Spanish and Mexican Procedures for the Granting of Land

“Spanish and Mexican Procedures for Granting Land” is the title of Chapter Two, Book I Private Land Claims in the Southwest, submitted by J. J. Bowden in 1969 as partial fulfillment of the requirements for the degree of Master of Laws in Oil and Gas at Southern Methodist University.

Spanish and Mexican Procedures for the Granting of Land

by J. J. Bowden

The Spanish Period and Mexican Period:

The Spanish Period

Prior to the expansion of Spanish jurisdiction to the frontier provinces of New Spain, the nomadicand seden­tary Indians exercised dominion over much of the area. Each tribe’s claim was to a vaguely defined area which generally was recognized by its neighbors. However, upon their arrival, the Spaniards paid little attention to these land claims. The sedentary Indians, who were friendly and susceptible to being Christianized were gathered into missions built near the sites of their ancient settlements, but their rights to real property were limited to as much land as they needed for habitation, tillage, and pasturage.[1] Each mission center was designed to be a self-sufficient unit, and, except for their missionaries and a few soldiers stationed there to maintain discipline, whites were forbidden to live in or near these settlements. Each mission had its Indian village, church and monastery, adjoining well-tilled fields, and extensive pastures, where the stock was kept. It is truly remarkable that Spain was able to take possession and spread her culture, religion, law, and language over more than half of the two American continents with a mere hand­ful of men. Much of the task of extending the frontier fell upon the missionaries. They converted, civilized and ex­ploited a large portion of the sedentary Indians of New Spain. There were twenty-one missions in California, at least that many in Texas and Florida, and twice that number in New Mexico.[2] The missions were intendedto be temporary, and it was contemplated that once the Indians were Chris­tianized and trained in the arts of civilized life, they would assume the position and character of citizens. Thus, the mission settlements were designed to evolve into Pueblos, with civil and military officers, modeled upon the Spanish administration.  However, in many cases progress was slow. In an effort to settle the matter, the Spanish Cortes passed a decree on September 13, 1813[3] requiring the secularization of missions which had been inexistence for at least tenyears. Under this law, the missions were transformed into pueblos, the mission lands were thrown open for private propriation, the neophytes governed by town councils and civil authorities. The last section of the law states:

 The religious missionaries shall immediately cease from the government and the administration of the property of said Indians, it being left to the care and election of these Indians to appoint among themselves, by means of their ayuntamientos, and with  the intervention of the governor, persons to their satisfaction, capable of administering  it, distributing the land and reducing them to private property, agreeably to the decree of the 4th of January, 1813, respecting the reduction of vacant and other land to private dominions.

The secularization of the missions was not completed until about 1834. The plan for the establishment of Indian pueblos is set forth inthe Recopilación de Leyes de los Reynos de las Indias,[4] and provides:

 The sites on which pueblos and reductions must be formed shall have convenience of water, land, and wood, entrance and departure, and lands for culti­vation, and an exidos of a league in length, where the Indians can have their cattle without their mixing with those of the Spaniards.

The exidos were to be located 600 varas in each direction from the last house of the settlement.[5] However, the custom in New Mexico was to fix the pueblo boundaries at one league in each of the cardinal directions from the door of the church or cross in the cemetery.[6] This should not be interpreted as meaning that pueblo grants were limited to four square leagues, for it is clear that the Viceroy and President of the Royal Audiencia had unlimited power to grant land to Indians.[7] The Royal Cedula of June 4, 1687[8] delegated authority to the Governors to make pueblo grants, which were communal in nature and vested title in the pueblo.[9]

Spain’s law also provided for the establishment of Spanish or Civil Towns. Civil Towns[10] could be founded by contractors, individuals and the government. A con­tractor could receive a grant from the governor of four square leagues by settling at least thirty Spanish families at a site at least five leagues from the closest settlement.[11]  If less than thirty families, but not less than ten, were settled, the grant was to be proportionately reduced. Such settlements were entitled to an Ayuntamiento and a degree of self-government. Each settler was required to build a house and own ten breeding cows, four oxen, and additional small stock. Upon entering the colony he was to receive a house, lot and, depending upon his circumstances, either a peonia[12]or caballeria.[13] A plaza was to be set aside which was to be not less than 200 by 300 feet nor greater than 532 feet by 800 feet. After setting aside lands for commons and a tract of communal or rent land to maintain the Ayuntamiento, the balance of the grant was to be divided into four parts. One part was awarded to the contractor, and the remainder was to be divided[14] amongst the settlers by lots. Ten or more families could associate together in the formation of a civil pueblo and receive a grant from the governor of one and a third square leagues of land.[15] They were accorded communal municipal rights and granted the privilege of electing their Alcalde. The governor of the province was authorized to establish new settlements, which, de­pending on their size, were to be designated a city, town, or village.[16]Land was to be set aside for house lots, commons, and municipal land. The balance of the land was to be divided into suertes, or farm tracts, with each colonist being allotted a house lot and a suerte. The unallotted land was reserved for future settlers.[17] Since there was no general law fixing the quantity of land to be granted to towns formed by the government, the governor had wide discretion in designating the size[18] of such grants.

