prime cotton lands skyrocketed. When it was learned that the 1795 sales had been secured through corruption and bribery, the Georgia Legislature res­cinded the sales. The Supreme Court [Fletcher v. Peck, 6 Crouch (10 U.S.) 86 (1810)] held that the rights of the inno­cent purchasers who had purchased land from the Yazoo com­panies were protected under the contract clause of the fed­eral Constitution, and, therefore, the rescinding act was unconstitutional. Since there was no federal legislation under which the Yazoo claimants could secure the satisfaction of their claims and public sentiment was against permitting them to obtain these valuable lands at such a low price, on March 31, 1814 Congress passed an Act [an Act Providing for the Indemnification of Certain Claimants of Public Land in the Mississippi Territory, 3 Stat. 116 (1814)], which author­ized such parties to exchange their claims for certificates. The value of the certificate was to equal the holders' in­vestments in their Yazoo claims. These certificates could then be used for the purchase of public land in Mississippi. Any claim not presented for settlement under this Act by January 1, 1815 was forever barred. In 1815 the Secretary of the Treasury reported that the United States had issued certificates totaling $4,282,151.12 to the Yazoo claimants. An account of the Yazoo land problem is contained in Sakolski, The Great American Land Bubble, 124—141 (1932).

[39] An Act for the Amicable Settlement of Limits With the State of Georgia, and Authorizing the Establish­ment of a Government in the Mississippi Territory, 1 Stat. 549 (1798).

[40] [sic]

[41] An Act Regulating the Grants of Land and Providingfor the Disposal of the Lands of the United States South of the State of Tennessee, Chap. 27, 2 Stat. 229 (1803). This Act did not guarantee the recognition of the Yazoo claims which had been repudiated by the State of Georgia.

[42] An Act Regulating the Grants of Land, and Pro­viding for the Disposal of Lands of the United States, South of the State of Tennessee, Chap. 27, 2 Stat. 229 (1803).

[43] 1 American State Papers, Public Lands, 628 (1834). The confirmed claims were: (a) British and Spanish grants ­5; (b) Incomplete grants or claims based on settlement and cultivation prior to 1797 -76; Spanish' grants which required judicial determination as a result of conflicts with British grants -10; Pre-emption claims -62; Pre-emption claims which required Judicial determination as a result of conflict with British grants -4; and British patents -26.

[44] 0n January 5, 1809, Secretary of the Treasury Albert Galatin reported that seventeen claims based on British patents and fifty-five claims based on Spanish war­rants or orders of survey had been disallowed. 1 American State Papers, Public Lands, 598 (1834).         

[45] An Act supplementary to the Act entitled “An Act Regulating the Grants of Land, and Providing for the Disposal of the Lands of the United States South of the State of Tennessee,” Chap. 61, 2 Stat. 303 (1804).

[46] An Act further to amend an Act entitled, “An Act Regulating the Grants of Land, and Providing for the Dis­posal of Lands of the United States South of the State of Tennessee,” Chap 24, 2 Stat. 323 (1805).

[47] 1 American State Papers, Public Lands, 598, 859 (1834) .

[48] An Act for the Disposal of Certain Tracts of Land in the Mississippi Territory Claimed Under Spanish Grants, Reported by the Land Commissioners as Antedated, and to Confirm the Claims of Abraham Ellis and Daniel Harregal, Chap. 22, 2 Stat. 526 (1809).

[49] 2 Miller, Treaties and Other International Acts of the United States of America, 498-505 (1931).

[50] Jefferson to Claiborne, July 17, 1803, in 9 Carter, The Territorial Papers of the United States, 3-4 (1934). A number of monographs have been written on the private land claims problem in the States of Louisiana and Mississippi. See Pelzer, “The Spanish Land Grants of Upper Louisiana,” 9 Iowa Journal of History and Politics 3-37 (1913); Burns, “The Spanish Land Laws of Louisiana, 11 Louisiana Historical Quarterly, 557-581 (1928); Barnes, “Origin of Private Titles in Louisiana: Federal and State Transfers of Land,” 27 Tulane Law Review, 59-75 (1952); and Coles, “Applicability of the Public Land System of LOU1~­lana,” 43 Mississippi Valley Historical Review, 39-58 (1957) .

[51] 1 American State Papers, Miscellaneous, 344­-- 356 (1834).

[52] An Act Erecting Louisiana into Two Territories, and Providing for the Temporary Government Thereof. Chap. 38, 2 Stat. 283 (1804). The Territory of Orleans, which comprised the portion of the Louisiana Purchase south of 310 latitude and west of the Perdido River, was admitted into the Union as the State of Louisiana by Act dated April 8, 1812. [An Act for the Admission of the State of Louisiana Into the Union and. to Extend the Laws of the United States to Said State, Chap. 50, 2 Stat. 701 (1812)]. The area north and east of Lake Ponchartrain was added to Louisiana two days later. The Territory of Louisiana covered all or part of 16 present states. Its name was changed to Missouri Territory on June 4, 1812. The Arkansas Territory was created on March 2, 1819 out of the Missouri Territory. [An Act Establishing a Separate Territorial Government in the Southern Part of the Territory of Mis­souri, Chap. 80, 3 Stat. 493 (1819)]. The State of Missouri was carved out of the Missouri Territory on August 10, 1821. [A Proclamation by the President of the United States Respecting the Admission of the State of Missouri Into the Union, 3 Stat. 797 (1821)].

