by J. J. Bowden
The long depression in the United States following the panic of 1819, caused many adventurous Americans to consider Mexico’s generous offers of land for colonists who would settle along its northern frontiers. Under the Empresario system, East Texas was rapidly settled and developed. However, the only serious attempt by an American to establish a colony in the Southwest was made by Dr. John G. Heath. Heath, a wealthy and ambitious lawyer from Franklin City, Missouri, was intimately acquainted with Moses Austin and his Texas colonization scheme. He also knew Captain William Becknell and numerous other Santa Fe traders. Austin’s Texas plans undoubtedly aroused Heath’s interests in the opportunities available in Mexico and the Santa Fe traders probably informed Heath about the richness of the soil at El Bracito.[1] Fired with the spirit of adventure and dreams of profits, Heath petitioned the Ayuntamiento of El Paso del Norte on December 27, 1822, requesting a grant covering the lands at El Bracito. On April 3, 1823, the Ayuntamiento advised Heath that it would not issue the requested grant since in the interim the National Government had promulgated the Colonization Law of January 4, 1823,[2] and he should repetition for the grant under the terms of the new law.
Dr. John G. Heath, using his Spanish name of Juan Gid, filed another petition with the Ayuntamiento of El Paso del Norte on April 3, 1823, for a grant of twenty‑five leagues of land in the form of a square with the head of the Bracito acequia as its central point. In consideration for this grant, Heath agreed to establish a colony of thirty Catholic families on the land, among whom were to be representatives of various trades and professions. He further agreed to furnish all agricultural implements necessary to cultivate the lands and promised to build and equip a hospital, a drug store, a warehouse, a powder factory and a textile mill on the grant. The Ayuntamiento found that the Heath proposition would be beneficial to the general welfare of the area. In accordance with the provisions of Article 4 of the Colonization Law of January 4, 1823, the Ayuntarniento on April 3, 1823, granted Heath a square tract of land extending two and one‑half leagues in each direction from the mouth of the Bracito acequia. The grant was made subject to the understanding that any Mexican citizen desiring the lands would have the preferential right to acquire them upon the same terms offered by Heath. The Ayuntamiento also stated the grant was made subject to the securing of the approval by the Governor of the Province.
The Ayuntamiento gave public notice of a meeting to be held at the Town Hall on the 13th day of April 1823, at which time any interested party would be given an opportunity to voice his objections to the making of the concession. A large group of citizens from the area attended this meeting, but no one objected to the granting of the lands to Heath. At the end of he meeting, the Ayuntamiento appointed a Commission, composed of Alcalde Jose Morales, Alderman Jose Maria Valarde, Public Attorney Lorenzo Provincio, and Secretary Juan Maria Ponce de Leon, to survey the grant. The Commission was also ordered to place Heath in legal possession of the lands covered by the grant.
At a meeting of the Ayuntamiento which was held two days later, Agapito Albo protested the granting of the lands to Heath on the grounds that the new settlement would endanger the future prosperity of El Paso del Norte by consuming all of the river water on its farms and industries during the frequent periods of the drought. The objection was dismissed when Heath pointed out that the Ayuntamiento had authority to regulate the equitable distribution of waters under its jurisdiction.
On April 17, 1823, the Commission commenced the survey of the grant. The survey was commenced at the mouth of the Bracito acequia and proceeded thence north two and one‑half leagues to a point on the summit of a hill which marked the center of the north line. The surveyors proceeded from this point east two and one‑half leagues to a point upon a hill called La Cueva in the Oregon Mountains for the northeast corner of the grant. Returning to the center point on the north line, the surveyors ran thence west to two and one-half leagues to a monument on the mountain known as Roblecito for the northwest corner of the grant. The surveyors then returned to the mouth of the Bracito acequia and ran thence south two and one‑half leagues to a point for the center of the south line. The survey ran thence west two and one-half leagues to the place known as Cuba de los Organos for the southwest corner. The surveyors then returned to the central point on the south line and ran thence east two and one‑half leagues to a point on the east peak of the El Paso Mountains which is called Paso de los Alamitos for the southeast corner. The east and west lines of the grant were not actually surveyed on the ground, but were merely projected north and south from the established corners.