Any town with a population of one thousand in­habitants was entitled to an Ayuntamiento or town council[19]  which could allot land located within the town grant. If the town did not have an Ayuntamiento, the vacant land within the grant could be granted by its Alcalde.[20]

A line of presidios or garrisons was established along the northern frontier of New Spain from San Agustin, Florida, to San Francisco, California, to protect the mis­sions, pueblos, and Spanish settlements from hostile In­dians and foreign intrusions. Settlements promptly grew up around these presidios. On August 17, 1773, Viceroy Antonio Maria Bucareli, in his instructions to Governor Fernando Rivera, granted presidial commanders the power to “designate common lands, and also to distribute lands in private to such Indians as may most dedicate themselves to agriculture and the breeding of cattle… .[21] The same privilege was granted to Spanish colonists. These in­structions were somewhat general, and could apply equally well to all kinds of settlements, whether military, civil or ecclesiastical. The first explicit regulations for the formation of presidial towns were given on October 22, 1791 by Commandante-General Pedro de Nava. [22]  He authorized cap­tains of presidios to grant and distribute house lots and fields to soldiers and citizens. These lots were to be granted within the extent of four common leagues of land belonging to the presidio. The four leagues were to be “measured from the center of the plaza of the Presidio, two to each wind … [23]

In addition to grants to settlements, the Spanish government made grants to colonists, as a reward to those who had rendered services to the King, and for the purpose of securing internal improvements and obtaining means to supply the necessities of the crown. The monarchs of Spain regarded all lands undisposed of in New Spain as re­siding in the person of the sovereign. It could be ac­quired only by a grant directly from the King or from per­sons to whom his power had been specially delegated, and then only in the form and manner prescribed by law. The vast transoceanic possessions of Spain were governed by a set of laws which had been issued from time to time and under different circumstances. All these laws which had been promulgated prior to 1680 were codified into the Recopilación de Leyes de los Reynos de las Indias.[24] This work, together with the royal ordinances and cedulas issued thereafter, constituted the Spanish law in force in Mexico until 1821 when it gained its independence.

At first, land concessions were made directly by the king or by special emissaries acting in his behalf. Hernando Cortez was the first person to exercise this power in New Spain. In the latter part of the sixteenth century, the Spanish government learned that many colonists were en­countering difficulty in securing title to the lands which they were occupying and using.By a Royal Cedula, [25]Philip II directed his viceroys to investigate and confirm all equitable land claims within their respective dominions.

On the frontier provinces, the right to grant land was vested in the governor, with the advice of the king’s fiscal ministers and also by the lieutenant general, where he might be stationed.[26] There appears to have been no restraint imposed upon the exercise of this power prior to1735. The Spanish kings jealously guarded their preroga­tive over the disposition of the royal domain; and, in order to curb the abuses caused by the issuance of exceed­ingly large concessions to the friends and favorites of the colonial authorities, Philip V issued a cedula on November 24, 1735,[27] in which the authority for a governor or lieu­tenant general to grant land was withdrawn, and applicants were required to apply to the king for new concessions, and all previous grantees had to obtain his confirmation of their titles. This decree, however, was found to be a deterrent to the development of the frontiers as a result of the expense incident to such requirements. Therefore, authority to grant land in the frontier provinces was in­vested in the governor, with the advice of the king’s fiscal minister and the lieutenant general, under the In­structions of October 15, 1754.[28] These instructions also provided that persons in possession of land which had been sold or donated prior to 1700 were not to be disturbed even though their claims had not been confirmed by the king. However, persons who had acquired inchoate grants between 1700 and 1754 were to have their claims ratified by the proper authority.

The establishment of the Provincias Internas under the cedula of August 22, 1776,[29] had little effect on the northern provinces. It merely placed Nueva Viscaya, Coahuila, Texas, New Mexico, Sinaloa, Sonora, and the Californias under the Commandante General instead of the Viceroy. Thus, the Provincias Internas, in effect, became a separate viceroyalty. However, the law of October 15, 1754 continued in force in the provinces. On December 4, 1786, the Provin­cias Internas was reorganized and the Ordinance of Inten­dants[30] was issued. The title of the chief executive officer of each of the provinces was changed from governor to inten­dant. Under Article 81 of the Ordinance of Intendants, intendants were empowered to make sales of the crown lands within their jurisdiction, subject to the approval of the Superior Board of the Treasury. When the Provincias Inter­nas was again reorganized in 1792, the title of the chief executive officer of the provinces was changed back to governor; however, he continued to exercise his traditional powers in connection with the issuance of land grants. The Ordinance of Intendants was modified by the cedula of March 23, 1798,[31] which declared that if the value of land was less than two pesos, it would not be necessary to refer the transaction to the Superior Board of the Treasury for approval. This modification was necessary since the expense ofsecuring such approval was often greater than the valueof the land and persons of little means frequently were prevented from purchasing land and the development of the country was once again being retarded. Also a colonist who lived upon lands which had been designated for his use, could, after occupying it for four years, apply to the Audiencia or the governor for the confirmation of his claims.[32] Regulations were promulgated on July 17, 1799,[33] providing three methods by which a person could obtain land:

 a)      Gratuitous conditional grants which could be perfected by the grantee’s clearing and building upon land that had been allocated to him within three years.

b)      The purchase of land at public auction.

c)      The perfection of claims by squatters by living on the land for ten years and paying a modest fee.

 Grants were also given in Florida to those who constructed saw mills[34] and cow pens. Numerous grants also were made by Spanish Officials throughout New Spain as rewards for patriotic and military service.[35]

In consequence of the abdication of Charles IV and Ferdinand VII in 1808, the armies of Napoleon attempted to maintain Joseph Bonaparte effectively on the Spanish throne. This caused a general uprising of the Spanish people in defense of their independence. The conduct of the war fell upon a Regency which was provided for by law. Yielding to the demands of the people, the Regency ‘turned the reins of government over to the Cortes, which, on March 12, 1812, created a constitutional monarchy for Spain with Ferdinand VII, as hereditary monarch. On January 4, 1813,[36] the Cortes redefined the land grant policy of Spain, stating:

 . . .that the conversion of public lands into private property is one of the measures which the welfare of the people, as well as the advancement. of agriculture and industry, ,most imperiously de­mands; and desiring at the same time, that this class of lands should serve as an aid to the public necessities, a reward to ‘the deserving defenders of the country, and a support to the citizens who are not proprietors, the general and extraordinary cortes do decree: al the uncultivated or public lands, and those of the corporation of cities, with the timber thereon withoutit, both in the peninsular and adjacent lands, as well as in the ultra marine provinces, except the commons necessary for the towns, shall be made private property.

