USA > California > Land in California, the story of mission land, ranches, squatters, mining claims, railroad grants, land scrip, homesteads > Part 7
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Facing its small bay, but not far from ocean surf, Mon- terey at the time of Jones' visit was a village of sandy streets and lanes, of thick-walled adobe houses-many of them spacious-of gaily dressed Spanish-speaking people, a few Americans mixed among them, of men on horse- back riding vaquero style, of guitars at night, and in the air the smell of pine trees and the sea.
Jones, son-in-law of Senator Thomas Hart Benton, had been chosen for this journey to newly annexed California because he was adept in the Spanish language and well acquainted with Spanish colonial titles. He was traveling on an expense account of $2,500. He carried with him the detailed instructions of Commissioner of the General
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Land Office Butterfield, others from Secretary of the In- terior Ewing and the latter's best wishes for a pleasant voyage, health, and success in what the latter called an "arduous undertaking."
Jones came to California to examine the records of land titles. He had been told to classify all grants or claims derived from Spanish and Mexican authorities and to list separately those originating during the period of the late Mexican War. He was to collect the legal forms-from petition to grant-that had been used by Californians and to prepare a table of land measurements. He was in- structed to investigate mission lands and their source of title, to report on mining titles, to check on claims to islands, and to look into Indian rights. Jones was to get reliable information about the whole land-holding system of the former governments of California, to keep a journal and an account of personal expenses, and, to get the re- port in before the end of the next session of Congress.
When Jones stepped ashore in Monterey he found a convention in session, with delegates from all districts of California at work on California's first constitution. That fact did not prevent him from getting under way with his research. On the order of General Riley of the United States Army, Military Governor of California, the ar- chives were thrown open to him. He found the records of land titles imperfect and in confusion. Those records prior to 1839 seemed to be missing, and no book had been started for 1846. Perhaps the records of Los Angeles would supply the deficiencies. What did impress him, though, was the large size of the individual grants allowed under Mexican law-as much as eleven square leagues of land, nearly 50,000 acres-which he felt would call for a liberal attitude on the part of Congress.
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Before leaving Washington, Jones had had time to make a hurried reading of the report, made early in the year by H. W. Halleck, California's Secretary of State (afterward General Halleck of Civil War fame), on the Spanish and Mexican laws relating to land and mission properties in California. This report, with W. E. P. Hart- nell's translations attached, was the pioneer work in the field that was to be more fully explored by Jones. Halleck, incidentally, was participating actively in the convention debates on the constitution at the time of Jones' Monterey visit.
Jones continued his investigations in San Francisco, San Jose, Los Angeles, San Diego, and Mexico City, stay- ing in the last place two weeks. Returning to Washington he completed his report on April 10, 1850, and presented it to Secretary Ewing. President Millard Fillmore, to whom it was transmitted, sent it to Congress which-after the admission of California into the Union on September 9, 1850-would be considering legislation for the settle- ment of private land claims in the state.
Remarkable in scope and detail, as well as being a model of clarity and direct writing, the Jones report is a landmark in the history of land titles in California. It had its effect on the legislation Congress passed, and its liberal viewpoint found continuing expression in later court decrees ruling upon the ownership of California land.
As for grants or claims derived from the government of Spain, the Jones report found the chief local authority to grant lands in the province of California had been, ex officio, the military commandant, who was likewise the governor of the province. He had authority by virtue of his office and also under the Viceroy's instructions of 1773. The principal recipients of grants were officers and sol-
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diers upon their retirement from service. The Viceroy of New Spain also had authority to make grants and some- times exercised it. It was pursuant to his order that pre- sidios, missions, and pueblos had been established. Spanish grants or claims had been respected by the Mexi- can government, many holders taking the precaution to have them renewed under Mexican law.
Jones found that grants of land during the Mexican period, except those of pueblo lots and perhaps some north of the bay of San Francisco, had been made by the different political governors. The great majority were made after January, 1832, under the Mexican coloniza- tion law of 1824 and the regulations adopted in pursu- ance of that law in 1828.