After the survey was concluded, the commission placed Heath in possession of the lands, and instructed him to use the bottom lands only for agricultural purposes. Heath was also notified that he could use water from the river to run his machines as long as they did not interfere with the welfare of the new colony or the Town of El Paso del Norte. The Commission filed a written report of its actions with the Ayuntamiento on April 21, 1823, which was accepted and approved on the following day. A plat of the grant prepared by William Box, master mathematician, was also approved by the Ayuntamiento and attached to the title papers of the grant. A copy of the expediente of the grant was transmitted to the Governor of New Mexico on April 26, 1823. In its letter transmitting the copy of the expediente, the Ayuntamiento justified its actions on the ground that it had jurisdiction over the territory extending up the river from El Paso del Norte to San Diego. The Ayuntamiento also called the Governor’s attention to the fact that the inhabitants of that area were then completely dependent upon agriculture for their livelihood, and due to the rapid growth of the population of El Paso del Norte, many of its inhabitants were unable to secure sufficient farm lands to support their families. The Ayuntamiento pointed out that at that time the fertile bottom lands at El Bracito were being used by the ranchers of the area as a pasturage for their livestock. As a result of this situation, the economy and living standards of the town were gradually declining. The Ayuntamiento believed that many of its landless residents would be willing to settle in the Mesilla Valley if the government would offer them a tract of farm land and adequate protection from the Apaches. The Ayuntarniento asserted that it firmly believed that the Heath Colony would be highly beneficial to the general welfare of the district, because the residents of El Paso del Norte would reap many advantages from the industries, arts and instructions which such a colony would offer. It noted that once the new colony had completed its irrigation system, all the valley land lying between the grant and El Paso del Norte could be opened up for agricultural purposes. Thus, the landless citizens of El Paso del Norte could settle the intervening lands and tie onto the Bracito acequia. The Ayuntamiento was also careful to point out that the Heath Colony would tend to restrain the Indians from attacking the town of El Paso del Norte and travelers on the Camino Real. In regard to the objection that the colony would prejudice the water rights of the farmers at El Paso del Norte, the Ayuntamiento asserted that it had sufficient jurisdiction to regulate the equitable distribution of water between the interested parties. Based upon these findings, the Ayuntamiento stated that it believed that it was justified in issuing the concession to Heath under Articles 4 and 5 of the Colonization Law, but in order to settle all questions concerning the validity of its action, the Ayuntamiento called the Governor’s attention to the fact that it had issued the grant subject to his approval.
Upon receipt of the Ayuntamiento’s letter, the Governor presented the matter to the Provincial Deputation for its consent and advice. The Assembly immediately repudiated the actions of the Ayuntarniento on the ground that the Colonization Law of 1823 had been repealed before all of the actions necessary convey a valid grant had been completed. In admonishing the Ayuntamiento, the Assembly expressed its contempt for the violent and mistaken actions taken by the Ayuntamiento in granting land to a foreigner, not only in prejudice‑to the inhabitants of its jurisdiction, but also in violation of the very law under which it purported to act. In conclusion, the Assembly advised the Ayuntamiento that in order to avoid the liability for damages, it should immediately notify Heath, through the Mexican Consul to the United States, that the grant had been issued under a mistaken opinion and wrong understanding of the Colonization Law which had already been repealed.[3]
In the meantime, Heath had returned to Missouri and organized a company of approximately 150 colonists. He had disposed of his extensive holdings in Missouri by April 17, 1824, and with the proceeds therefrom purchased a large quantity of agricultural implements, machinery, supplies and paraphernalia to support the enterprise. Early in the spring of 1824, John Heath and his colonists bade farewell to their friends and commenced their migration to Mexico. The colonists embarked at Franklin, Missouri, and traveled down the Missouri and Mississippi Rivers to New Orleans on a fleet of flatboats. At New Orleans, the colonists chartered a boat which transported them and their supplies to the Mexican harbor of Soto la Marina. They traveled thence overland to the grant by way of Chihuahua and El Paso del Norte.
Immediately after the settler reached the grant, Heath was advised by the Mexican authorities at El Paso del Norte that Emperor Iturbide’s government had been overthrown by a revolution, and that the Governor and Provincial Deputation of New Mexico had repudiated the grant on June 19, 1823. After the forceful ejection of the colonists from the grant, they temporarily moved to El Paso del Norte. Heath protested on the ground that he had faithfully fulfilled all of the provisions of his agreement and was, therefore, entitled to the land. He also made numerous applications to the Ayuntamiento of El Paso del Norte and other authorities in Mexico for the ratification and confirmation of the grant, all of which were refused. Most of the colonists returned to Missouri in 1825, after it became obvious that Heath would not be able to secure the recognition of his claim. Finally in 1826, under penalty of death, Heath was forced by the Mexican Government to abandon all of his personal property and leave the country.
Heath returned to Missouri, bankrupted and financially ruined. It has been alleged that the venture cost him over $75,000.00.[4] Up until the date of his death in August, 1851, in Boone County, Missouri, Heath never gave up hope of obtaining recognition of his claim.