This act set aside one-half of the royal domain to secure the payment of the national debt and the debts of the towns. These debts were to be retired with the proceeds from the sales of such lands. A portion of the land was also to be used to reward servicemen. The other half of the public domain was to be granted to landless applicants for cultivation purposes.

 Any landless citizen could petition the Ayunta­miento for a grant.[37] Likewise, any creditor, officer, or soldier having a claim against the government for the pay­ment of debts or for servicesrendered in either the war against France or in quelling the revolutionary uprisings in the Americas could petition a magistrate for land in lieu of the payment of such claim. Grants issued by magistrates had to be confirmed by the provincial deputation before they become final.[38] The Supreme Court in the Clarke case[39] held that there was nothing in the law of January 4, 1813, which restricted the power of the governors to make valid land grants.

The usual steps taken to secure a land grant under the Spanish system were as follows:

 1.  A petition or application, addressed to the proper officer, setting forth the circumstances of the applicant, his reasons for asking for the grant, and a description of the land requested. [40]

2.  An order entered or endorsed on the petition by the granting official referring the application to a local official, such as the alcalde in whose jurisdictionthe land was located, requiring him to investigate and report upon the merits of the request. Sometimes a short cut was taken and the grant was taken and the granting authority did not require a report but merely directed the local official to place the applicant in royal possession of the requested land, provided the rights of third persons would not be prejudiced, and thereby inferring the issuance of a grant.

3.  A report by the local official.

4. A grant by the granting official, together with an order directing the local official to place the grantee in royal possession of the grant.

5. An act of possession, wherein the local official designated the boundaries of the concession and performed the customary ceremony necessary to deliver juridical possession to the grantee.

The foregoing proceedings, which collectively were called the expediente, were required to be written on stamped paper, [41] attested by witnesses in the absence of a notary.[42] The expediente was returned to the granting official and deposited in the Archives.[43] A copy, called a testimonio, was given to the grantee for his protection.

When Ferdinand VII was released by the French following the Treaty of Valencia, he returned to Spain and reestablished the monarchy on March 22, 1814. He promptly dissolved the Cortes and, on August 22, 1814, repealed the Act of January 4, 1813.[44] In 1820 the constitutional regime was reestablished, and the distribution of vacant public lands was again ordered by the Cortes under a series of decrees dated November 8, 1820, June 29, 1821, and June 29, 1822.[45] However, the reform carne too late, for Mexico had already proclaimed its independence under the Plan of Iguala. The Treaty of Cordoba, which was signed on August 24, 1821, formally recognized Mexico’s independence.

The Mexican Period:

Mexico gained its independence without producing any radical change in the habits or attitudes of its people. Therefore, all Spanish land laws were continued in force until superseded by Mexican legislation.[46] Mexico’s first attemptto establish a government was the creation of the Provisional Council under the Plan of Iguala. The Council, in turn, appointeda regency with Augustin Iturbide as President and Commanderin Chief. Shortly thereafter, he became Emperor of Mexico and, on October 30, 1822, created the National Council.[47]

The basic land policy which Spain had so carefully developed fostering settlement and colonization of the public domain was favored by most Mexican officials. There­fore, a Colonization Law[48] was passed on January 4, 1823, which authorized the Emperor to enter into colonization contracts with empresarios for the introduction of at least two hundred families into Mexico. As consideration for such services, the empresario was to receive three haciendas and two labors for each two hundred families he settled, provided the maximum amount of land he could receive was nine haciendas and six labors. Each settler who was a farmer would receive a minimum of a labor, and each stock raiser was to be given at least a sitio of land.[49] This law also authorized an Ayuntamiento to grant land within its jurisdiction. [50]

Iturbide could not meet the prime requisite for staying in power in that he could not pay the army. Within a few weeks after his coronation, the generals began fretting. In February, 1823, a group of revolutionaries headed by Antonio Lopez de Santa Ana issued the Plan de Casa Mata which called for the abolition of the empire and the creation of a republic in its stead. A month later Iturbide was forced to abdicate, and a Constituent Congress was organized to draft a constitution for Mexico patterned after the United States Constitution.[51] The Constituent Congress, on April 8, 1823, held that Iturbide’s election as Emperor had been fraudulent; and, therefore, all acts of his administration were subject to revision.[52] Three days later, it suspended the Colonization Law of January 4, 1823.[53]

 The incessant demands for grants to establish colonies prompted the Mexican Federal Congress to pass a general Colonization Law on August 18, 1824.[54] This law established certain guidelines and instructed the State congresses to enact laws and regulations consistent there­with as soon as possible providing for the colonization of the public lands within their respective boundaries. The law prohibited the colonization of any land within twenty leagues of an international boundary and within ten leagues of the coast without the consent of the Supreme Government. It also prohibited “the granting of more than eleven square leagues to one person. It was further provided that the Supreme Executive had jurisdiction over colonization in the territories. In response to the provisions of this law, the States of Tamaulipas,[55] Coahuila and Texas,[56] and Chihuahua passed colonization laws.[57]

Sonora and Sinaloa passed an act on May 20, 1825,[58] which provided for the sale of its lands by the Treasurer General. The law provided a schedule of prices of the various classifications of lands, together with incidental fees, which were specified in the act. It also provided that the maximum amount of land a new stock raiser could acquire was four sitios, and an established stockman could acquire no more land than he actually needed.

