Contra Costa County CA Archives History - Books .....Mexican Grants, Part 2 1882
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Book Title: History Of Contra Costa County, California

V.

IN ALL LARGE GRANTS, OR GRANTS OF IMPORTANT OR VALUABLE SITES, OR OF MINES,
WHETHER OR NOT THEY WERE SURVEYED AND OCCUPIED UNDER THE GOVERNMENT OF SPAIN OR
MEXICO, AND WHEN PUBLICITY WAS FIRST GIVEN TO SUCH GRANTS?

   The first part of this inquiry is already answered, in the statement that, as
far as I am aware, there were never any surveys made in the country during its
occupation by either of the former governments. Most of the grants, however,
were occupied before, or shortly after they were made, and all, as far as I am
informed, except where the hostile Indian occupation prevented. In respect of
the grants to which I have made any reference, I did not learn that there had
been any delay in giving publicity to them.

   Having met, sir, as far as in my power, the several inquiries set forth in
the letter of instructions you were pleased to honor me with, my attention was
turned, as far as they were not already answered, to the more detailed points of
examination furnished me, with your approbation, by the Commissioner of Public
Lands. The very minute information contemplated by those instructions, it would
have been impossible, as you justly anticipated, to obtain in the brief time
proposed for my absence, even had it been accessible, in systematic archives and
records. My examination, moreover, was sufficient to show me that such minute
and exact information on many of the various heads proposed, is not attainable
at all; and that the only mode of approximating it must be through such measures
as will produce a general registration of written titles, and verbal proof of
possession where written titles are wanting, followed or accompanied by a
general survey. By such means only can an approximation be made to the minute
information sought of the character, extent, position and date, particularly of
the old grants in California.

   The first branch of the inquiries proposed by the instructions from the Land
Office, relate to "grants or claims derived from the Government of Spain."

   The chief local authority to grant lands in the province of California was,
ex officio, the military commandant, who was likewise Governor of the province;
and the principal recipients of grants, officers and soldiers as they retired
from service. The grants to the soldiers were principally of lots in and about
the presidios (military posts) or the pueblos (villages); to the officers, farms
and grazing lands in addition to such lots.

   There were, also, at different times, settlers brought from Sonora and other
provinces of New Spain (single men and families), and grants made to them;
usually of village lots, and to the principal men ranches in addition. The first
settlement at San Francisco was thus made; that is, settlers accompanied the
expedition thither, and combined with the military post. The pueblos of San Jose
and Los Angeles were thus formed. The Governor made grants to the retired
officers under the general colonization laws of Spain, but, as in all the remote
provinces, much at his own discretion. He had likewise special authority to
encourage the population of the country by making grants of farming lots to
soldiers who should marry the native bred women at the missions. The captains of
the presidios were likewise authorized to make grants within the distance of two
leagues, measuring to the cardinal points from their respective posts. Hence,
the presidios became in fact villages. The Viceroy of New Spain had also, of
course, authority to make grants in California, and sometimes exercised it. It
was pursuant to his order that presidios, missions and pueblos were severally
established, and the places for them indicated by the local authority. Under all
these authorities, grants were made; strictness of written law required that
they should have been made by exact measurements, with written titles, and a
record of them kept. In the rude and uncultivated state of the country that then
existed, and lands possessing so little value, these formalities were to a great
extent disregarded, and if not then altogether disregarded, the evidence of
their observance in many cases was lost. It is certain that the measurements
even of the grants of village lots were very unexact and imperfect; and of
larger tracts, such as were granted to the principal men, no measurement at all
attempted, and even the quantity not always expressed, the sole description
often being by a name descriptive, in fact or by repute, of the place granted.
The law of custom, with the acquiescence of the highest authorities, overcame in
these respects  the written law. Written permits and grants were no doubt
usually given, but if any systematic records or memoranda of them were kept,
they have now disappeared, or I was not able to meet with them. In some cases,
but not in all, the originals no doubt still exist in the possession of the
descendants of the grantees; indeed, I have been assured there are many old
written titles in the country, of which the archives do not contain any trace.
But in other cases, no doubt, the titles rested originally only on verbal
permits. It was very customary in the Spanish colonies for the principal
neighborhood authorities  to give permission to occupy and cultivate lands, with
the understanding that the party interested would afterward, at a convenient
occasion, obtain his grant from the functionary above. Under these
circumstances, the grant was seldom refused, but the application for it was very
often neglected; the title by permission being entirely good for the purposes of
occupation and use, and never questioned by the neighbors. All these titles,
whatever their original character, have been respected during the twenty-six or
twenty-seven years of Mexican and local government. And whether evidenced now or
ever by any written title, they constitute as meritorious and just claims as
property is held by in any part of the world.  They were, in the first place,
the meager rewards for expatriation and arduous and hazardous public service in
a remote and savage country.    They are now the inheritance of the descendants
of the first settlers of the country, and who redeemed it from (almost the
lowest stage of) barbarism. Abstractly considered, there cannot be any higher
title to the soil.