The report discussed in detail how these grants were made. Anyone desiring a grant presented a petition to the governor, stating his name, age, country, and voca- tion, the quantity and, as nearly as possible, the descrip- tion of the land. The petition was accompanied by a crude map or diseño. The next step was for the governor to make a marginal notation on the petition directing the prefect or the local officer to examine and report whether the land was vacant and could be granted without injury to third persons or the public. This official's reply, called the informe, was written upon, or attached to, the peti- tion and the whole returned to the governor. If satisfac- tory, the governor issued the formal grant. The original petition and informe, together with a copy of the grant, were filed in the archives by the secretary of the govern- ment. The original grant was delivered to the grantee. The filed papers were attached so as to form one docu- ment constituting the evidence of title and called the expediente. The last step was to obtain approval of the
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grant by the Territorial Deputation or Departmental Assembly. The governor took care of this matter by com- municating with the legislative body, his communication being referred to a committee which would make its re- port later. If the legislative body did not concur, it was the governor's duty to appeal to the supreme government.
As for mission-held land, Jones reported: "The mis- sionaries there [in California] had never any other rights than to the occupation and use of the lands for the pur- pose of the missions and at the pleasure of the govern- ment. That is shown by the history and principles of their foundation, by the laws in relation to them, by the con- stant practice of the government towards them, and by the rules of the Franciscan order which forbid its mem- bers to possess property."
The report also found that, under the Laws of the In- dies the pueblos had been entitled to four square leagues of land. It pointed out, too, that Spanish colonial laws recognized the rights of Christianized Indians to occupy and use lands needed for habitations, tillage, and pastur- age of flocks. Jones favored a continued observance of this principle. His report found only one "grant of gold mines," that by Governor Micheltorena to Don Juan Bautista Alvarado in February, 1844, of the Mariposas. It did not find in Mexican laws any reservation of mines of gold, silver, quicksilver, or other metal or mineral. It pointed out that Alcatraz Island was indispensable to the United States government, though purportedly granted to Francis P. Temple of Los Angeles. The report ex- pressed the view that it would not be hard to detect fraud- ulent last-minute Mexican grants, and concluded with the opinion that the grants of California were "mostly perfect titles."
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Thirty-three papers accompanied and were a part of this report: copies of laws, decrees, forms, letters, regula- tions, proclamations, an early map of San Francisco, and a list of the private land grants in California found in the archives at Monterey.1 This simply written Jones report showed a definitely friendly attitude toward Californians and helped to lay the basis for tolerance and understand- ing in meeting the claims of those who were in possession of the land of California.
It is interesting to compare the Jones report with the earlier one of Secretary of State Halleck which had been turned over to Governor Mason on March 1, 1849.2
Halleck pioneered in collecting and examining the Spanish and Mexican material at Monterey bearing upon land titles. He summarized his own report by saying that it covered the laws and regulations governing the grant- ing or selling of public lands in California, the laws and regulations respecting the lands and other property be- longing to the missions of California, and the titles of lands in California which might be required for fortifica- tions, arsenals, or other military structures for the use of the general government of the United States. Halleck sketched briefly the history of land titles in California, stating that in many cases the laws had not been complied with in obtaining grants. Grants made after November 21, 1828, were invalid, he said, unless approved by the ter- ritorial legislature or by the supreme government of Mexico. So, too, grants of land within ten leagues of the seacoast or within twenty leagues of the boundaries of any foreign power, as well as grants that exceeded the specified areas for specified kinds of lands. He pointed
1 Senate Ex. Doc. No. 18, 31st Cong., ist sess., 1850.
2 House Ex. Doc. No. 17, 31st Cong., Ist sess., 1850.
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out the indefiniteness of the boundaries of a large number of land grants. He called attention to the probability that Pío Pico antedated some grants made after the United States had taken possession and to possible frauds and irregularities in the sale of pueblo lands. Halleck went into the history of the secularization of the missions, pointing out some of the chaotic conditions existing at the time of his report. Briefly, too, he discussed the title situation at San Diego, Monterey, San Francisco, Alcatraz Island, Angel Island, and other points where it might be desirable to establish military posts or fortifications. Attached to the report were assembled documents illus- trating or bearing upon the statements made.
Halleck's report was and is valuable largely as a pio- neering document. It emphasized and magnified title defects and title problems. Had the Land Commission or the courts adopted the skeptical and cautious spirit shown by Halleck, it seems certain that the landowners of California would have suffered even more delays and disappointments, if possible, than they actually did.