Due to a lack of funds and the destruction of the testimonio of the grant in 1863, when the union forces burned Heath’s son’s home in Gasconade, Missouri, no formal action was taken by Heath’s heirs to secure the recognition of the grant by the United States prior to 1892. In that year, they retained Attorney J. B. Cessna to represent their interests and conveyed an undivided one‑half interest in the grant to him on October 6, 1892, in consideration of his legal services. On January 9, 1893, J. B. Cessna and the heirs of John Heath filed suit against the United States and the unknown claimants of the Dona Ana Bend Grant, the Mesilla Colony Grant and the Bracito Grant in the Court of Private Land Claims for the recognition and confirmation of the grant.[5]
The plaintiffs in their petition alleged that they were the owners of a twenty‑five acre tract of land known as the Heath Grant which had been duly granted to John G. Heath by the Ayuntamiento of El Paso del Norte in April, 1823, in accordance with he Colonization Law of January 4, 1823. They proved that Heath had fulfilled all of the conditions contained in the grant insofar as he was permitted to do so by the Mexican authorities. They contended that the execution of the grant and Heath’s subsequent acts in reliance thereon had vested absolute title to the grant in Heath. They also introduced a copy of the grant papers which they had found in the Archives of New Mexico.[6] The plaintiffs claimed that the repudiation of the Heath Grant by the New Mexican authorities was illegal and therefore, their claim was protected under the terms of the Treaty of Guadalupe Hidalgo and the Gadsden Purchase. The defendants answered by asserting that the Heath Grant was invalid because it did not conform with the provisions of the Colonization Law of January, 1823, and that the Ayuntamiento of El Paso del Norte had no authority to grant the tract to Heath after April 11, 1823, which was the date which the National Congress of Mexico revoked the Colonization Law of January 4, 1823. They also pointed out that the grant clearly stated on its face that it had been made subject to its subsequently being approved by the Governor of the Province, and that the Governor and Assembly of New Mexico had on June 19, 1823, repudiated the grant. They also pointed out that the Mexican authorities had considered the grant to be void, for most of the lands covered thereby subsequently had been conveyed to the Dona Ana Bend Colony, the Mesilla Civil Colony, the Santo Tomas de Yturbide Colony and Jose Manuel Sanchez Baca. Next they noted that the Heath Grant was located on both sides of the Rio Grande River and contended that under Mexican law, private land surveys were prohibited from crossing perennial streams which were more than 30 feet wide. They also called attention to the fact that the Heath Grant purported to cover a hacienda of land and that the Colonization Law of January 4, 1823, defined a hacienda as being five leagues of land. This would limit the claim to five leagues instead of the twenty‑five leagues claimed by the plaintiffs.
The Court of Private Land Claims found that the Ayuntamiento of El Paso del Norte had attempted to make a concession to Heath in April, 1823, under authority of Article 4 of the Colonization Law of January 4, 1823, but that law limited the authority of the Ayuntamiento to the distribution of land lying within the limits of the town’s four‑league grant. The Court further found that even if Article 4 of the law permitted the Ayuntamiento grant unlimited amounts of the public domain to foreign colonizers upon such terms as it might choose, the grant was invalid, because, prior to settlement, the Ayuntamiento was only authorized under the law to designate the out boundaries of the lands which were to be occupied by the proposed colony. The Court interpreted the concession as authorizing Heath to lead a group of colonists to the area covered in the grant and once having been settled upon the grant, each individual colonist was to apply to the Ayuntamiento for a grant covering his individual tract or allotment of land. The court further found that Heath’s privilege of establishing a colony on the lands at Bracito had been lawfully revoked by the Mexican Government prior to actual introduction of any emigrants upon the grant. The Court, therefore, rejected the plaintiffs’ claim in its decision dated June 26, 1895, and decreed that John Heath had not acquired an interest in the 108,000 acres of land covered by the grant, which the United States was obligated to recognize under the Treaties 7 of Concession by Mexico to the United States.[7]
The plaintiffs promptly appealed the decision to the Supreme Court of the United States. In their brief, the owners of the grant argued that the grant had been legally made under the Colonization Law of January 4, 1823, which authorized the Ayuntamiento to make grants of public lands under its jurisdiction to colonists. They asserted that they had clearly proved that the Ayuntamiento of El Paso del Norte had jurisdiction over public lands up to San Diego, New Mexico. They further argues that under the National Colonization Law of 1823, only the Emperor had authority to grant lands to Empresarios and only the Ayuntamientos had authority to grant land to colonists. In view of the fact that the National Colonization Act had conferred exclusive jurisdiction over colonization matters on the Emperor and Ayuntamiento, the condition contained