   Many of the holders of old grants have taken the precaution to have them
renewed, with a designation of boundary and quantity, under the forms of the
Mexican law; and of these the proper records exist in the archives. To what
extent old titles have been thus renewed, could not be ascertained, for the
reason that there is no record of the old titles by which to make the comparison.

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

   The military commandant or governor had authority, by virtue of his office,
to make grants. He had, also, especial authority and direction to do so, in a
letter of instructions from the Viceroy, August 17, 1773, and entitled
"Instructions to be observed by the commandant appointed to the new
establishments of San Diego and Monterey." These instructions authorized (as
already noticed) the allotment of lands to Indians, either in community or
individually; but it is to be understood only of Indians who should be in charge
of the missions, and of the parcels of land within the mission settlements.
Article thirteen gave the commandant "equal authority, likewise, to distribute
lands to other settlers, according to their merit and comformably to the
compilation of laws concerning new conquests and settlements." That is,
according to the compilation of the "Laws of the Indias," which we know make
certain provisions of the most liberal character for the founding and
encouragement of new populations.

   Subsequently, without abrogating the general colonial laws, a special
Regulation was adopted, with the royal assent, for the government of the
Californias, and making special provision for the settlement of that province,
and the encouragement of the colonizers. This regulation was drawn in Monterey,
by Governor Don Felipe Neve, in 1779, and confirmed by a Royal cedula of October
14,1781. Its character and objects are shown in its title, namely "Rules and
directions for the Presidios of the Peninsula of California, erection of new
Missions, and encouragement of the Population, and extension of the
establishments of Monterey." The first thirteen articles relate to the presidios
and military. Title fourteen relates to the "Political Government and directions
for Peopling." After providing liberal bonuses to new settlers in respect of
money, cattle, and exemptions from various duties and burthens, this Regulation
prescribes: That the solares (house lots) which shall be granted to the new
settlers, shall be designated by the Governor in the places, and with the extent
that the tract chosen for the new settlement will allow, and in such manner that
they shall form a square, with streets conformably to the laws of the kingdom;
and by the same rule shall be designated common lands for the pueblos, with
pasturage and fields for municipal purposes (propios). That each suerte
(out-lot), both of irrigable and unirrigable land, shall be two hundred varas
square; and of these suertes, four (two watered and two dry) shall be given with
the solar, or house lot, in the name of the King, to each settler.

   These rules relate to the formation of villages and farming settlements, and
are exclusive of the extensive ranchos—farms and grazing lands— allotted to
persons of larger claims or means, sometimes direct from the Viceroy, usually by
the local Governor.

   The acts of the Spanish Cortes, in 1813, heretofore quoted, may also be
referred to as a part of the authority under which grants might be made in
California during the continuance of the Spanish Government and prior to the
colonization laws of Mexico, and afterwards, indeed, as far as not superceded by
those laws.

   The second point of inquiry in the instructions furnished me from the Land
Office, relating to grants made under the Mexican Government, is already met in
most respects, as far as was in my power to meet it, in the early part of this
report. The "authority of the granting officers, and their powers for alienating
the public domain," were derived from appointment by the Central Government, and
from the general colonization laws and regulations of the Republic. There is
little room for discrimination between such as are perfect titles and such as
are inceptive and inchoate. A grant by the territorial or (departmental)
governors within the extent of eleven sitios constituted a valid title, and with
the approbation of the Departmental Assembly, a perfect one. After the
Governor's concession, however, it could not with propriety be termed merely
inceptive, for, in fact, it was complete until the Legislature should refuse its
approbation, and then it would be the duty of the Governor to appeal for the
claimant to the Supreme Government. I am not aware that a case of this kind
arose. The difficulties, already explained, of ascertaining to what grants the
legislative approbation was accorded, and from what it was withheld, the
impossibility, in fact, of ascertaining in many cases, coupled with the fact
that that approbation was so seldom refused, and that the party had still an
appeal in case of refusal, would seem to render that provision of the law of
those grants nugatory as a test of their merits.