[53] An Act to Ascertain and Adjust the Titles and Claims to Land Within the Territory of Orleans and the District of Louisiana; Chap. 26, 2 Stat. 324-329 (1805).

[54] The Act of April 21, 1806 extended the time to January 1, 1807. It was later extended to July 1, 1808, then to November 1, 1812, and again to January 1, 1814.

[55] An Act Supplement to an Act Entitled “An Act for Ascertaining and Adjusting the Titles and Claims to Land, Within the Territory of Orleans and the District of Louisiana,” Chap. 34, 2 Stat. 391-395 (1806).

[56] An Act Respecting the Claims to Land in the Territories of Orleans and Louisiana, Chap. 36, 2 Stat. 440-44:.9 (1807).

[57] 2 American State Papers, Public Lands, 258-439 (1834). The board failed to classify the claims in the three categories specified by the Act. The claims were either recommended for confirmation in whole or in part, or for rejection. There were 1,341 claims in the former cate­gory, and 586 in the latter.

[58] Ibid., 745-871; 3 American State Papers, Public Lands, 77-16r-(1834). The board decided 3,165 claims, con­firmed 2,278(“A” and “B” claims) and rejected 887 (“C” claims).

[59] 2 American State Papers, Public Lands, 463-688 (1834). The board called attention to the fact that in its district there was little uniformity in the claims which fell into 49 district categories. However, it was able to reduce these to five major groups, which were: (1) French and Spanish grants dated prior to October 1, 1800 covering an area of more than 800 arpents (672 acres) but less than a league, and which was inhabited or cultivated prior to December 20, 1803 or granted for the purpose of building a mill or other public purpose, and all conditions upon which the land was granted were fulfilled; (2) French and Spanish grants identi­cal to group 1, except they covered an area not exceeding 800 arpents; l3J French and Spanish grants similar to those in group 2 where the tract was the only one granted to the petitioner, it did not conflict with any other grant or sur­vey, and it was free of suspicion of fraud; (4) claims for land inhabited or cultivated prior to December 20, 1803 with or without permission; and (5) claims for villages, commons, common fields, and lands adjacent to villages which had been given to its inhabitants for cultivation prior to December 20, 1803. The board confirmed 1,342 claims and rejected approximately 2,000 others. About one-fourth of the rejected claims & fell in the 5th category, and could not be confirmed, .since they did not fall within the scope of the Act of March 3, 1807. On June 13, 1812 Congress passed an Act [an Act making further provisions for settling the claims in the Territory of Missouri, Chap. 99, 2 Stat. 748-752 (1812)], which enabled villages, lot holders, and others to present their claims. On April 6, 1816, Recorder Frederick Bates submitted a report in which he confirmed 1,746 claims, conditionally confirmed 8 more, and rejected 801. 3 American Papers, Public Lands, 314-331 (1834). The claims ap­proved by Bates were confirmed by the Act of April 29, 1816. [An Act for the Confirmation of Certain Claims in the West­ern District of Louisiana and in the Territory of Missouri, Chap. 159, 3 Stat. 328-330 (1816)].

[60] An Act for the Confirmation of Certain Claims to Land in the Western District of the State of Louisiana and in the Territory of Missouri, Chap. 99, 3 stat. 328-330 (1816). The Act of April 29, 1816 confirmed the Class “A” and Class “B” claims, without requiring the issuance of a patent. Therefore, while desirable, a patent was not es­sential to vest legal title in the confirmees. Aubuchon v. Ames, 27 Mo. 93 (1858); Joplin v. Chachere, 192 U.S. 94 (1903); and Breaux v. Lefort, 209 La. 506, 24 so. 2d 879 (1946).

[61] An Act for the Final Judgment of Land Titles in the State of Louisiana and Territory of Missouri, Chap. 102, 3 Stat. 121-123 (1814).

[62] An Act Enabling the Claimants to Land Within the Limits of the State of Missouri and Territory of Arkansas to Institute Proceedings to Try the Validity of Their Claims, Chap. 173, 4 Stat. 52 (1824).

[63] An Act to Continue in Force, for a Limited Time, and to Amend an Act Entitled “An Act to Enable Claimants to Land Within the Limits of the State of Missouri and Territory of Arkansas to Institute Proceedings to Try the Vali­dity of Their Claims, Chap. 150, 4 stat. 298 (1828).