The Supreme Executive of Mexico, acting under the provisions of the National Colonization Law of August 18, 1824,[59] issued a set of regulations on November 21, 1828,[60] which establishedthe procedure for the granting of land for colonization purposes in the territories. These regulations provided that governors[61] were authorized to grant land within their respective territories to any Mexi­can citizen or foreigner who might request land for the purpose of cultivation or settlement. The regulations set out a series of preliminary proceedings which had to be followed, in order to insure that the grant would not be prejudicial to the public or the rights of any third per­sons. The regulations contained many stringent conditions designed to guard against impositions and frauds by or upon the governors in the execution of grants.

Prior to 1830 the federal government had not attempted to exercise any direct control over the states in their efforts to colonize and settle their public lands. However, the influx of such a large number of emigrants from the United States, coupled with the uneasiness and distrust created by the past record of American expansion caused the MexicanCongress to take emergency steps to avert a crisis. Mexico was well aware that whenever the American westward movement clashed with a foreign border, the latter had receded. It was recognized that the meager buffer zone created in the National Colonization Law of August 18, 1824,[62] adjoining the international boundary and sea coast, afforded little genuine protection. Therefore, the Mexican government exercised the provision contained in the Seventh Article of the National Colonization Law of August 18, 1824,[63] which permitted the Supreme Congress to prohibit the admission of colonists from a particular country whenever circumstances indicated such action was in the best interest of the republic. On April 6, 1830,[64] an act was passed by the Supreme Congress, which provided that all foreigners who were residents of the coterminous nations were prohibited from being thereafter received as colonists, and all contracts which conflicted with the in-inhibition were expressly suspended. This act created such a tempest of protest and indignation that it was repealed[65] on November 21, 1833. Americans were again permitted to emigrate to Mexico after the new law[66] became effective on May 26, 1834.

No further attempt was made by the federal gov­ernment to interfere with the colonization programs of the various states until April 25, 1835, when the Mexican Congress prohibited[67] the frontier and litoral states from selling any vacant lands located within their boundaries without theprior approval of the federal government. Such action would appear to be an unwarranted usurpation of a power which had been relinquishedto the states and could not be resumed by the federal government arbitrarily at its pleasure. However, this act was one of the first indica­tions of the growing opposition by the church and military to the liberal policies of the revolutionaries. Thereafter church and military leaders advocated the formation of a conservative and centralized form of government. On December 29, 1836, a new constitution[68]was adopted which provided, among other things, for the reorganization of the former states as departments. New Mexico was admitted into the union as a department on the following day.[69]

On April 4, 1837, the Mexican Congress passed a new Co1onlzatlon Law[70] which repealed all former federal laws governing colonization and provided that all vacant land located in Mexico should be colonized by the federal government with the concurrence of its council by sale, lease or mortgage. Sufficient public lands were to be reserved to meet Mexico’s obligation to reward soldiers who had taken part in Mexico’s war of independence and the Texas Revolution. Land was to be reserved for Indian tribes and nations. This law revived the provision in the act of April 6, 1830, which prohibited Americans from set­tling in the area adjacent to the international boundary.

The Supreme Government consolidated and funded its national debt in 1837. As security for the payment of the bonds, Mexico, on April 12, 1837, pledged[71] one hundred mil­lion acres of vacant land in New Mexico, Chihuahua, Cali­fornia, Sonora and Texas. In lieu of payment of the bonds in cash, a bond holder, at his election, could select vacant land in any of said departments at the rate of four acres per pound sterling of debt.

Between 1841 and 1846 Mexican governments rose and fell with great rapidity. Each new regime promulgated a new constitution, but there apparently was little change in the basic procedures for the administration of the public domain. On August 22, 1846, the Constitution of 1824 was re­-established.[72] However, all proceeds derived from the sale of land for colonization purposes were to be turned over to the Supreme Government. A Bureau of Colonization was established [73] on November 27, 1846, with exclusive juris­diction over the colonization of the vacant public lands.  A detailed set of regulations[74] was promulgated on Decem­ber 4, 1846, covering the procedure for the surveying and colonization of the public domain. For some time Mexico had recognized that the undeveloped vacant lands along its frontiers were encouraging schemes of usurpation by its northern neighbor. However, it also was cognizant of the fact that the colonization of such lands by foreigners with­out proper supervision would encourage foreign encroachment. After meditating upon the meansfor removing the obstacles to immigration and in order to induce bona fide colonists to settle along its frontiers, Mexico decided to subdivide and map its public lands utilizing a system somewhat simi­lar to the rectangular survey system of the United States.

The public domain was surveyed into sitios or six square mile tracts. Each sitio was in turn subdivided into thirty-six lots of 526.0335 acres each. Thus, its public land could be easily identified, classified and sold for colonization purposes. The land was to be sold at public auction to the highest bidder following advertisement of the sale in the newspapers at the capital thirty days prior to the sale. The minimum acceptable bid was four reals per acre. Five per cent of the total purchase price was to be paid in cash, and the balance in quarterly installments over a two-year period. The regulations also provided for the establishment of civil colonies under contracts with promoters and the establishment of military colonies. All deeds were to be executed by the Board of Colonization. While slavery was expressly prohibited, there were no other restrictions upon foreign emigrants. A number of special privileges and exemptions were also extended to colonists. The regulations of December 4, 1846 continued in effect and provided the sole method subsequent to their promulgation for acquiring title to public land in Mexico until after the date of the Treaty of Guadalupe Hidalgo.

Following the signing of the Treaty of Guadalupe Hidalgo, Mexico exhorted its citizens, who suddenly found themselves on American soil, to emigrate to Mexico. To assist them in making the move, the President of Mexico, Jose Joaquin de Herrera, issued a decree[75] on August 19, 1848, providing for the establishment of civil colonies for their resettlement. Commissioners of Emigration were appointed and a fund established to assist the emigrants in obtaining a new start. The families from New Mexico were directed to proceed to Chihuahua. On May 22, 1851 the state of Chihuahua issued a set of regulations[76] governing the organization of civil colonies. Pursuant to the federal decree and state regulations, a large number of New Mexicans were settled in three civil colonies located on the west bank of the Rio Grande just south of the interna­tional boundary, which had been established pursuant to the compromise entered into by Commissioners John Russell Bartlett and Pedro Garcia Conde.