   The third inquiry touching "grants made about the time of the revolutionary
movements in California, say in the months of June and July, 1846," is chiefly
answered in what is said concerning the actual condition of the missions, and
the grants of Fort Joaquin, at the mouth, and Alcatraz Island, inside the
entrance of the Bay of San Francisco. In addition to these, the large island of
San Clemente, I understood, was granted about that time, say in May, 1846. I
found nothing in the archives concerning it. I do not think there were other
grants to attract particular attention, except the proposed great Macnamara
grant or contract, of which the principal papers are on file in the State
Department, and have been printed in the Congressional Documents.

   In the second branch of the last mentioned inquiry, namely, concerning any
"grants made subsequent to the war," I suppose the intent is, grants, if any,
made after the reduction of the country by the arms of the United States. There
are, of course, no Mexican grants by the Mexican authorities which purport to
have been issued subsequent to that time. The inquiry must relate, therefore,
either to supposed simulated grants, by persons formerly in authority there, or
to whatever may have been done, in respect of the domain, by or under the
American authorities. It is believed in the country that there are some
simulated grants in existence; that is, some papers purporting to be grants
which have been issued since the cessation of the Mexican Government, by persons
who formerly, at different times, had the faculty of making grants in that
country. It would be impossible, however, to make a list of them, with the
particulars enumerated in the instructions; for, if there be any such, they
would, of course, not be submitted for public inspection, or in any way seek the
light. But I believe it would not be difficult for a person skilled in the
grants in that country, and acquainted with the archives and the facts to be
gathered from them, to detect any simulated paper that might be thus issued
after the person issuing it had ceased from his office. The test, however, would
necessarily have to be applied to each case as it arose. No general rule, I
believe, can be laid down.

   Recurring, then, to the other point which I suppose the inquiry to relate to.
The most considerable act, affecting the domain, had subsequent to the accession
of the American authorities in California, was a "decree" made by General
Kearny, as Governor, under date March 10, 1847, as follows:

   "I, Brigadier-General S. W. Kearny, Governor of California, by virtue of
authority in me vested by the President of the United States of America, do
hereby grant, convey and release unto the town of San Francisco, the people, or
corporate authorities thereof, all the right, title and interest of the
Government of the United States, and of the Territory of California, in and to
the beach and water lots on the east front of said town of San Francisco,
included between the points known as Rincon and Fort Montgomery, excepting such
lots as may be selected for the use of the United States Government by the
senior officers of the army and navy now there; provided the said ground hereby
ceded shall be divided into lots, and sold by public auction to the highest
bidder, after three months' notice previously given; the proceeds of said sale
to be for the benefit of the town of San Francisco."

   Pursuant to the terms of this paper, what are termed "government
reservations" were made, both within and outside the limits specified, and the
remainder of the lots designated have been since in great part sold by the town
of San Francisco. These lots extend into the shallow water along the beach of
San Francisco, and are very suitable and requisite for the business purposes of
that growing city. The number of four hundred and forty-four of them were sold
in the Summer ensuing the "decree," and in December last, I have learned since
my return, the remainder, or a large portion of them, were disposed of by the
corporation. But little public use has been made of what are denominated the
"government reservations." Portions of them are reputed to be covered by old
grants; portions have been settled on and occupied by way of pre-emption, and
other portions, particularly "Rincon Point," have been rented out, as I am
informed, to individuals, by the late military government.

   Under the above decree of General Kearny, and the consequent acts of the
authorities of San Francisco, such multiplied, diversified and important private
interests have arisen, that, at this late day, no good, but immense mischief
would result from disturbing them. The city has derived a large amount of
revenue from the sale of the lots; the lots have been re-sold and transferred in
every variety of way, and passed through many hands, and on many of them costly
and permanent improvements have been made; improvements required by the business
and wants of the community, and which ought to give the makers of them an
equitable interest in the land; even without the faith of the Government implied
by leaving the act of its agent so long unquestioned. An Act of Congress,
relinquishing thus in the lawful mode the interest of the United States in those
beach and water lots, would seem to be only an act of justice to the city and to
lot-holders, and to be necessary to give that validity and confidence that ought
to attach to property of such great value and commercial importance.