[64] An Act for the Final Adjustment of Private Land Claims in Missouri, Chap. 180, 4 Stat. 565 (1832).

[65] 6 American State Papers, Public Lands 703—901 (1860); 7 American State Papers, Public Lands, 773—907 (1860); and 8 American State Papers, Public Lands, 20—243, 789—871 (1861).

[66]An Act Confirming Claims to Land in the State of Missouri and For Other Purposes, Chap. 361, 5 Stat. 126 (1836) .

[67] An Act to Confirm Certain Land Claims in the State of Missouri, Chap. 177, 12 Stat. 866 (1860).

[68] An Act for the Final Adjustment of Claims to Land in the State of Louisiana, Chap. 17, 4 Stat. 749-750 (1835) .

[69] An Act Confirming Certain Land Claims in Louis­iana, Chap. 50, 5 Stat. 491 (1842).

[70] An Act to Provide for the Adjustment of Land Claims Within the states of Missouri, Arkansas and Louisiana, and in Those Parts of the states of Mississippi and Alabama South of the Thirty-First Degree of North Latitude Between the Mississippi and Perdido Rivers, Chap. 95, 5 Stat. 676 (1844).

[71] An Act for the Final Adjustment of Private Land Claims in the States of Florida, Louisiana, and Missouri, and For Other Purposes, Chap. 188, 12 Stat. 85 (1860).

[72] An Act to Quiet Title and Possession With Respect to Certain Unconfirmed and Located Private Land Claims in the State of Louisiana, Chap. 213, 29 Stat. 517-518 (1897).

[73] An Act Confirming the Claim of Augustin Dominique Tureaud for the Church of St. Jacquez to Certain Lands in the State of Louisiana, Parish of St. James, Said Claim Being Listed as No. 392, Chap. 377, 56 Stat. Pt. 2, 1177 (1942) .         

[74] 3 Miller, Treaties and Other International Acts of the United States of America, 3-18 (1933). An account of each confirmed and unconfirmed Spanish grant in Florida is contained in a five volume study prepared by the Histori­cal Records Survey, Division of Community Service Programs, Work Projects Administration entitled Spanish Land Grants in Florida (1941).

[75] From the date of the Louisiana Purchase in 1803, the territory south of the 31° latitude between the Missis­sippi and Perdido Rivers, which was known as West Florida, was claimed by both the United States and Spain. The United States contended that West Florida, which at one time had been a part of Louisiana, had been ceded to France. In 1800 and therefore, it passed to it under the Louisiana Purchase. Spain, on the other hand, contended that the cession of 1800 merely re-ceded Louisiana to France and did not cover West Florida. In 1810 a revolution broke out in the western portion of West Florida and the United States annexed the area west of the Pearl River to Louisiana. On May 14, 1812, the portion of West Florida lying between the Pearl and Perdido Rivers and south of 31° latitude was seized by the United States and annexed to the territory of Mississippi [An Act to Enlarge the Boundaries of the Mississippi Territory, Chap. 84, 2 Stat. 734 (1812)]. The question over the validity of the United States' juris­diction to the area west of the Perdido River and south of 31° latitude was settled by the Treaty of February 22, 1819. The Territory of Alabama was formed from the eastern portion of Mississippi on March 3, 1817 [An Act to Estab­lish a Separate Territorial Government for the Eastern Part of the Mississippi Territory, Chap. 59, 3 Stat. 371 (1817)]. On April 25, 1814 Congress passed an act for the purpose of ascertaining the validity of private land claims located in the area south of 31° latitude between the Mississippi and Perdido Rivers. The area was divided into two districts -east and west of the Pearl River and a commissioner was appointed for each district to examine and pass upon such claims. The claims were to be presented to the commissioner within six months and all claims not timely filed were not to be recognized or confirmed. Each commissioner was to report his findings on each claim to Congress for its final determination. [An Act for Ascertaining the Titles and Claims to Land in That Part of Louisiana Which Lies  East of the River Mississippi and the Island of New Orleans, Chap. 67, 2 Stat. 713 (1812)]. The Act of April 18, 1814 extended their term to September 1, 1814 and required them to report their findings by November 1, 1814 [An Act supplemental to an act entitled “An Act for Ascertaining the Titles and Claims to Land in That Part of Louisiana which Lies East of the River Mississippi and Island of New Orleans, Chap. 85, 3 Stat. 137 (1814)]. The Commissioner for the area east of the Pearl, William Crawford, in his report dated October 20, 1814, reported there were 67 claims in his district founded on complete grants, 88 British grants sold under the provisions of the Treaty of September 3, 1783, 174 based on actual settlement. James O. Cosby, commissioner of the area west of the Pearl, reported 432 complete grants, 320 claims based on orders of survey, 242 invalid grants, 30 miscellaneous grants, 1137 claims based on settlement and cultivation and 682 claims based on purchases. [3 American State Papers, Public Lands 6-76 (1834)]. The Act of March 3, 1819 confirmed all claims founded on complete grants. All British grants which had been sold and conveyed under the Treaty of 1783, and claims based on settlement and cultivation [An Act for Adjusting the Claims to Land and Establishing Land Offices In the District East of the Is­land of New Orleans, Chap. 100, 3 Stat. 528 (1819)]. The Acts of May 26, 1824 and May 4, 1826 and May 24, 1828 afforded the inhabitants of the southern portion of Mississippi additional 6pportunities to secure the recognition of their claims [An Act Supplementary to the Several Acts Providing for Ascertaining and Adjusting the Titles and Claims to Land in the St. Helena and Jackson Courthouse Land Districts, Chap. 175, 4 Stat. 59 (1824); An Act Sup­plementary to the Several Acts for Ascertaining Titles and Claims in the St. Helena and Jackson Courthouse Land Dis­tricts, Chap. 35, 4 Stat. 159 (1826); and An Act Supple­mentary to the Several Acts Providing for the Adjustment of Land Claims in the State of Mississippi, Chap. 93, 4 Stat. 299 (1828)]. Such claims were to be presented to the Register and Receiver who reported on such grants on January 15, 1829 [5 American State Papers, Public Lands, 782-787 (1860)]. The Act of May 28, 1830 confirmed such claims [An Act to Confirm Certain Claims to Lands in the District of Jackson Courthouse, In the State of Mississippi, Chap. 146, 4 Stat. 408 (1830)]. The claims located in Alabama and investigated and approved under the Act of March 3, 1819 were confirmed on May 8, 1822 [An Act Confirming Claims to Lots in the Town of Mobile and to Land in the Former Province of West Florida Which Claims Have Been Favorably Reported on by the Commissioners Appointed by the United States, Chap. 122, 3 Stat. 699 (1822)]. A number of claims were subsequently investigated by the Register and Receiver of St. Stephens under the Act of March 3, 1827 and confirmed on March 2, 1829 [An Act Supplemental to Several Acts Providing for the Adjustment of Land Claims in the State of Alabama, Chap. 78, 4 Stat. 239 (1827); and An (cont'd.) Act Confirming the Reports of the Register and Receiver of the Land Office for the District of St. Stephens, in the State of Alabama, and For Other Purposes, Chap. 40, 4 Stat. 358 (1829)].

