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BANCROFT 
 LIBRARY 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 

 MEXICANTl/LES 
 
 IN THE 
 
 STATES AND TERRITORIES 
 
 OF THE 
 
 UNITED STATES 
 
 BY 
 
 J. ALEXANDER FORBES, 
 
 Keeper of Spanish flrct\ives in U. S. Sur. Gen'ls Office 
 
 and for ir\any years in tt\e en\ploy of tl^e Govern- 
 
 nr\ent of tl\e U. S. in connection iA>itt\ Spanish 
 
 and Mexican Land Grants in California. 
 
 SAN FRANCISCO, CALIFORNIA 
 
 [COPYRIGHTED] 
 
 SAN FRANCISCO: 
 W. A. WOODWARD & Co., PRINTERS, 12 Sutter Street, 
 
J Alexander Forlx 
 
 Official Gav. Translat ,,, Keeper of 
 
 Goi/t. Archives. 
 
 5-4.7*8- 
 
 TITHES 
 
 In the States and Territories of the United States. 
 
 The King of Spain acquired dominion over the lands 
 now contained within the bounds of Arizona, New 
 Mexico and Colorado, California, Nevada, Utah and 
 Wyoming, by conquest from the aborigines (Indians) 
 living in a savage state in that locality. 
 
 These aborigines had no custom or usage in regard 
 to title to lands although not all were nomadic in their 
 habits; some were agriculturalists, some built towns, but 
 none of them had any settled law recognizing what is 
 called title to lands ; they simply took and held possession 
 from time to time of what they wanted individually or 
 collectively. In the expedition of Col. Don Juan Bautista 
 de Anza, who came by order of the Spanish Viceroy 
 to settle the port of San Francisco, in the year 1774, 
 an examination was made of the Casas Grandes, build- 
 ings said to have been erected by the ancestors of the 
 Indians now inhabiting Arizona, i. e. Pimas, Papagoes, 
 and the Gila tribes. There De Anza discovered the im- 
 mense ditches evidently at one time intended to irri- 
 gate the entire plain. The Apaches have no kindred 
 with the above mentioned tribes, having simply been 
 pushed from their Eastern homes by other tribes, and 
 the natural course of white immigration in later years. 
 
 Pu 
 
At the time the Spaniards conquered New Spain, or 
 the southern portion of this continent, a code was 
 promulgated by the Spanish Crown called the Recopi- 
 lacion de Indias. applying to the territory in question 
 and expressly respecting the rights of the aborigines 
 to the soil. A 
 
 These rights were, in brief: that they should not be 
 disturbed wherever they had fixed possessions; to 
 which end the Spanish Crown ordered Indian commu- 
 nities to be formed, and sent missionary priests to con- 
 
 A. As to Indians' rights, see; 
 
 The first law given in Cigales on the 2ist March, 1551, by Charles V., and 
 re-affirmed by Philip II., Law I, Title 2, B. 6, Rec. of Indias. 
 
 Law 8, Tille 3, Book 6, of the same Code. 
 
 Royal decree of June 4, 1687. 
 
 Royal decree July 12, 1695. 
 
 Ordinances Nos. 88 and 89 of Philip II., contained in tbe yth Chapter of the 
 same Code. 
 
 It is clear from the whole tenor of Spanish and Mexican Laws, that the In- 
 dians were entitled in equity, and by strict law, to all the lands they actually 
 possessed and cultivated, whenever such lands can be properly designated by 
 well-defined boundaries. Both Spain and Mexico have always acknowledged 
 this principle to be a just one. 
 
 See laws above cited and decree of President Benito Juares even as late as 
 September, 1867. 
 
 On February 23, 1781, Viceroy Martin de Mayorga published a decree of 
 l he audiencia prohibiting Indians from selling their real estate without license 
 from the proper authority. This remained in force until the Independence 
 of Mexico which made all inhabitants of the Mexican Nation equal before the 
 law. 
 
 The plan of Yguala adopted on the 24th of February, 1821, made Indians 
 Mexican citizens, etc. 
 
 The Treaty of Cordova, dated August 24, 1821, re-affirms the principle above 
 mentioned. 
 