It is interesting to note that shortly after the Gadsden Purchase had been concluded, Santa Ana issued a decree[77] which was dated July 7, 1854, that required all titles to land issued between September, 1821, and that date to be submitted to the supreme government for review and ratification; otherwise, they would be deemed to be void. This decree declared that all titles made without the knowledge and approval of the supreme government under the Central System — the periods between (a) October 3, 1835, and August 4, 1846; and (b) March 17, 1853, and July 7, 1854 —­were void. It also held that all grants made by local authorities in the states or departments under the Federal System — the period between August 4, 1846 and March 17, 1853 — were void if they had not been made for the pur­poses of promoting colonization. A similar law dated December 3, 1855[78] purported to repeal the Act of July 7, 1854, but in effect re-enacted it. From these two acts, it is clear that the Mexican lawmakers were of the opinion that, under the Central System, a valid grant could not be made without the express authority of the supreme govern­ment, while, under the Federal System, a valid grant could only be made under the provisions of the Colonization Law[79]of August 18, 1824 or the Regulations of November 21, 1828.[80] The United States Circuit Court for the Ninth Circuit in the Bouldin case[81] adopted the later conclusion. In that case, the court held:

The Colonization Laws of 1824 and the Regulations of 1828 were, after their adoption and prior to its acquisition by the United States, the only laws in force under which public land in California could be granted.

After the Treaty of Guadalupe Hidalgo and the Gadsden Purchase, the United States government was confronted with the serious problem of determining the validity and recognizing valid land grants located in the Southwest. From the outset it was recognized that three distinct types of grants had been made by Spain and Mexico those made to colonies or settlements, those made to individuals, and those made to empresarios. Intricate questions of fact and complicated questions of law naturally arose in connec­tion with authority to issue these grants and the procedures followed in acquiring land under the Spanish and Mexican land systems. Thus, a familiarity of Spanish and Mexican land law becomes essential in order to understand the funda­mental questions which had to be decided in determining the validity of any private land claim arising under Spanish and Mexican land grants.

[1] Vast areas of rich farm land were assigned to the missions in Spanish America. The missionaries gradually expanded the limits of the missions so that the boundary of one often became the boundary of the next even though only a part of the land was needed for the support of its neophytes and their animals. However, it was well recognized that the mission’s right to such land was a mere license and carried neither fee title nor permanent right of use. As the fron­tier areas developed and the demand for land by settlers in­creased, the land-monopolizing missions became increasingly anachronistic and finally led to their secularization. The only land confirmed by the United States to a mission was limited to the exact area covered by church buildings, ceme­teries, and gardens. In California, the area confirmed to the Roman Catholic Church in connection with its 22 missions ranged from 6.48 to 283.13 acres. The Mission of San Xavier del Bac in Arizona received 14 acres. Since the 20 New Mexi­co Indian Villages, which received confirmation of their land Claims, were considered to be Pueblos from an early date, they never passed through the mission stage. The Texas courts have considered missions and pueblos to be synonymous, and have held that pueblos had no indefeasible proprietary in­terests in their lands. Pince v. Cobb, 155 S.W. 608 Tex. Civ. App. 1913). However, by Act dated January 13, 1841, Texas granted the Roman Catholic Church the lands upon which the church and out­buildings were located, not to exceed fifteen acres. 2 Gammel, The Laws of Texas, 28 (1898).

[2] The mission system in New Mexico was somewhat different than in California since the Pueblo Indians were already  living in permanent villages and were never “reduced.” It only remained to establish parish churches and change the existing style of government to the Spanish system. Blackmar, Spanish Institutions of the Southwest, 227 (1891).

[3] Decreto de las Cortes de 13 de Septiembre de 1813 (Mss., Records of the Bancroft Collection, Berkeley, California) .

[4] Recopilacion de Leyes de los Reynos de las Indias, Book 4, Title 3, Law 8 (1943).

[5] Royal Cedula of June 4, 1687, a translated copy of which is contained in 1 Twitchel, Spanish Archives of New Mexico, 475-477 (1914).

[6] Twelve of New Mexico’s pueblos possessed pur­ported grants made by Governor Domingo Jironza Petrix de Cruzate in 1689; however, each of these grants has been proven to be spurious. Congress confirmed the Cruzate Grants, together with the claims of eight additional New Mexico pueblos which were based on the tradition that they had received grants from Spain. Six of the pueblo confirmed grants exceed four leagues in area. Only one pueblo (Sandia) received a grant which is believed to be genuine. It was made in 1748 by Governor Codallos y Rabal.

[7] Hall, The Laws of Mexico, 61 (1885). Dr. Myra Ellen Jenkins believes that several of the New Mexico ·pueblos obtained grants for in excess of four square leagues but the grant papers were lost. (Interview on October 8, 1968). San Antonio, Texas, grant covers six square leagues. Lewis v. San Antonio, 7 Tex. 288 (1851).

[8] Op. Cit., see Note No.5.

[9] Cohen, Handbook of Federal Indian Law, 383 (1942) .

[10] The purely civil colonies of California were called pueblos to distinguish them from missions and presidios. However, the term “pueblo” may embrace towns of every description, and consequently might apply equally as well to a mission and its surrounding Indian village, the settlement surrounding a presidio, or a regularly settled colony. Blackmar, Spanish Institutions of the Southwest, 153 (1891). In New Mexico, the term “pueblo” was used to designate an Indian settlement. See also Norwell, “A Primer of Spanish Towns in Southwestern United States,” 37 Notre Dame Lawyer 630 (1962).

[11] Recopilación de Leyes de los Reynos de las Indias, Book 4, Tltle5, Law 6 and 7 (1943).