in the Heath Grant requiring the approval by the Governor of New Mexico was surplusage because neither the Governor nor the Assembly had authority under the National Colonization Act to approve or disapprove the grant. The appellants next point was that the language in Heath’s title papers granting him a “hacienda of land” was general language meaning a “residence” consisting of the lands described within the out boundaries of the grant, and that the language did not limit the grant to five square leagues. In connection with the provision in the National Colonization Law of 1823, which limited grants to a maximum of eleven leagues, the appellants contended that the limitation applied only to Empresaries Grants. They then asserted that under the National Colonization Law of 1823, a colonist was to receive a minimum of one labor of land if he was a farmer and one league of land if he was a stock raiser. They interpreted this provision as being the absolute minimum amount of land which could be awarded to a colonist. Continuing, they argued that if a colonist’s means and position justified a larger grant, then the Ayuntamiento was authorized under the law to convey more than the minimum amount of land to such a colonist. The discretion as to whether or not a colonist was entitled to receive a grant covering more than the minimum was left solely to the Ayuntamiento. In support of their contention that the Ayuntamiento had authority to grant large tracts of land to colonists, the appellants pointed out that the Ayuntamiento to El Paso del Norte had made a grant of fifty leagues of land to Jose Lerma under the National Colonization Law of 1823, and that this grant had subsequently been confirmed and recognized as being valid by the Governor and Assembly of Chihuahua. The appellants also argued that under Mexican Law, the Decree repealing the National Colonization Law of 1823, would not be effective at El Paso del Norte until it had been published. It was known that such notice had not been published in El Paso del Norte until long after Heath’s Grant had been executed and delivered. The appellants contended that actions of the local Mexican authorities preventing him from occupying the grant relieved Heath from fulfilling the conditions contained in the grant. Concluding, the appellants asserted that even if the Governor’s consent to the grant was necessary and if Heath had failed to comply with the conditions subsequent, which required the cultivation of the lands for a two‑year period, there could be no denouncement of his title to the grant without a formal judicial proceeding and decree to that effect. They argued that the subsequent regranting of portions of the lands covered by the Heath Grant would not under Mexican Law be considered as a denouncement of the grant.[8]
The Supreme Court affirmed the judgment of the Court of Private Land Claims and held that the Ayuntamiento was not authorized under Article 4 of the Colonization Law of January 4, 1823, to make a grant of land outside the boundaries of the El Paso del Norte Town Grant. The Court noted that Mexican villages usually received a town grant of four square leagues. The Court, therefore, concluded that the Heath Grant, which was located approximately 33 miles north of the town and covered twenty‑five leagues, could not possibly be embraced within the town grant. The Court further found that the Heath Grant, which had been made subject to the approval of the Provincial authorities, had subsequently been rejected. The Court was also of the opinion that the failure of Heath and his successors to assert their claim for more than 70 years after their expulsion from Mexico, raised a presumption against the contention that an absolute grant had been made by the Ayuntamiento in April, 1823. The Court concluded by holding that the United States was not obligated under its Treaties of 1848 and 1853 to recognize any claims to land which had been repudiated by the Government of Mexico and subsequently regranted to innocent third parties.[9]
It is interesting to speculate as to what role this Anglo‑American Colony would have played in the history of the Southwest if it had been permitted to remain in Mexico. If nothing else, it would have undoubtedly raised the standard of living in this isolated area and afforded the terror-stricken Mexican settlements of the frontier a measure of relief and protection against the savage attacks of the hostile Indians.
[1] El Bracito was the Spanish name for one of the regular campsites on the Camino Real. It was located about 33 miles north of El Paso del Norte in a little bend or arm of the Rio Grande. The first known reference to El Bracito is contained in the diary of Nicolas de Lafora, who mentions that he camped there on August 7, 1766. Kinnaird, The Frontiers of New Spain 85 (1958). Juan Antonio Garcia occupied the lands at El Bracito from 1805, until the summer of 1822 when the Indians forced him to withdraw. The Bracito Grant No. 6 (Mss., Records of the S.G.N.M.).
[2] Rockwell, A Compilation of Spanish and Mexican Law, 617‑620 (1851)
[3] Cessna v. United States, No. 49 (Mss., Records of the Ct. Pvt. L. Cl.).
[4] Ibid.
[5] Ibid.
[6] Archive No. 410 (Mss., Records of the A.N.M.)
[7] 2 Journal 384‑385 (Mss., Records of the Ct. Pvt. L. Cl.).
[8] Brief for Appellant, Cessna v. United States, 169 U.S. 165 (1898).
[9] Cessna v. United States, 169 U.S. 165 (1898).
John Heath Grant; J.J. Bowden's Research on Land Grants in New Mexico