USA > California > Contra Costa County > History of Contra Costa County, California, including its geography, geology, topography, climatography and description; together with a record of the Mexican grants also, incidents of pioneer life; and biographical sketches of early and prominent settlers and representative men > Part 29
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" So, also with the subsequent steps, embracing the proceedings as to survey, up to the perfecting of the title."
There were not, as far as I could learn, any regular surveys made of grants in California up to the time of the cessation of the former govern- ment. There was no public or authorized surveyor in the country. The grants usually contained a direction that the grantee should receive judicial possession of the land from the proper magistrate (usually the nearest alcalde), in virtue of the grant, and that the boundaries of the tract should then be designated by that functionary with " suitable land marks." But this injunction was usually complied with, only by procuring the attendance of the magistrate, to give judicial possession according to the verbal de- scription contained in the grant. Some of the old grants have been subse- quently surveyed, as I was informed, by a surveyor under appointment of Col. Mason, acting as Governor of California. I did not see any official record of such surveys, or understand that there was any. The " perfecting of the title" I suppose to have been accomplished when the grant received the concurrence of the Assembly ; all provisions of the law, and of the col- onization regulations of the Supreme Government, pre-requisites to the title being " definitely valid," having been fulfilled. These, I think, must be counted complete titles.
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History of Contra Costa County.
" And if there be any more books, files or archives of any kind whatso- ever, showing the nature, character and extent of these grants."
The following list comprises the books of record and memoranda of grants, which I found existing in the government archives at Monterey :
1. " 1828. Cuaderno del registro de los sitios, fierras y señales que posean los habitantes del territorio de la Nueva California." [Book of registration of the farms, brands, and marks (for marking cattle), possessed by the in- habitants of the territory of New California.]
This book contains information of the situation, boundaries and appur- tenances of several of the missions, as hereafter noticed ; of two pueblos, San José and Branciforte, and the records of about twenty grants, made by various Spanish, Mexican and local authorities, at different times, between 1784 and 1825, and two dated 1829. This book appears to have been arranged upon information obtained in an endeavor of the government to procure a registration of all the occupied lands of the territory.
2. Book marked " Titulos."
This book contains records of grants, numbered from one to one hundred and eight, of various dates, from May 22, 1833, to May 9, 1836, by the suc- cessive Governors, Figueroa, José Castro, Nicholas Gutierrez and Mariano Chico. A part of these grants (probably all) are included in a file of expe- dientes of grants hereafter described, marked from number one to number five hundred and seventy-nine ; but the numbers in the book do not cor- respond with the numbers of the same grants in the expedientes.
3. " Libro donde se asciertan los despachos de terrenos adjudicados en los años de 1839 y 1840." (Book denoting the concessions of land adjudi- cated in the years 1839 and 1840.)
This book contains a brief entry, by the secretary of the department of grants, including their numbers, dates, names of the grantees and of the grants, quantity granted, and situation of the land, usually entered in the book in the order they were conceded. This book contains the grants made from January 18, 1839, to December 8, 1843, inclusive.
4. A book similar to the above, and containing like entries of grants issued between January 8, 1844, and December 23, 1845.
5. File of expedientes of grants-that is, all the proceedings (except of the Assembly) relating to the respective grants, secured, those of each grant in a separate parcel, and marked and labeled with its number and name. The file is marked from No. 1 to No. 579 inclusive, and embraces the space of time between May 13, 1833, to July, 1846. The numbers, however, bear little relation to the dates. Some numbers are missing, of some there are duplicates-that is, two distinct grants with the same number. The expe- dientes are. not all complete ; in some cases the final grant appears to have
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Mexican Grants.
been refused ; in others it is wanting. The collection, however, is evidently intended to represent estates which have been granted, and it is probable that in many, or most instances, the ommission apparent in the archives is supplied by original documents in the hands of the parties, or by long per- mitted occupation. These embrace all the record books and files belonging to the territorial, or departmental archives, which I was able to discover.