 The decrees the of Mexican Congress of the 24th of P'ebruary, 1822, and 9th 
 of April, 1823, again reiterates the same principle. 
 
 The United States Supreme Court in United States i>. Ritch:e, 17 How., 525, 
 has held that Indians could purchase, hold and sell real estate under the Mex- 
 ican law. 
 
 All Spanish legislation on the subject shows the care and protection given to 
 the Indians by the Crown. 
 
 For further information see Royal decrees July 12, 1695; June 5, 1811; Feb- 
 ruary 9, 1811; March 13, 1811. 
 
 
gregate the Indian tribes in fixed localities, the seats 
 or headquarters of which were called Missions. 
 Within the districts so formed no Spanish subject or 
 stranger was allowed to acquire title to lands without 
 the consent of the missionary fathers in charge and 
 the Indians of the community. By Royal Decree of 
 Sept. 13, 1813, and Aug. 17, 1833, all Missions were 
 secularized, z. e. the monastic dominion of the priests 
 over the Indian communities ceased, and in its place 
 came the conversion of those Missions into Indian 
 Pueblos or Towns with a Municipal Government by 
 magistrates elected by the Indians themselves, subject 
 however to regulation by the Government. 13 
 
 Under both of these forms of Government the 
 aborigines were only allowed the right to .possess 
 and cultivate the lands in community, but had no indi- 
 vidual rights therein. Each community of Indians 
 that reached a population of 400 inhabitants was 
 allowed two square leagues of land and no more, but 
 this was not in fee, only for the time being and subject 
 to divestment by the Crown at any time. Then 
 followed in 1821 and 2, the jurisdiction of the Mexican 
 Empire which preserved the same laws. This condi- 
 
 B. With reference to Pueblos: 
 
 See Art. I and 2, Title II, of the Regulation of Presidios (Garrisons), dated 
 September 10, 1792, and Article 50 of the ancient regulation of the Viceroy 
 Marquis of Casapuerte, dated April 20, 1729, that was ordered to be observed by 
 Royal order of the I5th May, 1779. 
 
 See also Laws 10, Title 5; 2 and 9, Title 7; I, 2 and 3, Title 10; Book 4, 
 the Recopilacion de Indias. 
 
 See also Law I, Title 3, Book 5, and Laws 5, et seq., Title 17, Book 4, of the 
 same code. 
 
tion of thing's continued until the formation of the 
 first Mexican Republic, in i823. c 
 
 Some Arizona lands stand on a different footing from 
 those in California and New Mexico, being derived by 
 grant from the independent State of Sonora. Lands 
 in Sonora were granted upon sale to the highest bid- 
 der made by the State Treasurer, by virtue of the pro- 
 visions of the iith Article of the law of the 4th of 
 August, 1824, in which was granted by the Federal 
 Government of Mexico to the State of Sonora all the 
 revenue not thereby reserved to the general govern- 
 ment. 
 
 C. Manner of granting lands. 
 
 Under the Spanish Regime Mercedes or grants of land were made to com- 
 munities as well as to individuals, and upon the application of the interested 
 party or parties, due notice was given to the residents of the neighboring 
 localities and there being no objection either from the Indians or Spaniards 
 titles was issued to the applicant making a record of the same in the book en- 
 titled " Libro de Gobernacion" that was kept in the city of Mexico. 
 
 Subsequently petitions were addressed to the President of the Royal Au- 
 diencia of the District within which the land was situated; there were only two 
 Audiencias, one at the city of Mexico and the other at Guadalajara. 
 
 Subdelegados, as they were termed, or commissioreasof the same Audiencias 
 were sent out to make grants and th2se would receive and pass upon applica- 
 tions presented to them. Under the ordinance of Intendentes of December 4, 
 1786, the subject matter was confided to the Intendente General, who simply was 
 authorized to sell the land applied for to the highest bidder. 
 
 Grants made in New Mexico and Colorado must have been recorded in Santa 
 Fe and the city of Mexico. 
 
 Grants made in Arizona should be found recorded either in Chihuahua or 
 Hermosillo, in which localities the ancient Archives of Internal Provinces seem 
 to exist. 
 