[76] An Act for Ascertaining Claims and Titles to Land Within the Territory of Florida, Chap. 129, 3 Stat. 709 (1822).

[77] Joseph M. White, one of the commissioners, col­lected the pertinent laws which were published in 5 American State Papers, Public Lands, 631-774 (1834), pursuant to a Congressional Resolution. The work was received so well by both the bench and bar that it was expanded and privately published in 1839 under the title A New Collection of Laws, Charters and Local Ordinances of the Governments of Great Britain, France and Spain. Based on the reports of the Register and Receiver of Louisiana, White estimated that the United States had confirmed titles valued at more than ten million dollars, which were not entitled to confirmation. White's work soon became the standard American work on the subject and has been cited extensively by both State and Federal Courts.

[78] An Act Amending and Supplementing the “Act for Ascertaining Claims and Titles to Land in the Territory of Florida,” and to Provide for the Survey and Disposal of the Public Lands in Florida, Chap. 29, 3 Stat. 754 (1823).

[79] An Act to Extend the Time Limit for the Settle­ment of Private Land Claims in the Territory of Florida, Chap. 25, 4 Stat. 6-7 (1824).

[80] 4 American State Papers, Public Lands, 83—117 (1834).

[81] 4 American State Papers, Public Lands, 118—157 (1834).

[82] It appears that the board, expecting an exten­sion, continued examining claims after the expiration of its term. The claims approved during this period were sub­sequently confirmed by Congress. An Act to Confirm the Reports of the Commissioners for  Ascertaining Claims and Titles in West Florida, and For Other Purposes, Chap. 29, 4 Stat. 156—157 (1826).

[83] An Act to Extend the Time for the Settlement of Private Land Claims in the Territory of Florida, to Provide for the Preservation of the Public Archives in said Terri­tory, and For The Relief of John Johnson, Chap. 83, 4 Stat. 125-127 (1825).

[84] 4 American State Papers, Public Lands, 316 (1834).  

[85] Ibid, 317-321.

[86] An Act to Confirm the Reports of the Commissioners for Ascertaining Claims and Titles to Lands in West Florida, and for Other Purposes, Chap. 29, 4 Stat. 156-157 (1826).

[87] An Act Supplementary to the Several Acts Pro­viding for the Settlement and Confirmation of Private Land Claims in Florida, Chap. 70, 4 Stat. 284 (1828).

[88] 3 American State Papers, Public Lands, 764, 892 (1834) .

[89] Ibid., 863.

[90] Ibid., 863.