[12] A peonia, or a grant to a foot soldier, was a tract 50′ x l0′ and sufficient arable land to pro­duce 100 fanegas of wheat and barley, and 10 of Indian corn; 2 huebras for a garden, and 8 for wood lands; pasture land for 10 sows, 20 cows, 5 mares, 100 ewes, and 20 goats. Recopilación de Leyes de los Reynos de las Indias, Book 4, Title 5, Law 9 (1943).

[13] A caballeria, or a grant to a mounted soldier, was a tract 10′ x 200′ and five times as much arable land as a peonia. In the Southwest, a caballeria was a 1104 x 552 vara tract, or 105.7 acres. Ibid.; and Taylor, The Spanish Archives of the General Land Office of Texas, 78 1955).

[14] Recopilación de Leyes de los Reynos de las Indias, Book 4, Title 5, Law 9 and Book 4, Title 5, Law 7 (1943).

[15] Recopilación de Leyes de los Reynos de las Indias, Book 4, Title 5, Law 10 (1943).

[16] Recopilación de Leyes de los Reynos de las Indias, Book 4, Title 7, Law 2 (1943).

[17] Hall , The Laws of Mexico, 51 (1885).

[18] The Plan of Pitic, which related to the forma­tion of the Town of Pitic (now Hermosillo, Sonora), de­clared that it should contain four square leagues. This plan was ordered by the King to be observed throughout the commandancia, and thus became the law on colonization in California, Nueva Vizcaya, Sonora and New Mexico. Black­mar, Spanish Institutions of the Southwest, 199 (1891). The United States Supreme Court in Townsend v. Greeley, 5 Wall. (72 U.S.) 326 (1866) held the laws of Spain “pro­vided for the assignment to the pueblos and towns, when once established and officially recognized, for their use and the use of their inhabitants, of four square leagues of land.” However, this decision was clarified by the United States Supreme Court in United States v. Santa Fe, 165 U.S. 675 (1897), which held that Spanish law did not, proprio vigore, confer upon every Spanish town a grant of four square leagues of land to be meas­ured from the center of the plaza of such town.

[19] Hall, The Laws of Mexico, 54 (1885).

[20] Merryman v. Bourne, 9 Wall (76 U.S.) 592 (1869).

[21] H. R. Exec. Doc. No. 17, 31st Cong., 1st Sess., 133(1850).

[22] Reynolds, Spanish and Mexican Land Law, 62 (1895).

[23] Nava was mistaken in this connection, for two leagues in each direction would have made sixteen square leagues. Title to at least four towns in California, and perhaps one in Texas, is based on these regulations. The Order of Pedro de Nava was revoked on January 19, 1793, because it violated Article 81 of the Ordinance of Inten­dants, which gave Intendants exclusive jurisdiction over the sale, allotment and composition of the royal domain. Reynolds, Spanish and Mexican Land Laws, 29 (1895).

[24] At the time of the Conquest of Mexico in 1522, the laws of Spain were, in the order of promulgation, em­bodied in the following compilations:

Fuero Juzo (693 A.D.)

Fuero Viejo de Castilla (992)

Fuero Real (1255)

Las Siete Partidas (1263)

Especulo (1280)

Leyes de los Adelantados Mayores (1282)

Leyes del Estilo (1310)

Ordenamiento de las Tafurerias (1314)

Ordenamiento de Alcala (1348)

Ordenanzas Reales de Castilla (1485)

Ordenamiento Real (1490)

Leyes de Toro (1505)

However, much of this vast body of law already was obsolete or unsuitable for conditions found in the Indies. In res­ponse to demands for a revision and consolidation of the ancient codes, the Nueva Recopilación was promulgated by Phillip II on March 14, 1567. This new work expressly re­pealed all of the former laws except the Fuero Real and Siete Partidas. Although in a general sense these laws applied to the Indies, special conditions found in the new world called for certain modifications and supplementary legislation, especially in the field of political, administrative, and penal law. The earliest compilation of laws relating solely to the Indies was the Cedulario de Puga (1563). In 1680 the Recopilación de Leyes de los Reynos de las Indias was published. It continued to be the basic collection of the laws and regulations issued by the Spanish crown for the colonies until they achieved their independence. The Nueva Recopilación was superseded by the Novisima Recopilación in 1805. The Novisima Recopilación is supple­mented by the legislation enacted by one Cortes during the years 1810-1814 and 1820-l823, and also the decrees of Ferdinand VI during the period of his absolute reign from 1814 to 1820. The acts and decrees which affected Mexico were compiled in Mariano Galvan Rivera’s Colección de los decretos y ordenes de las Cortes de Espana que se reputan vigentes en la Republica de los Estados Unidos Mexicanos (1829). Vance and Clagett, A Guide to the Law and Legal Literature of Mexico, 16-23 (1945). English trans­lations of Spanish and Mexican laws are limited. In 1820 L. Moreau and Henry Carleton translated the Siete Partidas. Joseph M. White translated selected portions of the Recopilación de Leyes de los Reynos de las Indias dealing with land in 1839. [White, A New Collection of Laws, Charters, and Local Ordinances of the Governments of Great Britain, France and Spain (2 vols.,1839)]. Matthew G. Reynolds, United States Attorney for the Court of Private Land Claims, published a very useful compilation of selected Spanish and Mexican land laws. His historical sketch of the development of the law is especially useful. Reynolds, Spanish and Mexican Land Laws (1895). Hall, The Laws of Mexico (1885) is a good general treatise. Rockwell, Spanish and Mexican Law (1851) deals primarily with Spanish and Mexican mineral law. Schmidt, The Civil Law of Spain and Mexico (1851) is a good treatise on the civil law. In his Annual Report for 1861 [So Exec. Doc. No.1, 37th Cong., 2 Sess., 576 (1861], Surveyor General Alexander P. Wilbar pointed out that the Act of July 22, 1854, required him to base his investiga­tions of private land claims in part upon the laws, usages, and customs of Spain and Mexico. Since he did not have the reference books to determine such laws, usages and customs, he felt insecure in this important area of his job. There­fore, he requested that the following twenty books be pur­chased for his office:

 Escriche, Diccionario de Legislacion.