I am assured, however, by Mr. J. C. Fremont, that according to the best of his recollection, a book for the year 1846, corresponding to those noticed above, extending from 1839 to the end of 1845, existed in the archives while he was Governor of California, and was with them when he delivered them in May, 1847, to the officer appointed by General Kearny to receive them from him at Monterey.
II.
CHIEFLY THE LARGE GRANTS, AS THE MISSIONS, AND WHETHER THE TITLE TO THEM BE IN ASSIGNEES, OR WHETHER THEY HAVE REVERTED, AND VESTED IN THE SOVEREIGN ?
I took much pains both in California and Mexico, to assure myself of the situation, in a legal and proprietary point of view, of the former great establishments known as the MISSIONS of California. It had been sup- posed that the lands they occupied were grants, held as the property of the church, or of the mission establishments as corporations. Such, however, was not the case. All the missions in Upper California were established under the direction and mainly at the expense of the Government, and the missionaries there had never any other rights than the occupation and use of the lands for the purpose of the missions, and at the pleasure of the Gov- ernment. This is shown by the history and principles of their foundation, by the laws in relation to them, by the constant practice of the Government toward them, and, in fact, by the rules of the Franciscan order, which for- bids its members to possess property.
The establishment of missions in remote provinces was a part of the colonial system of Spain. The Jesuits, by a license from the Viceroy of New Spain, commenced in this manner the reduction of Lower California in the year 1697. They continued in the spiritual charge, and in a con- siderable degree of the temporal government of that province until 1767, when the royal decree abolishing the Jesuit order throughout New Spain was there enforced, and the missions taken out of their hands. They had then founded fifteen missions, extending from Cape St. Lucas nearly to the head of the sea of Cortez, or Californian gulf. Three of the establishments had been suppressed by order of the Viceroy ; the remainder were now put in charge of the Franciscan monks of the college of San Fernando, in Mex- ico, hence sometimes called " Fernandinos." The prefect of that college, the Rev. Father Junipero Serra, proceeded in person to his new charge, and arrived with a number of monks at Loreto, the capital of the peninsula, the
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History of Contra Costa County.
following year (1768). He was there, soon after, joined by Don Jose Galvez, Inspector-General (visitador), of New Spain, who brought an order from the King, directing the founding of one or more settlements in Upper Cali- fornia. It was therefore agreed that Father Junipero should extend the mission establishments into Upper California, under the protection of pre- sidios (armed posts) which the government would establish at San Diego and Monterey. Two expeditions, both accompanied by missionaries, were consequently fitted out, one to proceed by sea, the other by land, to the new territory. In June, 1769, they had arrived, and in that month founded the first mission about two leagues from the port of San Diego. A presidio was established at the same time near the port. The same year a presidio was established at Monterey, and a mission establishment begun. Subse- quently the Dominican friars obtained leave from the King to take charge of a part of the missions of California, which led to an arrangement between the two societies, whereby the missions of Lower California were committed to the Dominicans, and the entire field of the upper province remained to the Franciscans. This arrangement was sanctioned by the political author- ity, and continues to the present time. The new establishments flourished and rapidly augmented their numbers, occupying first the space between San Diego and Monterey, and subsequently extending to the northward. A report from the Viceroy to the King, dated Mexico, December 27, 1793, gives the following account of the number, time of establishment, and locality of the missions existing in New California at that period :
NO.
MISSIONS.
SITUATION.
WHEN FOUNDED.
1 ..
San Diego de Alcala
Lat. 32° 42'
July 16, 1769.
2 ..
San Carlos de Monterey
36
33
June 3, 1770.
3 ..
San Antonio de Padua.
36
34
July 14, 1771.
4. .
San Gabriel de los Temblores.
34
10
September 8, 1771.
5. .
San Luis Obispo.
"
31
38
September 1, 1772.
6 ..
San Francisco (Dolores)
37
56
October 9, 1776.
7 ..
San Juan Capistrano
33
30
November 1, 1776.
8. .
Santa Clara ..
37
00
January 18, 1777.
9. .