   In regard to the "government reservations," so called where they may be in
private hands, whether under a former grant, or by occupancy and improvement,
the same equity would seem to call for at least a pre-emption right to be
allowed the holders, except for such small parts as may be actually required for
public uses. In regard to the places known as "Clark's Point," and "Rincon
Point," which are outside of the land embraced in General Kearny's decree, and
portions of which it is understood have been put in the hands of rentees;
perhaps the most equitable use that could be made of them (except, as before,
the parts needed for public uses), would he to relinquish them to the city, to
be sold as the beach and water lots have been; with due regard, at the same
time, to rights accruing from valuable improvements that may have been made upon
them, but repressing a monopoly of property so extensive and valuable, and so
necessary to the improvement, business and growth of the city.

   Other operations in lands which had not been reduced to private property at
the time of the cessation of the former government have taken place in and about
different towns and villages, by the alcaldes and other municipal authorities
continuing to make grants of lots and out-lots, more or less according to the
mode of the former government. This, I understand, has been done, under the
supposition of a right to the lands granted, existing in the respective towns
and corporations. Transactions of this nature have been to a very large extent
at San Francisco; several hundred in-lots of fifty varas square, and out-lots of
one hundred varas square, have been thus disposed of by the successive alcaldes
of the place since the occupation of it by the American forces, both those
appointed by the naval and military commanders, and those subsequently chosen by
the inhabitants.

   It is undoubtedly conformable to the Spanish colonial laws, that when
villages were to be established, there should be liberal allotments to the first
settlers, with commons for general use, and municipal lands (propios) for the
support and extension of the place—that is, to be rented, or otherwise
transferred, subject to a tax; and that the principal magistrate, in conjunction
with the ayuntamiento, or town council, should have the disposal of those town
liberties, under the restrictions of law, for the benefit of the place, and the
same was the practice in California, under the Mexican Government. It is not
always so easy to determine within what limits this authority might be
exercised; but in new communities, whether the settlement was founded by an
empresario (contractor) or by the government, the allotments were always on a
liberal scale, both for the individuals and the village. A very early law (law
6, tit. 3, lib. 4, Recop. de Indias) fixes "four leagues of limits and land (de
termino y territorio) in square or prolonged, according to the nature of the
tract," for a settlement of thirty families; and I suppose this is as small a
tract as has usually been set apart for village uses and liberties, under the
Spanish or Mexican Government in New Spain; sometimes much more extensive
privileges have no doubt been granted. The instructions of 1773 to the
commandant of the new posts, authorizes pueblos to be formed, without specifying
their limits, which would, of course, bring them under the general law of four
leagues. The Royal Regulation of 1781, for the Californias, directs suitable
municipal allotments to be made, "conformable to the law;" and this likewise
must refer to the law specifying four leagues square.

   The letter of instructions of 1791, authorizing the captains of presidios to
make grants, in the neighborhood of their respective posts, specifies the same
quantity, to wit: "the extent of four common leagues, measured from the center
of the presidio square, two leagues in each direction, as sufficient for the new
pueblos to be formed under the protection of the presidios."

   The Mexican laws, as far as I am aware, make no change in this rule; and the
colonization regulations of 1828, provide (Art. 13) that the reunion of many
families into a town shall follow in its formation, policy, etc., the rule
established by the existing laws for the other towns of the Republic."

   From all these, and other acts which might be quoted, it would seem that
where no special grant has been made, or limits assigned to a village, the
common extent of four leagues would apply to it; it being understood, however,
as the same law expresses, that the allotment should not interfere with the
rights of other parties. The presidio settlements, under the order of 1791, were
certainly entitled to their four leagues; the right of making grants within the
same only transferred from the presidio captains to the municipal authorities
who succeeded him, as is conformable to Spanish and Mexican law and custom. This
was the case under the Spanish Government; and I am not aware that the principle
has been changed, though no doubt grants have been made to individuals which
infringed on such village limits. The .Territorial Deputation of California,
however, by an act of August 6, 1834, directed that the ayuntamientos of the
pueblos should "make application for common and municipal lands (ejidos y
propios) to be assigned them." Wherever it shall appear that this was done, the
town, I suppose, could only now claim what was then set apart for it. Where it
was omitted or neglected, custom, reputed limits, and the old law, would seem to
be a safe rule.