[91] 4 American State Papers, Public Lands, 157-158 (1834) .

[92] These claims were broken down into the follow­ing categories: (1) claims over 1,000 acres -757; (2) claims under 1,000 acres -132; (3) claims under the Donation Act -43; and (4) British grants -38. The type of the other 34 claims is not mentioned.

[93] An Act to Extend the Time for Settlement of Pri­vate Land Claims in the Territory of Florida, to Provide for the Preservation of the Public Archives in Said Terri­tory, Chap. 83, 4 Stat. 125-127 (1825) .

[94] 4 American State Papers, Public Lands, 275-277; 400-501 (1834).

[95] Ibid. 507.

[96] An Act to Provide for the Confirmation Settlement of Private Land Claims in East Florida, Other Purposes, Chap. 9, 4 Stat. 202-204 (1827).

[97] 5 American State Papers, Public Lands, 402-430 (1860).

[98] An Act Supplementary to the Several Acts Providing for the Settlement and Confirmation of Private Land Claims in Florida, Chap. 70, 4 Stat. 284 (1828) .

[99] A number of these cases were appealed to the United States Supreme Court. In United States v. Arredondo, 6 Pet. 131 U.S.} 691 (1832), the Supreme Court established the policy that the United States scrupulously would respect its treaty obligations even at the risk of confirming a possibly fraudulent claim. It laid down the broad principle that if a grant was made by a public official purporting to be in accordance with the laws of the sovereign power for which he was acting, there was a legal presumption that it was a valid official act, and that the burden rested on the United States to prove lack of authority. This presumption was continued under the Act of March 3, 1851 [An Act to Ascertain and Settle the Private Land Claims in the State of California, Chap. 41, 9 Stat. 631 (1851)] in connection with the examination of private land claims in California. However, it was expressly rejected under the Act of March 3, 1891 (Court of Private Land Claims Act, Chap. 539, 26 Stat. 854((18;91)], which provided that no Spanish or Mexican grant should be confirmed unless it was shown that title had been lawfully and regularly derived from the prior sovereign. The Supreme Court, in Hayes v. United States, 170 U.S. 637 (1898) , ,held that under the 1891 act the claimant must not only show that the grant was regular in its form, but that the granting  officials were vested with authority to make the concession .

[100] 6 American State Papers, Public Lands, 55-121 (1860) .

[101] An Act to Provide for the Final Settlement of Land Claims in Florida, Chap. 105, 4 Stat. 405 (1830)

[102] 8 American State Papers, Public Lands, 247-260 (1863) .

[103] The Treaty of Velasco, May 14, 1836; a copy is contained in Wallace and Vigness, Documents of Texas His­tory, 117 (1963).

[104] Constitution of the Republic of Texas, adopted March 17, 1836, General Provisions, Sec. 10; a copy is con­tained In 1 Gammel, Laws of Texas, 1069-1085 (1898). This section negated a number of grants obtained by speculators in violation of the general colonization laws of Mexico. Grants owned by persons who left Texas to avoid participation in the revolution were also forfeited.

[105] Article XIV of the Ordinance adopted by the Consultation held at San Felipe de Austin on November 13, 1835, shortly after the outbreak of hostilities with Mexico, ordered all commissioners, empresarios, surveyors and per­sons concerned with the location of lands to cease operations pending the revolution, and directed the land commissioners in the colonies and towns of Texas to deliver all books, papers and documents in their offices to the persons “ap­pointed to receive them.” [1 Gammel, Laws of Texas, 538-544 (1898)]. The Act of December 22, 1836 appointed the Commissioner of the General Land Office as the custodian of all records appertaining to the lands of the republic in the care or possession of empresarios, political chiefs, alcaldes, commissioners and other persons. [1 Gammel, Laws of Texas, 216-224 (1898)]. The Act of June 21, 1837 declared that all empresarios' contracts had terminated as of March 2, 1836, and directed all empresarios, commissioners, political chiefs, alcaldes and other persons to deliver all records in their possession to the Commissioner of the General Land Office. [1 Gammel, Laws of Texas, 1323-1326 (1898); Rose v. Governor of Texas, 24 Tex. 496 (1859)]. Since many of the local officials considered such papers to be their personal property, the Texas Legislature passed an Act on December 14, 1837, declaring “any titles and documents relating to lands to be archives, and directed the holders thereof to deposit them in the General Land Office within sixty days, and failure to do so would be a ‘high misdemeanor’ subject to a fine of not less than one thousand dollars nor more than five thousand dollars and for­feiture of all civil rights, including the right to own land, vote, and hold office.” By Act dated December 14, 1837, the empresarios were authorized to bring suit against the State for the premium land they were entitled to for settlers introduced before March 2, 1836 [1 Gammel, Laws of Texas, 1404 (1898)]. (1898); Rose v. Governor of Texas, 24 Tex. 496 (1859)]. Since many of the local officials considered such papers to be their personal property, the Texas Legislature passed an Act on December 14, 1837, declaring “any titles and documents relating to lands to be archives, and directed the holders thereof to deposit them in the General Land Office within sixty days, and failure to do so would be a ‘high misdemeanor' subject to a fine of not less than one thousand dollars nor more than five thousand dollars and forfeiture of all civil rights, including the right to own land, vote, and hold office.” By Act dated December 14, 1837, the empresarios were authorized to bring suit against the state for the premium land they were entitled to for settlers introduced before March 2, 1836 [1 Gammel, Laws of Texas, 1404(1898)].