San Buenaventura
34
36
March 31, 1782.
10. .
Santa Barbara
34
28
October 4, 1786.
11 ..
Purisima Conception
35
32
January 8, 1787.
12 ..
Santa Cruz
36
58
August 28, 1791.
13 ..
La Soledad
36
38
October 9, 1791.
At first the missions nominally occupied the whole territory, except the four small military posts of San Diego, Santa Barbara, Monterey and San Francisco; that is, the limits of one mission were said to cover the inter- vening space to the limits of the next; and there were no other occupants except the wild Indians, whose reduction and conversion were the objects
261
Mexican Grants.
of the establishments. The Indians, as fast as they were reduced, were trained to labor in the missions, and lived either within its walls or in small villages near by, under the spiritual and temporal direction of the priests, but the whole under the political control of the Governor of the province, who decided contested questions of right or policy, whether between different missions, between missions and individuals, or concerning the Indians. Soon, however, grants of land began to be made to individuals, especially to retired soldiers, who received special favor in the distant colonies of Spain, and became the settlers and the founders of the country they had reduced and protected. Some settlers were also brought from the neigh- boring provinces of Sonora and Sinaloa, and the towns of San José, at the head of the Bay of San Francisco, and of Los Angeles, eight leagues from the port of San Pedro, were early founded. The Governor exercised the privilege of making concessions of large tracts, and the captains of the pre- sidios were authorized to grant building lots and small tracts for gardens and farms within the distance of two leagues from the presidios. By these means the mission tracts began respectively to have something like known boundaries, though the lands they thus occupied were still not . viewed in any light as the property of the missionaries, but as the domain of the crown, appropriated to the use of the missions while the state of the country should require it, and at the pleasure of the political authority.
It was the custom throughout New Spain (and other parts of the Spanish colonies also) to secularize or to subvert the mission establishments, at the discretion of the ruling political functionary ; and this not as an act of arbi- trary power, but in the exercise of an acknowledged ownership and authority. The great establishments of Sonora, I have been told, were divided between white settlements and settlements of the Indian pupils, or neophytes of the establishments. In Texas the missions were broken up, the Indians were dispersed, and the lands have been granted to white settlers. In New Mexico, I am led to suppose, the Indian pupils of the missions, or their descendants, still in great part occupy the old establishments; and other parts are occupied by white settlers in virtue of grants and sales .* The undisputed exercise of this authority over all the mission establishments, and whatever property was pertinent to them, is certain.
The liability of the missions of Upper California, however, to be thus dealt with at the pleasure of the Government, does not rest only on the argument to be drawn from this constant and uniform practice. It was
. Since writing the above, I have learned from the Hon. Mr. Smith, Delegate from the Territory of New Mexico, that the portion of each of the former mission establishments which has been allotted to the Indians is one league square. They hold the land, as a general rule, in community, and on condition of supporting a priest and main- taining divine worship. This portion and these conditions are conformable to the principles of the Spanish laws concerning the allotments of Indian villages. Some interesting particulars of the foundation, progress aod plan of the missions of New Mexico are contained in the report, or information, before quoted, of 1793, from the Viceroy to the King of Spain, and in extracts from it given in the papers accompanying this report.
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History of Contra Costa County.
inherent in their foundation-a condition of their establishment. A belief has prevailed, and it is so stated in all the works I have examined which treat historically of the missions of that country, that the first act which looked to their secularization, and especially the first act by which any authority was conferred on the local government for that purpose, or over their temporalities, was an Act of the Mexican Congress of August 17, 1833. Such, however, was not the case. Their secularization-their subversion- was looked for in their foundation ; and I do not perceive that the local authority (certainly not the supreme authority) has ever been without that lawful jurisdiction over them, unless subsequent to the colonization regula- tions of November 21, 1828, which temporarily exempted mission lands from colonization. I quote from a letter of " Instructions to the command- ant of the new establishments of San Diego and Monterey," given by Vice- roy Bucareli, August 17, 1773 :
" ART. 15. . When it shall happen that a mission is to be formed into a pueblo (or village) the commandant will proceed to reduce it to the civil and economical government, which, according to the laws, is observed by other villages of this kingdom ; then giving it a name, and declaring for its patron the saint under whose memory and protection the mission was founded." (Cuando llegue el caso de que haya de formarse en el pueblo una mision, procederá el comandante á reducirlo al gobierno civil y económico que observan, segun las leyes, los demas de este reino; poniéndole nombre entonces, y declarándole por su titular el santo bajo cuya memoria y vene- rable proteccion se fundó la mision.)