   As to the point now under consideration, that of San Francisco, I find that
in the acts of the Departmental authorities the settlements in and about the
presidio were styled "the pueblo of San Francisco," and the particular place
where the village principally was and the city now is, "the point of Yerba
Buena." The local authorities, as its alcalde, or justice of the peace, were
termed those of the pueblo of San Francisco. Its privileges were not, therefore,
at any time limited to the point of Yerba Buena. Originally, probably, it had
boundaries in common with the mission of Dolores, which would restrict it in its
four leagues; but after the conversion of the mission into a pueblo, the
jurisdiction of the authorities of San Francisco was extended, and special
license given to its principal magistrate to grant lots at the mission. San
Francisco is situated on a tongue or neck of land lying between the bay and the
sea, increasing in breadth in a southerly direction. A measurement of four
leagues south from the presidios would give the city, in the present advanced
value of property, a magnificent corporate domain, but not so much as was fairly
assignable to the precincts of the presidio under the order of 1791, nor so much
as all new pueblos are entitled to under the general laws of the Indias. There
are private rights, however, existing within those limits, apart from any grants
of the village authorities, which ought to be respected; some through grants
from the former government; some by location and improvement, a claim, both
under our own law and custom and under the Spanish law, entitled to respect. To
avoid the confusion—the destruction—that would grow out of the disturbing of the
multiplied and vast interests that have arisen under the acts of the American
authorities at San Francisco; to give the city what she would certainly have
been entitled to by the terms of the old law, what she will need for the public
improvements and adornments that her future population will require, and what is
well due to the enterprise which has founded in so brief a space a great
metropolis in that remote region, perhaps no better or juster measure could be
suggested than a confirmation of past acts, a release of government claims to
the extent of four leagues, measuring south from the presidio, and including all
between sea and bay, with suitable provision for protecting private rights,
whether under old grants or by recent improvements, and reserving such sites as
the government uses may require.

   By the authorities of the village of San Jose, there have been still larger
operations in the lands belonging, or supposed to belong, to the liberties of
that town. The outlands there, as I learned, have been distributed in tracts of
three to five hundred acres.

   The pueblo of San Jose was founded November 7, 1777, by order of Felipe de
Neve, then military commandant and governor. The first settlers were nine
soldiers and five laboring men or farmers, who went thither with cattle, tools,
etc., from San Francisco, where had been established the year before, by order
of the Viceroy, the presidio and the mission of Dolores. These persons took
possession, and made their settlement "in the name of his Majesty, making out
the square for the erection of the houses, distributing the solares (house lots)
and measuring to each settler a piece of ground for the sowing of a fanega of
maize (two hundred varas by four hundred), and for beans and other vegetables.*
Subsequently, the Regulation of 1781, allowing to the new settlers each four
lots of two hundred varas square, besides their house lots, was no doubt applied
to this village. It was designed for an agricultural settlement, and, together
with the pueblo of the south (Los Angeles), received constantly the favor and
encouragement of the government, with the view of having sufficient agricultural
produce raised for the supply of the military posts. Both villages are situated
in fertile plains, selected for their sites with that object. In a report or
information, made by the Governor, Don Pedro Fages, in February, 1791, to his
successor, Governor Romeu, the encouragement of the two pueblos is the first
topic referred to:

   1. "Being (says Governor Fages) one of the objects of greatest consideration,
the encouragement of the two pueblos of civilized people, which have been
established, the superior government has determined to encourage them with all
possible aids, domiciliating in them soldiers who retire from the presidios, and
by this means enlarging the settlement.

   2. "By the superior order of April 27, 1784, it is ordered that the grains
and other produce, which the presidios receive from the inhabitants of the two
pueblos, shall be paid for in money, or such goods and effects as the
inhabitants have need of.