 

[106] This Act stated “ . . . whereas, many persons have received titles under the colonization laws, as colonists, from the different commissioners of the county; and, whereas, many conditions were, by the laws attached, to said titles—that all such conditions be, and are hereby cancelled, and the titles to all such lands be, and are hereby ratified and confirmed . . . [1 Gammel, Laws of Texas, 1276—1284 (1898) ].

[107] Forty-one different contracts with individuals and companies were authorized by Mexico; however, only two empresarios (Stephen F. Austin and Martin de Leon) settled their full quotas of families. Fourteen contracts were partially fulfilled. The balance were either cancelled or expired without a single grant having been issued. The following number of grants were made in the following colonies:

 

 

Colony

Number of Grants

1

Austin’s Original Colony

297

2

Austin’s Second Colony

460

3

Austin’s Little Colony

59

4

Austin’s Coast Colony

175

5

Austin and Williams’ Colony

152

6

Robertson’s Colony

279

7

Hilain’s Colony

53

8

Burnet’s Colony

251

9

Vehlein’s First and Second Colonies

358

10

Zavala’s Colony

464

11

De Leon’s Colony

162

12

Power’s and Hewetson’s Colony

174

13

McMullen’s and McGlain’s Colony

85

14

DeWitt’s Colony

189

15

Grant and Beale’s Colony

9

 

 

 

Under the Colonization Law of March 24, 1825, Mexicans were authorized to purchase up to 11 leagues from the government. One hundred and seventy-six grants were made under this Act. Sixty-one grants were made under the Act of April 28, 1832, which awarded land to persons who had rendered services in the Revolution against Spain. Twenty-one special grants were made by Commissioner Miguel Arcenuga in Austin's Colonies. Seventy-eight special grants were made) in the border or coast leagues under the Resolutions of April and August, 1828. Three hundred and thirty-six grants were made under the Colonization Law of 1834, which author­ized the sale of land on the eastern frontier of Texas. Virginia H. Taylor, The Spanish Archives of the General Land Office, 41-63 (1955).

[108] Constitution of the Republic of Texas, adopted March 7, 1836, General Provisions, Sec. 10; 1 Gammel, Laws of Texas, 1069-1085 (1898) .              

[109] 1 Gammel, Laws of Texas, 1193—1194 (1898).

[110] Annual Report of the Commissioner of the Gen­eral Land Office, 3-16 (1844).

[111] Annual Report of the Commissioner of the Gen­eral Land Office, 5 (1849).

[112] Gammel, Laws of Texas, 582-587 (1898).

[113] Since Texas made no claim to the area between March 2 and December 19, 1836, and only a de facto claim between December 19, 1836, and February 2, 1848, the ques­tion has arisen as to whether the Treaty of Guadalupe Hidal­go protected Mexican grants made after March 2, 1836. In answer to this question, the courts have held that December 19, 1836, were within the protection of the treaty. There­fore, the validity of land titles in that area should be determined as they existed on December 19, 1836. Texas v. Gallardo, 106 Tex. 274, 166 S.W. 369 (1914); Texas v. Balli, 144 Tex. 195, 190 S.W. 2d 71 (1944); Amaya v. Standard Oil & Gas Company, 62 F. Supp. 181 (1947).

[114] Ibid., 798.

[115] Report of the Bourland-Miller Commission (Mss., Records of the General Land Office, Austin, Texas).

[116] 3 Gammel, Laws of Texas, 941—949 (1898).

[117] 3 Gammel, Laws of Texas, 1533—1538 (1898).

[118] 3 Gammel, Laws of Texas, 1362 (1898; and 4 Gammel, Laws of Texas, 42, 53, 1027 (1898).

[119] 4 Gammel, Laws of Texas, 1471 (1898).

[120] 6 Gammel, Laws of Texas, 375 (1898).

[121] This provision was carried over into the Con­stitution of 1876 [Vernon's Ann. Tex. Const. Art. 13, Sec. 8 (1955)1, which extended the period for filing surveys and field notes until January 1, 1880 under penalty of having the claim forever barred. Since this provision required the land to be surveyed as a condition of ownership, the Texas Supreme Court; in the Padre Island case [State v. Balli, 144 Tex. 195, 190 S.W. 2d 71 (1944)], held the provision to be invalid on the ground that it violated the Treaty of Guadalupe Hidalgo.