Cornejo, Diccionario Real de España.

Pascua, Febrero Novísimo.

Ordenanzas de Mineria.

Sala, Hispano -Mejicano.

Novísima Recopilación de las Leyes de España.

Colección de los Decretos y Ordenes de la Corte.

Colección de los Decretos de 1821.

Galvan, Ordenanzas de Tierras y Agua.

Moreau and Carleton, Las Siete Partidas.

Instituciones de la Ley-Civil de España.

Biblioteca de Legislación Ultramarina.

Manuel del Abogado.

Pandectas, Hispano -Mexicanas.

Lara, Ultimas Voluntades y Testimonios.

White, Land Law.

Salazano, Politica Indiana

Diccionario de la Academia Española

Sevane’s, Newman & Barrett’s Spanish Pronouning Dictionary.

Nuevo Diccionario de la Castillana por una Sociedad Literaria.

[25] Royal Cedula of November 1, 1591, a translated copy of which is contained in Hall, The Laws of Mexico, 11 (l885).

[26] United States v. Clarke, 8 Pet. (33 U.S.) 436 (1834).

[27] Donaldson, The Public Domain, 1126 (1884).

[28] A translated copy of these instructions is con­tained in 2 White, A New Collection of Laws, Charters and Ordinances of the Government of Great Britain, France and Spain, 62-67 (1839).

[29] 1 Belena, Recopilación Sumaria, 290-291 (1787).

[30] A translation of excerpts of these ordinances is contained in Reynolds, Spanish and Mexican Land Laws, 59­-61 (l895).

[31] A translated copy of this cedula is contained in Reynolds, Spanish and Mexican Land Laws, 65-67 (1895).

[32] Chavez v. United States, 168 U. S. 177 (1898).

[33] 5 American State Papers, 732-734 (1834).

[34] United States v. Richard, 8 Pet. (33 U.S.) 470 (1834), United States v. Clarke, 8 Pet. (33 U.S.) 436 (1834), and 8 American State Papers, 251 (1834). The Jornada del Muerto Grant was made in consideration of the grantee’s covenant to drill water wells, and the Sulton Grant was made in consideration of loans of money to the government and a covenant to build woolen mills and introduce merina sheep into New Mexico.

[35] The cedula of March 29, 1815, states that the king approved of grants for such service. A copy of this order is contained in 2 White, A New Collection of Laws, Charters, and Local Ordinances of the Governments of Great Britain, France and Spain, 279-280 (1839). The United States counsel in United States v. Clarke, 8 Pet. (33 U.S.) 436 (1834), asserted in his argument, which is printed in the appendix to the case (8 Pet. 705), that until after the date of the cedula of 1815 there was no authority for the granting of land in East Florida for purposes other than habita­tion and cultivation; however, it was shown that among the earliest laws for the government of the Americas is an order that the Viceroys of Peru and Mexico “grant such rewards, favors and compensation as to them may seem fit.” A subse­quent order, after directing extensive dispositions of territory, added “all the remaining land may be reserved to us, clear of any encumbrances, for the purpose of being given as rewards, or disposed of according to our pleasure.’ There is also a law that states, “it is our pleasure that services be remunerated where they shall have been per­formed.” Thus, it would seem that if the remuneration were land, they would be granted by the governor. Ibid. The Sebastian de Vargas, Gervacio Nolan, and Baltazar Baca Grants are examples of New Mexican grants made as rewards for military services rendered to the crown.

[36] A translated copy of this decree is contained in Reynolds, Spanish and Mexican Land Laws, 83-87 {l895).

[37] This provision probably applied only to the vacant located within or adjacent to a municipality.

[38] Vallejo v. United States, 24 Jow. (65 U.S.) 451 (1860).

[39] United States v. Clarke, 8 Pet. (33 U.S.) 436 (1834).

[40] The requested lands were frequently described as (a) a tract of a certain number of leagues with a natural object as its center point; (b) a tract bounded by natural objects located in each of the cardinal directions, but no mention being made as to the quantity of land embraced within such boundaries; (c) a well-known tract whose boundaries were to be fixed when possession was delivered; or (d) a floating or unlocated tract to be located upon the request of the grantee.

[41] Legal instruments were required to be written on stamped paper. The stamps were printed on the paper, and came in four denominations ranging from three reales to a sixteenth of a real. The nature of the instrument determined the kind of paper to be used. Recopilación de Leyes de los Reynos de las Indias, Book 8, Title 23, Law 18 (1943).

[42] A notary, under Spanish and Mexican law, was a more important official than in the United States. He was a highly qualified lawyer who was, among other things, commissioned to prepare legal instruments and certify that certain transactions transpired. They were universally non-existent on the frontiers of New Spain, and thus attesting witnesses were always used in connection with land grant proceedings. Lawyers were also rarely present along the frontiers. The total number of lawyers present in New Mexico during its entire history prior to 1846 could probably be numbered on one hand. For instance, Antonio Barreiro was the only qualified lawyer in New Mexico in 1831-1833. Law books were also extremely scarce in the frontier provinces. The absence of law books and lawyers easily accounts for the failure of the many grants to com­ply with the myriad changes in the law. It is truly re­markable that the uneducated officials were able to inter­pret the technicalities of the cedulas as well as they did. It is obvious that they relied heavily on the use of “tried and true forms,” which were probably used for generations, in connection with their roles in issuing land grants.