 In August 22, 1776, Don Theodora de Croix was appointed Commandant 
 General of Sinaloa, Sonora, Californias, New Biscay, Coahuila, Texas and New 
 Mexico. He resided in Arispe, Sonora. No power seems to have been given to 
 him to sell lands; but in June 21, 1786, Don Jacobo Ygasle y Loyola ratifies do- 
 nations made by Governor Don Pedro Fages, in 1784, to Manuel P. Nieto, Juan 
 Jose Domingues and Jose Ma Verdargo. In California subsequently Don Pedro de 
 Nava, Commandant General, also, by his order of March 22, 1791, authorized the 
 Captains of the several Presidios to make grants of lands to individuals for 
 meritorious services. 
 
The public land within the state was one source of 
 revenue. A law of the State of Sonora, passed May 
 2Oth, 1825, prescribed the manner of acquiring such 
 public land. 
 
 The State Treasurer was required to duly advertise 
 the land for sale for a time specified, sell same to the 
 highest bidder, give him a written grant, etc. The 
 magistrates were required to give him judicial posses- 
 sion and protect him in the full enjoyment of the same. 
 
 On August 1 8th, 1824, the Congress of the Mexi- 
 can Republic passed a law providing for the coloniza- 
 tion of the territories of the Republic, of which the 
 land comprised within the present geographical limits 
 of California, Nevada, Utah, Wyoming, Colorado, New 
 Mexico and Arizona was a part. 
 
 On November 21, 1828, regulations were made and 
 promulgated by the Executive Government of Mexico 
 for carrying into effect this former law. Under the 
 above provisions all subsequent titles were issued in 
 said states and territories. 
 
 As an incentive to colonization of vacant lands the 
 Governors of the several territories were authorized 
 to make grants of lands with the approval of the 
 Territorial Deputation, and later the Departmental 
 Assembly, which consisted of a body elected by the 
 Mexican citizens of the territory in which they resided. 
 
 Upon receipt of such grant the grantee was required 
 to present his title papers to a judicial officer, gener- 
 ally the Alcalde of the nearest town, who was required 
 
to give him judicial possession, in doing which, a lo- 
 cation of the boundaries was made and recorded. 
 
 A provision was made by law for the recording of 
 these grants, and proceedings leading up to them, in 
 the office of the Secretary of State of the Department. 
 In all cases the Governors preserved a memorandum 
 of the fact of granting. Besides these grants by the 
 Territorial Governors, the Spanish Crown, during its 
 dominion, and the Empire and Republic, during theirs, 
 made grants from time to time to their subjects for 
 meritorious services. These were a separate charac- 
 ter of grants, but the record was preserved in same 
 way. Under these conditions the inhabitants of the 
 states and territories in question held their lands on 
 February 2, 1848, when the Treaty of Guadalupe 
 Hidalgo was concluded at that city between the 
 United States of America and the United Mexican 
 States, the ratifications of which were exchanged May 
 3<Dth, 1848. This treaty fixed a boundary line be- 
 tween the two governments, by which certain terri- 
 tory, including the present California, Nevada, Utah, 
 Wyoming, Arizona, New Mexico and Colorado be- 
 came the territory of the United States. 
 
 The treaty stipulates in Articles VIII and IX for 
 the freedom and protection of the Mexican citizens 
 inhabiting the territory ceded in the enjoyment of 
 their property, and also expressly provided that the 
 rights of non-resident Mexicans to property within 
 said territory should remain inviolate, and that the 
 said owners, their heirs or Mexicans acquiring the 
 