The right then, to remodel these establishments at pleasure, and convert them into towns and villages, subject to the known policy and laws which governed settlements of that description,* we see was a principal of their foundation. Articles 7 and 10 of the same letter of instructions, show us also that it was a part of the plan of the missions that their condition should thus be changed ; that they were regarded only as the nucleus and basis of communities to be thereafter emancipated, acquire proprietary 'rights, and administer their own affairs; and that it was the duty of the governor to choose their sites, and direct the construction and arrangement of their edifices, with a view to their convenient expansion into towns and cities. And not only was this general revolution of the establishments thus early contemplated and provided for, but meantime the governor had author- ity to reduce their possessions by grants within and without, and to change their condition by detail. The same series of instructions authorized the
* A revolution more than equal to the modern secularization, since the latter only necessarily implies the turn- ing over of the temporal concerna of the missions to secular administration. Their conversion into pueblos would take from the missions all semblance in organization to their originals, and include the reduction of the missionary prieats from the heads of great establishments and administratora of large temporalities, to parish curates ; a change quite inconsistent with the existence in the priesta or the church of any proprietary interest or right over the establishment.
263
Mexican Grants.
governor to grant lands, either in community or individually, to the Indians of the missions, in and about their settlements on the mission lands, and also to make grants to settlements of white persons. The governor was likewise authorized at an early day to make grants to soldiers who should marry Indian women trained in the missions ; and the first grant (and only one I found of record) under this authorization, was of a tract near the mis- sion edifice of Carmel, near Monterey. The authorization given to the cap- tains of presidios to grant lands within two leagues of their posts, expressly restrains them within that distance, so as to leave the territory beyond- though all beyond was nominally attached to one or other of the missions -at the disposition of the superior guardians of the royal property. In brief, every fact, every act of government and principle of law applicable to the case, which I have met in this investigation, go to show that the mis- sions of Upper California were never, from the first, reckoned other than government establishments, or the founding of them to work any change in the ownership of the soil, which continued in and at the disposal of the crown, or its representatives. This position was also confirmed, if had it needed any confirmation, by the opinions of high legal and official authori- ties in Mexico. The missions-speaking collectively of priests and pupils -had the usufruct ; the priests the administration of it; the whole resum- able, or otherwise disposable, at the will of the crown or its representatives.
The object of the missions was to aid in the settlement and pacification of the country, and to convert the natives to Christianity. This accom- plished, settlements of white people established, and the Indians domicili- ated in villages, so as to subject them to the ordinary magistrates, and the spiritual care of the ordinary clergy, the missionary labor was considered fulfilled, and the establishment subject to be dissolved or removed. This view of their purposes and destiny fully appears in the tenor of the decree of the Spanish Cortes of September 13, 1813 .*
The provisions of that Act, and the reason given for it, develop in fact the whole theory of the mission establishments. It was passed "in conse- quence of a complaint by the Bishop elect of Guiana of the evils that afflicted that province, on account of the Indian settlements in charge of missions not being delivered to the ecclesiastical ordinary, though thirty, forty and fifty years had passed since the reduction and conversion of the Indians." The Cortes therefore decreed :-
1. That all the new reducciones y doctrinas (that is, settlements of Indians newly converted, and not yet formed into parishes), of the provinces beyond the sea, which were in charge of missionary monks, and had been ten years subjected, should be delivered immediatelyto the respective eccle- siastical ordinaries (bishops), "without resort to any excuse or pretext, conformably to the laws and cedulas in that respect."