[43] The Spaniards and Mexicans were meticulous in keeping detailed official records. However, the frequent revolutions and changes in sovereignty were very hard on such archives. The archives at the capitals of the various jurisdictions were often ravaged, and it is a miracle that so many of the existing records have been preserved.

[44] Descola, A History of Spain, 365-369 (1963). Ferdinand VII issued a cedula on April 15, 1820, which effectuated all laws and ordinances promulgated by the Cortes prior to 1814. Thus, the law of January 4, 1813, was reinstated by the crown just before it lost power. 6 Castaneda, Our Catholic Heritage in Texas, 186 (1950).

[45] 4 Bancroft, History of Mexico, 734-778 (1885).

[46] Jones v. St. Louis Land & Cattle Co., 232 U.S. 355 (1914). This position is based upon the Supreme Court’s reversal of the decision of the New Mexico Supreme Court in Stoneroad v. Beck, 16 N.M. 754, 120 P. 898 (1~12) where the question was extensively discussed.

[47] Bancroft, History of Mexico, 775-778 (1885) .

[48] 1 Gammel, The Laws of Texas, 27-30 (1898).

[49] Under the act, the basic unit of measurement was the vara. A vara was defined in the act as “three geo­metrical-feet.” At that time, the vara appears to have been about 32.9 inches. [It has been fixed by statute in Texas as 33-1/2 inches. General Laws of the State of Texas, 32 (1919). Texas is the only jurisdiction which uses a 33-1/3 inch vara.] Five thousand varas constituted a league and a league square was a sitio. A hacienda contained five sitios. A labor contained one thousand varas square.

[50] The Heath Grant is the only Southwestern con­cession made under the 1823 Colonization Law.

[51] On October 4, 1824, a republican constitution, known as the Constitution of 1824, was finally proclaimed, which inaugurated a federal union of 19 sovereign and in­dependent states with New Mexico and three other former provinces annexed as federal territories. Bancroft, His­tory of Arizona and New Mexico, 310~311 (1889). While the Constitution of the United States created a union out of thirteen independent states, the Mexican Constitution of 1824 dissolved the Mexican unionand made separate states and territories out of the Spanish provinces. In the United States, the public lands which had been owned by the several states were surrendered to the federal govern­ment for administration, while in Mexico the public domain was turned over by the central government to the states for colonization.

[52] A translated copy is in Reynolds, Spanish and Mexican Land Laws, 107 (1895).

[53] Galvan, Ordenanzas de Tierras y Agua, 121 (1868) .

[54] 1 Gammel, The Laws of Texas, 38~41 (1898). The Supreme Court in Hayes v. United States, 170 U.S. 637 (1898) held that the Spanish law of January 4, 1813, which pro­vided for the disposition of crown lands and municipal domains was not in force in New Mexico after the enactment of the Colonization Law of August 18, 1824. There is a serious question as to whether there was any law that would authorize the granting of land in New Mexico between April 11, 1823 (the date of the repudiation of the Colonization Law of 1823) and November 21, 1828 (the date of the issuance of the regulations governing colonization in the territories).

[55] Ibid., 454-459.

[56] Ibid., 125-133.

[57] A translated copy is contained in Reynolds, Spanish and Mexican Land Laws, 132-136 (1895).

[58] Ibid., 129-131.

[59] Ibid., 121.

[60] Ibid., 141.

[61] In order to avoid confusion, the term “governor” has been generally used to designate the executive officer of a Mexican Province, State or Department, notwithstanding the fact that between 1822 and 1827 his title was Political Chief.

[62] Reynolds, Spanish and Mexican Land Laws, 121 (1895) .

[63] Ibid.

[64] A translated copy of this act is contained in Wallace and Vigness, Documents of Texas History, 66-67 (1963).

[65] A translated copy of this act is contained in Reynolds, Spanish and Mexican Land Laws, 181 (1895).

[66] Texas v. Thorn, 3 Tex. 499 (1881).

[67] A translated copy of this act is contained in Reynolds, Spanish and Mexican Land Laws, 193 (1895).

[68] Ibid., 203. The Supreme Court in United States v. Coe, 170 U.S. 681 (1899), held that after the adoption of the Constitution of 1836 the departmental officials had no authority to grant public lands.

[69] Ibid., 209.

[70] Ibid., 222.

[71] Ibid., 223.

[72] Ibid., 256.

[73] Ibid., 261.

[74] Ibid., 263. It is especially interesting to note that Article 21 of the regulations expressly excepted minerals under all lands granted for colonization. This was the first time that minerals were expressly mentioned in a law or regulation, since theretofore it had always been recognized that minerals were the special prerogative of the sovereign. Under this theory of law, no mention of the reservation of minerals needed to be made in grant papers, since land grants simply had nothing to do with minerals and in no way affected the mineral ownership. To facilitate development of mineral resources, Charles III promulgated the Royal Mining Ordinance of May 22, 1783. The ordinance permitted every Spaniard or foreigner to dig in search of minerals on his land, the public domain or the lands of another, subject only to the payment of damages. The dis­coverer was entitled to retain 1/3rd of the net profits from mining operations, the balance to be paid to the gov­ernment. The Ordinance of 1783 continued in effect in Mexico until 1884. A translated copy of this ordinance is contained in Rockwell, Spanish and Mexican Law, 4-111 (1851).

[75] A translated copy is contained in S. Exec. Doc.  No. 56,  43d Cong., 1st Sess., 27-30 (1874).

[76] Ibid., 21-26.

[77] A translated copy of this decree is contained in Reynolds, Spanish and Mexican Land Laws, 326 (1895).

[78] Ibid., 329.

[79] Ibid., 121.

[80] Ibid., 141.

[81] Bouldin v. Philips, 30 F. 547 (9th Cir., 1887).

 

Spanish and Mexican Procedures for Granting Land: J.J. Bowden’s research on land grants