[122] Vernon's Ann. Tex. Const. Art. 13, Sec. 2 (1955).

[123] Texas Mexican Railway Company v. Locke, Tex. 370, 12 S.W.80 (1889). There is no question over the state's right to regulate what information may be filed in the General Land Office and county records, or which tracts may be depicted on the official state land maps; however, it has no right to prevent a person from establishing his ownership to property in the courts.

[124] Downing v. Diaz, 80 Tex. 436, 16 S.W. 49 (1891) and Sullivan v. Solis, 114 S.W. 456 (Tex. Civ. App. 1908).

[125] By Act of April 24, 1871 [6 Gammel, Laws of Texas, 958 (1898)], the Texas Legislature provided for the obtaining and translating of the several Acts or charters founding the towns of Reynosa, Camargo, Mier, and Guerrero, in the Republic of Mexico, and of Laredo in Texas.;; It has been held that the confirmation of a single tract covered by Escandon's General Visit; operated automatically to con­firm all grants in the jurisdiction.” Downing v. Diaz, 80 Tex. 436, 18 S.W. 49 (1891). For a scholarly study of the grants in the lower Rio Grande Valley, see Scott, Historical Heritage of the Lower Rio Grande (1966). See also Hill, “Spanish and Mexican Land Grants between the Nueces and Rio Grande,” 5 South Texas Law Journal, 47-59 (1960).

[126] 11 Gammel, Laws of Texas, 1181 (1902).

[127] 5 Miller, Treaties and Other International Acts of the United States of America, 207-236 (1937). This article, in effect, is comparable to the protection afforded to the residents of the Louisiana Purchase and the Florida Acquisition.

[128] Cong . Globe, 30th Cong., 2nd Sess., 237-254 (1849) .

[129] H. R.. Exec. Doc. No. 17, 31st Cong., 1st Sess., 119-182 (1850).

[130]

[131]

[132] H. R. Exec. Doc. No. 17, 31st Cong., 1st Sess., 118 (1850) .

[133] H.R. Exec. Doc. No. 117, 31st Cong., 1st Sess., 112-115 (1850).  

[134]

[135] It should be remembered that a majority of the claims in Louisiana, Florida, Mississippi, Alabama, Arkan­sas and Michigan did not exceed 640 acres; claims in Indiana and Illinois usually covered only 400 acres; 'Missouri claims generally covered up to 800 arpents (680 acres).” Thus, the California claims for 11 leagues, or nearly 49,000 acres, astounded many Congressmen familiar with the adjudication of private land claims in the older areas.

[136] This view was rejected in United States v. City of Santa Fe, 165 U.S. 675 (1897).

[137] Cong. Globe, 31st Cong., 1st Sess., 2045-2047 (1850); Cong. Globe, 31st Cong., 2nd Sess., 349--351 (1851).

[138]An Act to Ascertain and Settle the Private Land Claims in the State of California, Chap. 41, 9 Stat. 631­634 (1851). This act has created more controversy among scholars than any other piece of legislation pertaining to the adjudication of private land claims. A number of writers have condemned it. A compilation of the terms used by them describe the act as “the devil's instrument” which has caused “S0 much public hurt” by permitting the government to “despoil by legal means” the claimants who “lost nearly all their possessions” as a result of the passage of such an “incalculably stupid” act. Julian Dana called the act “a resume of the imbecilic incompetence that bred a harvest of murder, disease, hatred, pillage, and despair.” [Dana, Sutter of California, 376-377 (1934)]. Elisha O. Crosby, who represented more than a hundred claimants before the commission, stated that the squatters so influenced the board in rendering its decisions that the results were virtually “confiscation.” [Barker, Memoirs of Elisha Oscar Crosby, 70 (1945)]. The principal complaint of the opponents of the act was that it forced claim holders to take the initiative and cast the burden of successfully proving their title before the commission, the district court and the supreme court, and if they won, to pay the cost of surveying and defending the survey before the Surveyor General's office. They contended that this long and involved process caused many claimants to lose their land to lawyers, specu­lators and squatters. They asserted that the act violated the repeated assurances given to the Californians by the Polk administration and contradicted the clear-cut pro­visions of the Treaty of Guadalupe Hidalgo. They were especially critical of the provisions which required the filing of claims under penalty of forfeiture. Attention was called to the fact that this would include perfect claims which were to be inviolably respected under the treaty pro­visions and international law. However; the Supreme Court, in Boteller v. Dominguez, 130 U.S. 238 (1888), upheld the constitutionality of this provision. For an interesting criticism of the case, see Shuck, History of the Bench and Bar of California, 57-71 (1901). Had the tribunal strictly construed the validity of the claims and confirmed only those granted in accordance with the letter of the Spanish and Mexican law and supported by the impeccable ar­chival evidence, the charges of confiscation might have been justified. However, both the commission and courts were not necessarily unfriendly toward the claimants, and the evidence does not support the tradition that the Cali­fornia “Dons” lost their lands as a result of the high cost incurred in connection with the confirmation of their claims. As a matter of fact, nearly half of the claims presented to the commission had their inception after 1840, and had been made in anticipation of the transfer of sovereignty to the United States, and about a third of the grants had passed into the hands of Americans before the act was passed. Studies of the individual ranchos show that other factors, particularly droughts, litigation over par­titioning the grants among heirs, riotous living, taxes, and inefficiency in business dealings caused most of the old California families to lose their heritage. There is some justification to the criticism that the board failed to hold hearings at sites convenient to the claimants as contemplated by the act. The board, except for one short trip to Los Angeles, continuously sat at San Francisco. This caused the claimant the added expense of the trip for himself and his witnesses. The conspicuous absence of adequate safeguards to protect the grant owners from en­croachment by squatters was one of the principal deficiencies of the act. The government also raised petty technicalities in mostcases which should not have been raised once they had been decided against in the test cases. The government was also guilty of appealing many cases as a mere formality. For a fuller account of this controversy, see Gates, “Adjudication of Spanish-Mexican Land Claims in California,” 3 The Huntington Library Quarterly 213-223 (1958). The other side of the controversy was the despair which had arisen amongst the great hoard of land seekers who had arrived in California after 1848, when they discovered that most of the desirable land was held under claims of debata­ble validity. They felt that, instead of agreeing to in­violably respect these claims, the government should have expropriated all titled but undeveloped land and compensated the owners for the taking. Since Spanish and Mexican grants were not fenced, settlers who were familiar with the preemption and occupancy laws of the eastern states squatted upon and improved the choicest portions of many grants. This created intense friction between the two factions. Instead of easing matters, the act merely created contempt for law amongthe landless element. This was especially true following the confirmation by the commission of a number of questionable claims. For a fuller discussion of this problem, see Gates, “California's Embattled Settlers, 41 California Historical Quarterly 99-139 (1962).