* "Collection of Decrees of the Spanish Cortes, reputed in force in Mexico." Mexico, 1829. Page 106.
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History of Contra Costa County.
2. That as well these missions (doctrinas) as all others which should be erected into curacies, should be canonically provided by the said ordi- naries (observing the laws and cedulas of the royal right of patronage) with fit ministers of the secular clergy.
3. That the missionary monks, relieved from the converted settlements, which should be delivered to the ordinary, should apply themselves to the extension of religion in benefit of the inhabitants of other wilderness parts, proceeding in the exercise of their missions conformably to the directions of paragragh 10, Article 335, of the Constitution .*
4. That the misionary monks should discontinue immediately the gov- ernment and administration of the property of the Indians, who should choose by means of their ayuntamientos, with intervention of the superior political authority, persons among themselves competent to administer it; the lands being distributed and reduced to private ownership, in accordance with the decree of January 4, 1813, on reducing vacant and other lands to private property .; "
It has also been supposed that the Act above alluded to of the Mexican Congress (Act of August 17, 1833) was the first assertion by the Mexican Government of property in the missions, or that they by that Act first became (or came to be considered) national domain. But this is likewise an error. The Mexican Government has always asserted the right of property over all the missions of the country, and I do not think that the supposition has ever been raised in Mexico, that they were the property of the mis- sionaries or the Church.
The General Congress of Mexico, in decree of August 14, 1824, concern- ing the public revenue, declares the estates of the inquisition, as well as all temporalities, to be the property of the nation (that is, no doubt, in contra- distinction from property of the States-making no question of their being public property). This term would include not only the mission establish- ments, but all rents, profits and income the monks received from them. A like Act of July 7, 1831, again embraces the estates of the inquisition and
"The following is the clause referred to, namely, paragraph 10, Article 335, Constitution of the Spanish Mon- archy, 1812 :
"The provincial councils of the provinces beyond sea shall attend to the order, economy, and progress of the missions for the conversion of infidel Indians, and to the prevention of abuses in that branch of administration. The commisioners of such missions shall render their accounts to them, which accounts they shall in their turn forward to the Government."
This clause of itself settles the character of these establishments as a branch of the public administration.
t "Collection of Decrees of the Spanish Cortes," etc., p. 56. This decree provides :
1. That "all the vacant or royal lands and town reservations (propios y arbitrios, lands reserved in and about towns and cities for the municipal revenue), both in the peninsula and islands adjacent, and in the provinces beyond sea, except such commons as may be necessary for the villages, shall be converted into private property ; provided, that in regard to town reservations, some annual rents shall be reserved."
2. That "in whatever mode these lands were distributed, it should be in full and exclusive ownership, so that their owners may enclose them (without prejudice of paths, crossings, watering-places and servitudes), to enjoy them freely and exclusively, and destine them to such use or cultivation as they may be best adapted to ; but without the owners ever being able to entail thein or to transfer them, at any time or by any title, in mortmain."
3. " In the transfer of these lands shall be preferred the inhabitants of the villages (or settlements) in the neighborhood where they exist and who enjoyed the same in common whilst they were vacant."
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Mexican Grants.
temporalities as national property, and places them with " other rural and suburban estates " under charge of a director-general. The executive regula- tions for colonizing the territories may raise an idea of territorial and native property in them, but it puts out of the question any proprietary rights in the missionaries.
The seventeenth article of these regulations (executive regulations for colonization of the territories, adopted November 21, 1828) relates to the missions, and directs that " In those territories where there are missions, the lands which they occupy shall not at present be colonized, nor until it be determined if they ought to be considered as property of the settlements of the neophyte catechumens and Mexican settlers."
The subsequent acts and measures of the general Government of Mexico, in direct reference to missions, and affecting those of California, are briefly as follows :
A decree of the Mexican Congress of November 20, 1833, in part ana- logous to the decree before quoted of the Spanish Cortes of September, 1813, directing their general secularization, and containing these provisions :
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