same thereafter by contract, should enjoy with respect 
 to it, guarantees equally ample as if the same belonged 
 to citizens of the United States. Without any treaty 
 stipulation the property of Mexicans thus situated 
 would doubtless have been entitled by the law of 
 nations, to such protection from the government of the 
 United States. Soon after this the U. S. Congress 
 created a Commission in California to pass upon the 
 validity of grants in the territory ceded, with right of 
 appeal to District Court and then to Supreme Court. 
 A portion of the lands in the territory thus added to 
 the United States, claimed by individuals and corpora- 
 tions, rests on incomplete and imperfect grants; on pro- 
 ceedings of the Spanish or Mexican authorities, which 
 may or may not have constituted the proper or prelim- 
 inary steps toward a perfect title, and which, if the terri- 
 tory had remained under Mexican rule, might or might 
 not have been recognized by those authorities as suffi- 
 cient to entitle the claimant to a full and perfect grant. 
 On Nov. 25, '53, the Mexican Government by law an- 
 nulled all grants not then approved and properly record- 
 ed. Subsequently, Dec. 30, 1853, by a treaty called 
 the Gadsden purchase, the United States acquired more 
 land to the south of the Gila River and grants stood 
 upon substantially the same terms as by the Treaty 
 of Guadalupe Hidalgo, except that Mexicans seeking 
 to protect their titles were required to have recorded 
 their grants at the City of Mexico in accordance with 
 said law of that country, passed Nov. 25, 1853. By 
 the terms of these treaties as well as by the law of 
 
8 
 
 nations, an obligation was imposed on the government 
 of the United States to do, in such cases, that which 
 in the common course of proceedings of the Mexican 
 Government she would have done. This is a political 
 obligation which could not be properly performed by 
 our courts of justice acting in their ordinary judicial 
 capacity, and it was principally to perform this obliga- 
 tion in a manner convenient to claimants, that the 
 present Court was created by act of Congress of 
 March. 1891, though a separation of the public lands 
 from those of individuals was doubtless an important 
 object also. 
 
 It will be seen by consideration of the above out- 
 line, that the new Court will have ;o deal with the fol- 
 lowing classes of titles: 
 
 i st. Such as are still retained by religious persons 
 or bodies. 1 
 
 2nd. Such as are still held by Indian communities, 
 if any. 
 
 (The Indians holding in severalty are on the same 
 footing as Mexicans, having become citizens under the 
 laws of Mexico.) 2 
 
 3rd. Such as were obtained through grant upon 
 sale to the highest bidder by the State of Sonora. 
 
 4th. Such as were granted by Mexican authorities 
 to individual Mexican citizens for meritorious services, 
 or in aid of colonization to any one. 
 
 I. U. S. v. Ritchie, 17 Howard, p. 540. 
 
 U. S. v. Alemany, Bishop, U. S. District Court, Cal. 
 V. Wills' Cal. Titles, pp. 16 and 38. 
 2. U. S. v. Ritchie, 17 Howard, p. 540. 
 II. Wills' Cal. Titles, p. 3, et seg. 
 
5th. Such as were granted by the Spanish Crown. 
 
 6th. Such as have been acquired by individual citi- 
 zens of the United States, under our laws. 
 
 7th. Such as have been granted by the United 
 States to corporations. 
 
 8th. Such as have been acquired by corporations 
 under the law of eminent domain. 
 
 9th. Lands held by the United States for military 
 and other governmental purposes. 
 
 icth. The residue of Public Lands of the United 
 States. 
 
 Some of the most important legal features presented 
 in this character of litigation, involve: 
 
 Actual Possession. 3 
 
 The Doctrine of Abandonment and Laches. 4 
 
 Law of Evidence as to Boundaries. 3 
 
 Rule as to Proof of Foreign Laws, Usages and Cus- 
 toms. 6 
 
 Questions of Inheritance. 
 
 3. Smith's Case, 10 Peters, p. 330. 
 
 4. Hughes' Case, 13 Howard, p. i. 
 
 Ruggles v. De Tournon et al., 16 Howard, p. 242. 
 U. S. v. Sutler, 21 Howard, p. 170. 
 
 I. Wills' Cal. Titles, p. 478 to 487. 
 
 5. U. S. v. Lawton, 5 Howard, p. 10 to 29. 
 Menard's Heirs v. Massey, 8 Howard, p. 293. 
 Fossatt's Case, 20 Howard, p. 426. 
 
 II. Wills' Cal. Titles, pp. 150, 155, 174. 
 XI. Idem, p. i, ft seq. 
 
 6. Laws in existence before Treaty to be judicially noticed. 
 U. S. v. Perot, 98 U. S., p. 428. 
 
 U. S. v. Arredondo, 6 Peters, p. 714. 
 U. S. v. Clark, 8 Peters, p. 450. 
 Strother v. Lucas, 12 Peters, p. 436. 
 U. S. v. Turnei, II Howard, p. 668. 
 