   3. "The distribution of lots of land, and house lots, made with all possible
requisite formalities, with designation of town liberties, and other lands for
the common advantage, as likewise titles of ownership given to the inhabitants,
were approved by the Senor Commandante General, the 6th February of the present
year of 1784."

* Noticias de Nueva California, by the Rev. Father Palou; MSS., Archives of Mexico.


   There are also records of families being brought at the government expense,
from the province of Sonora, specially to people the two pueblos. Both these
villages—being thus objects of government favor and encouragement—claim to have
been founded with more extensive privileges than the ordinary village limits;
and I have no doubt, from the information I received, that such was the case.

   The village of San Jose had a dispute of boundary as early as the year 1800,
with the adjoining mission of Santa Clara, and which was referred the following
year to the Government of Mexico. The fact is noted in the index to California
papers in the Mexican archives, but I did not find the corresponding record.
There is likewise in the book of records marked "1828," in the archives at
Monterey, an outline of the boundaries claimed by the pueblo at that time. But
at a later period (in 1834, I believe), there was legislative action upon the
subject, in which, as I understand, the boundaries were fully agreed upon. Some
documents relating to this settlement are in the archives at San Jose, and also
in the territorial archives. My time did not permit me to make a full
investigation of the question of those boundaries, nor did I think it necessary,
because, at all events, they can only be definitely settled by a survey, the
same as private estates. My instructions, however, call for a discrimination
between acts done "with legal formalities," and such as are "without legal
sanction." It is therefore proper for me to say that I do not know of any law
which would authorize the distribution of town property in California in lots
measured by hundreds of acres; such distribution, in fact, would seem rather to
defeat the ends for which town grants are authorized by the Spanish law. Perhaps
an act to authorize the limits of the town to be ascertained by survey, and to
leave the question of the validity of those recent large grants within the
limits of the same, to be determined between the holders, and the town in its
corporate capacity, would be as just and expedient as any other mode.

   In and about the town of Monterey, likewise, there were large concessions, as
I understood, and some including the sites of forts and public places, made by
the magistrate appointed there after the accession of the American authority.
The limits of this town, also, I think, depend on an act of the territorial
legislature, and may be ascertained by an authorized survey.

   The city of Los Angeles is one of the oldest establishments of California,
and its prosperity was in the same manner as that of San Jose', an object of
Government interest and encouragement. An Act of the Mexican Congress of May 23,
1835, erected it into a city, and established it as the capital of the
territory. The limits which, I understood, are claimed as its town privileges,
are quite large, but probably no more than it has enjoyed for sixty years, or
ever since its foundation. The grants made by this corporation since the
cessation of the former government, have been, as far as I learned, quite in
conformity with the Spanish law, in tracts such as were always granted for house
lots in the village, and vineyards and gardens without, and in no greater number
than the increase of population and the municipal wants required.

   The only provision that seems to be wanting for the pueblo of Los Angeles is
for the survey and definition of its extent, according to its ancient recognized
limits. The same remark, as far as I have learned, will apply to the remaining
towns of the country, established under either of the former governments.

   The remarks made in a previous part of this report in relation to the
missions cover to a good degree the substance of that branch of the inquiries
proposed by the Commissioner of the Land Bureau. I have already stated that
originally the "mission lands" may be said to have been co-extensive with the
province, since, nominally, at least, they occupied the whole extent, except the
small localities of the presidios, and the part inhabited by the wild Indians,
whom and whose territory it was their privilege to enter and reduce. Among the
papers accompanying this report is included a transcript of their recorded
boundaries, as stated in a record book heretofore noticed. It will be seen from
the fact first mentioned of their original occupation of the whole province, and
from the vast territories accorded to their occupation, as late as the year
1828, how inconsistent with any considerable peopling of the country would have
been any notion of proprietorship in the missionaries.

   I am also instructed to "make an inquiry into the nature of the Indian Rights
[in the soil], under the Spanish and Mexican governments."