[139] United States v. Ritchie, 17 How. (58 U.S.) 525 (1854).

[140] An Act to Continue in Force the Act Entitled “An Act to Ascertain and Settle the Private Land Claims in the State of California,” and For Other Purposes, Chap. 2, 10 Stat. 265 (1854); An Act to Continue in Force for a Limited Time, the Provisions of the Act of Congress of third March, Eighteen Hundred and Fifty-one, and the Second Section of its Supplement of eighteen January, Eighteen Hundred and Fifty-four, so as to Enable the Board of Land Commissioners in California to Close Their Adjudications of Private Land Titles in the State, and For Other Purposes, Chap. 25, 10 Stat. 603 (1855).

[141] Ogden Hoffman, in his Report of Land Cases (1862), lists 813 cases; however, J. N. Bowman's Index of California Land Claims indicates there actually were 848 claims. How­ever, this does not mean there were that many grants for in many instances more than one claim was filed for a single grant. Of the 813 claims mentioned by Hoffman, the board confirmed 521, rejected 273, and discontinued 19. The decisions of the board on 549 claims were appealed to the district court, and 99 of these subsequently were appealed to the United States Supreme Court. Of the 264 claims which were finally settled by the board, 104 were confirmed and 141 were rejected. The district court con­firmed 510 of the claims appealed to it and rejected only 39. The district court sustained the board in 446 cases. It affirmed the board's decisions confirming 412 claims and rejected 34 others. It overruled the board on 103 claims; of these, 5 were for confirmed claims and 98 rejected claims. The claimants appealed 132 of the decisions to the district court and secured 98 reversals. The government obtained the reversal of only 5 out of the 417 claims it appealed to the district court. Of the cases appealed to the Supreme Court, 35 were confirmed and 28 rejected. The Supreme Court sustained the district court's decision in 28 claims (24 confirmations and 4 rejections), and overruled it in 25 others (24 confirmations and 1 rejection). These figures are taken from the Table of Land Cases published as an appendix to Hoffman, Report of Land Claims (1862).

[142]Hibbard, A History of the Public Land Policies, 29 (1939).

[143] Morrow, Spanish and Mexican Land Grants, 14­15 (1923).

[144] 6 Bancroft, History of California, 543 (1888). The land grant problem has fascinated nearly every scholar who has written on California history. Therefore, it is no surprise to find that there is no drought of material on the subject. Most historians, with the exception of Professor Paul W. Gates, have condemned the Act of March 3, 1851. However, Gates has pointed out that the United States, in California, acted in consonance with the half a century of experience which it had in dealing with similar problems under the Louisiana Purchase and the Florida Purchase. See Cleland, The Cattle on a Thousand Hills, 33-50 (1951); Robbins, Land in California, 91-109 (1948); Caughey, California, 306-318 (1953 (1953); Gates, California Ranchos & Farms, 3-16 (1967).