1O 
 
 Conditions Annexed to Grants. 7 
 
 The Probative Force of Recitals in Foreign Grants. 8 
 
 Citizenship and Treaties. 9 
 
 Learned and exhaustive discussions of these sub- 
 jects will be found in the briefs of Caleb Gushing, who 
 represented the government in the Supreme Court 
 in the Florida, Louisiana and California cases; and of 
 William Carey Jones, Halleck, Peachy & Billings, who 
 represented claimants before the California Land Com- 
 mission, and in the Supreme Court; also in the case on 
 appeal from Gal. Dist. Ct. of U. S. v. Cruz Cervantes. 10 
 
 JURISDICTION OF THE COURT. 
 
 We do not claim as a settled proposition of law 
 that the Court can determine the rights of con- 
 testants who do not deraign title from a Mexican or 
 
 Subject in general. 
 
 I. Wills' Cal. Titles, pp. 62, et seq., pp. 277, 328. 
 
 Text of Mexican Colonization Law of 1824 and decree of 1828. 
 
 I. Wills' Cal. Titles, pp. 70, et seq., and p. 335. 
 
 Definition of complete grant under Spanish Laws. 
 
 Menard's Heirs v. Massey, ubi supra. 
 
 I. Wills' Cal. Titles, p. 90; II. Idem., p. 155. 
 
 Distinction between private and empressario grants. 
 
 U. S. v. Bolton, 23 Howard, 341. 
 
 XVI. Wills' Cal. Titles, p. 3. 
 
 7. Fremont's Case, 17 Howard, p. 564. 
 Cervantes' Case, 18 Howard, p. 555. 
 U. S. v. Larkin, Idem., p. 563. 
 
 I. Wills' Cal. Titles, pp. 90 to 100, 119, 335. 
 
 8. Hornsby v. U. S., 10 Wall., p. 224. 
 
 9. Soulard v. U. S., 4 Peters, p. 511. 
 
 I. Wills' Cal. Titles, p. 62, et seq. 
 Table of ca.-es decided under Treaties. 
 I. Wills' Cal. Titles, p. 332, et seq. 
 
 10. The following text books are also valuable: 
 
 Schmidt's Civil Law of Spain and Mexico; Whites' Recopilacion; Galvan's 
 Coleccion de Decretos; Las Partidas, translated by Moreau & Carleton; Rock- 
 well's Spanish and Mexican Law of Min^s and Real Estate. 
 
1 1 
 
 Spanish grant. But certainly, the Act of Congress 
 intends that the Court shall listen to them as much as 
 it does to the representative of the United States, so 
 that the Mexican title shall be finally settled: i. e., its 
 value as an evidence of ownership finally defined. 
 
 After such settlement it may be the province of the 
 Land Office, the United States District or Circuit Court 
 or the State Courts, to determine within their several 
 jurisdictions who shall have the present possession and 
 enjoyment of the lands in question. 
 
 At all events it will be safe for all persons within 
 the territorial jurisdiction of the new Court having 
 rights in conflict with claimants under Spanish or Mex- 
 ican grants, to appear and protect their rights, as ad- 
 vised by counsel. 
 
 In the consideration of the questions that will arise 
 before this Court, our private collection of prece- 
 dents in Florida and Louisiana, briefs of eminent 
 counsel, opinions of the commissions appointed for a 
 similar purpose in California in 1851, extracts from the 
 evidence, oral and documentary, offered before them, 
 translations of documents and foreign laws and treatises 
 used in their proceedings and decisions of United 
 States District and Supreme Courts in leading cases on 
 appeal, will be found invaluable. These will be care- 
 fully digested and indexed by the time the Court 
 sits. 
 
 Meanwhile it will be profitable to consider what 
 evidence should be collected by the claimant, and what 
 rules of law are to be applied thereto. Of these 
 
12 
 
 subjects we have made close study, and hope to 
 place the result at the disposal of those seeking the 
 aid of said Court when required. 
 
 J. ALEXANDER FORBES. 
 San Francisco, Aug. i, 1891.