   It is a principle constantly laid down in the Spanish colonial laws, that the
Indians shall have a right to as much land as they need for their habitations,
for tillage, and for pasturage. Where they were already partially settled in
communities, sufficient of the land which they occupied was secured them for
those purposes.* If they were wild and scattered in the mountains and
wildernesses, the policy of the law, and of the instructions impressed on the
authorities of the distant provinces, was to reduce them, establish them in
villages, convert them to Christianity, and instruct them in useful
employments.+ The province of California was not excepted from the operation of
this rule. It was for this purpose especially, that the missions were founded
and encouraged. The instructions heretofore quoted, given to the commandant of
Upper California in August, 1773, enjoin on that functionary, that "the
reduction of the Indians in proportion as the spiritual conquests advance, shall
be one of his principal cares;" that the reduction made, "and as rapidly as it
proceeds, it is important for their preservation and augmentation, to congregate
them in mission settlements, in order that they may be civilized and led to a
rational life;" which (adds the instructions) "is impossible, if they be left to
live dispersed in the mountains."

* Recopilacion de Indias; laws 7 to 20, tit. 12, book 4. 
+ Ib., laws 1 and 9, tit. 3, book 6.

   The early laws were so tender of these rights of the Indians, that they
forbade the allotment of lands to the Spaniards, and especially the rearing of
stock, where it might interfere with the tillage of the Indians. Special
directions were also given for the selection of lands for the Indian villages,
in places suitable for agriculture and having the necessary wood and water.* The
lands set apart to them were likewise inalienable, except by the advice and
consent of officers of the government, whose duty it was to protect the natives
as minors or pupils.+

* Law 7, tit. 12, Recop. Indias; ib., laws 5 and 20, tit. 3, book 6.
+ Ib., law 27, tit. 6, book I. Pena y Pena, 1 Practica Forense Mejicana. 248,
etc. Alaman, 1 Historia de Mejico, 23-25.

  Agreeably to the theory and spirit of these laws, the Indians in California
were always supposed to have a certain property or interest in the missions. The
instructions of 1773 authorized, as we have already seen, the commandant of the
province to make grants to the mission Indians of lands of the missions, either
in community or individually. But, apart from any direct grant, they have been
always reckoned to have had a right of settlement; and we shall find that all
the plans that have been adopted for the secularization of the missions, have
contemplated, recognized, and provided for this right. That the plan of Hijar
did not recognize or provide for the settlements of Indians, was one of the main
objections to it, urged by Governor Figueroa and the territorial deputation.
That plan was entirely discomfited; all the successive ones that were carried
into partial execution, placed the Indian right of settlement amongst the first
objects to be provided for. We may say, therefore, that, however
mal-administration of the law may have destroyed its intent, the law itself has
constantly asserted the rights of the Indians to habitations and sufficient
fields for their support. The law always intended the Indians of the
missions—all of them who remained there—to have homes upon the mission grounds.
The same, I think, may be said of the large ranches—most, or all of which, were
formerly mission ranches—and of the Indian settlements or rancherias upon them.
I understand the law to be, that wherever Indian settlements are established,
and they till the ground, they have a right of occupancy in the land. This right
of occupancy, however—at least when on private estates —is not transferable; but
whenever the Indians abandon it, the title of the owner becomes perfect. Where
there is no private ownership over the settlement, as where the land it occupies
have been assigned it by a functuary of the country thereto authorized, there is
a process, as before shown, by which the natives may alien their title. I
believe these remarks cover the principles of the Spanish law in regard to
Indian settlements, as far as they have been applied in Calfornia, and are
conformable to the customary law that has prevailed there.*

    * Of course, what is here said of the nature of Indian rights does not refer
to titles to lots and farming tracts, which have bean granted in ownership to
individual Indians by the Government. These I suppose to be entitled to the same
protection as other private property.

   + This is not an estimate, it is an exact statement. The records of the
missions were kept with system and exactness; every birth, marriage, and death
was recorded, and the name of every pupil or neophyte, which is the name by
which the mission Indians were known; and from this record, an annual return was
made to the Government of the precise number of Indians connected with the
establishment.


   The continued observance of this law, and the exercise of the public
authority to protect the Indians in their rights under it, cannot, I think,
produce any great inconvenience; while a proper regard for long recognized
rights, and a proper sympathy for an unfortunate and unhappy race, would seem to
forbid that it should be abrogated, unless for a better. The number of
subjugated Indians is now too small, and the lands they occupy too insignificant
in amount, for their protection, to the extent of the law, to cause any
considerable molestation. Besides there are causes at work by which even the
present small number is rapidly diminishing; so that any question concerning
them can be but temporary. In 1834 there were employed in the mission
establishments alone the number of thirty thousand six hundred and fifty.+

   In 1842, only about eight years after the restraining and compelling hand of
the missionaries had been taken off, their number on the missions had dwindled
to four thousand four hundred and fifty, and the process of reduction has been
going on as rapidly since.

   In the wild and wandering tribes the Spanish law does not recognize any title
whatever to the soil.

   It is a common opinion that nearly all of what may be called the coast
country—that is, the country west of the Sacramento and San Joaquin
valleys—which lies south of and including the Sonoma District, has been ceded,
and is covered with private grants. If this were the case, it would still leave
the extensive valleys of these large rivers and their lateral tributaries almost
intact, and a large extent of territory—from three to four degrees of
latitude—at the north, attached to the public domain within the State of
California, beside the gold region, of unknown extent, along the foot-hills of
the Sierra Nevada. But while it may be nominally the case that the greater part
of the coast country referred to is covered with grants, my observation and
information convince me that when the country shall be surveyed, after leaving
to every grantee all that his grant calls for, there will be extensive and
valuable tracts remaining. This is explained by the fact that the grants were
not made by measurement, but by a loose designation of boundaries, often
including a considerably greater extent of land than the quantity expressed in
the title; but the grant usually provides that the overplus shall remain to the
Government. Although, therefore, the surveys, cutting off all above the quantity
expressed in the grant, would often interfere with nominal occupation, I think
justice would generally be done by that mode to all the interests concerned—the
holders of the grants, the Government, and the wants of the population crowding
thither. To avoid the possibility of an injustice, however, and to provide for
cases where long occupation or peculiar circumstances may have given parties a
title to the extent of their nominal boundaries, and above the quantity
expressed in their grants, it would be proper to authorize any one, who should
feel himself aggrieved by this operation of the survey, to bring a suit for the
remainder.

   The grants in California, I am bound to say, are mostly perfect titles; that
is, the holders possess their property by titles that, under the law which
created them, were equivalent to patents from our Government; and those which
are not perfect—that is, which lack some formality, or some evidence of
completeness—have the same equity as those which are perfect, and were and would
have been equally respected under the Government which has passed away. Of
course, I allude to grants made in good faith, and not to simulated grants, if
there be any such, issued since the persons who made them ceased from their
functions in that respect.

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

   I think the rights of the Government will be fully secured, and the interests
and permanent prosperity of all classes in that country best consulted, by no
other general measure in relation to private property than an authorized survey
according to the grants, where the grants are modern, or since the accession of
the Mexican Government, reserving the overplus; or, according to ancient
possession, where it dates from the time of the Spanish Government, and the
written evidence of the grant is lost, or does not afford data for the survey.
But providing that in any case, where from the opinion of the proper law officer
or agent of the Government in the State, or from information in any way
received, there may be reason to suppose a grant invalid, the Government (or
proper officer of it) may direct a suit to be instituted for its annulment.



Additional Comments:
Extracted from:

HISTORY OF CONTRA COSTA COUNTY,
CALIFORNIA,
INCLUDING ITS GEOGRAPHY, GEOLOGY, TOPOGRAPHY, CLIMATOGRAPHY AND DESCRIPTION;
TOGETHER WITH A RECORD OF THE MEXICAN GRANTS; THE BEAR FLAG WAR; THE MOUNT
DIABLO COAL FIELDS; THE EARLY HISTORY AND SETTLEMENT, COMPILED FROM THE MOST
AUTHENTIC SOURCES; THE NAMES OF ORIGINAL SPANISH AND MEXICAN PIONEERS; FULL
LEGISLATIVE HISTORY OF THE COUNTY; SEPARATE HISTORY OF EACH TOWNSHIP, SHOWING
THE ADVANCE IN POPULATION AND AGRICULTURE;
ALSO,
Incidents of Pioneer Life; and Biographical Sketches
OF EARLY AND PROMINENT SETTLERS AND REPRESENTATIVE MEN;
AMD OF ITS TOWNS, VILLAGES, CHURCHES, SECRET SOCIETIES, ETC.
ILLUSTRATED.
SAN FRANCISCO: W. A. SLOCUM & CO., PUBLISHERS
1882.


File at: http://files.usgwarchives.net/ca/contracosta/history/1882/historyo/mexicang25ms.txt

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