Both Halleck and Jones played a large part later as at- torneys in court contests involving California titles. Be- tween 1854 and 1860 the former was a member of the San Francisco law firm of Halleck, Peachy and Williams, tak- ing part as counselor in many of the land suits and build- ing a reputation also as an authority on military, mining, and international law. Jones likewise appeared as attor- ney for many California land claimants and had already acted as counsel for his brother-in-law, John C. Frémont, in the latter's court-martial in Washington. His son, also named William Carey Jones, attained distinction as dean of the School of Jurisprudence at the University of Cali- fornia.
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California's first Senators, John C. Frémont and Wil- liam M. Gwin, made their presence felt in the United States Senate soon after they were sworn in as members following California's admission into the Union. Fré- mont offered a bill for the settlement of private land claims in his state. Gwin offered a substitute, and Benton of Missouri offered an amendment to the substitute.
"Our titles in California are equities," Gwin stated, in debate with Benton. "We call upon you to examine them in a liberal and beneficial spirit, and confirm all that are just. We ask the interposition of a board to collect the evidence, and then the right to bring our titles before our own court. Then, as a final resort, and forever to settle the question, we claim a right of appeal to that power at Washington 'which has neither guards, nor pal- aces, nor treasure.' '3
Gwin, whose recommendations were to prevail, prob- ably voiced the opinions of the average American who regarded California as a fabulous region that should be open to land-hungry Americans and who looked with suspicion upon the huge size of the California ranchos. Gwin believed land titles in California were vague. Ben- ton, echoing Jones' opinion, held they were perfect. Gwin wanted the courts to pass upon the claims of Californians to land. Benton would have established a recorder as keeper of the archives and of all evidences of land titles; his duty-except where forgery was suspected-being to examine all claims, with the help of the United States District Attorney. Benton favored what he thought would be a simple system, fair to Californians. He foresaw many of the hardships that landowners were later to suffer under the Gwin measure.
8 Speeches of Mr. Gwin in the Senate of the United States on Private Land Titles in the State of California (Washington, 1851).
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The Gwin bill passed the Senate and the House, be- coming the Act of March 3, 1851.4 It threw the burden of proof on every Californian who claimed land-in spite of Articles VIII and IX of the Treaty of Guadalupe Hidalgo which specifically promised full and complete protection of all property rights of Mexicans.5
The Act of 1851 provided for a commission of three members, to be appointed by the President and to func- tion for three years. (This period was twice extended by Congress so that the commission had a five-year life.) Provision was made for a secretary, skilled in the Spanish and English languages, to be appointed by the commis- sioners and to act as interpreter and to keep a record of the proceedings. Clerks not to exceed five in number were also to be appointed by the commissioners. Further- more the President was empowered to appoint an agent "learned in the law and skilled in the Spanish and English languages," to represent the public interests.
The Act provided that "each and every person claim- ing lands in California by virtue of any right or title de- rived from the Spanish or Mexican government, shall present the same to the said commissioners when sitting as a board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims." The commissioners were to proceed promptly to examine the evidence "and to decide upon the validity of the said claim, and, within thirty days after such decision is rendered, to certify the same, with the reasons on which it is founded, to the district attorney of the United States in and for the district in which such decision shall be rendered."
4 9 Stat. 631.
5 See below, Appendix I.
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In the event of either rejection or confirmation of a claim by the board, the claimant could petition the Dis- trict Court for a review. (Later the appeal was made auto- matic.) The petition was to be accompanied by a full statement of the claim and a transcript of the commis- sioners' report. If the District Court's decision was against the claimant, he could ask for an appeal to the Supreme Court of the United States.
Commissioners and courts were to be governed by the Treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim was derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they were applicable.
All lands the claims for which should be finally rejected by the commissioners or finally held to be invalid by the courts, and all lands the claims to which should not have been presented to the commissioners within two years, would be considered as part of the public domain of the United States. For all claims finally confirmed, on the other hand, a patent from the United States was to be issued upon the claimant's presenting to the General Land Office an authentic certificate of such confirmation and a survey duly certified and approved by the Surveyor General of California.
The act provided that the "corporate authorities" of any city, town, or village established under the Spanish or Mexican government or existing on July 7, 1846, or at the date of the act, were to present the claims to the land embraced within the limits of such city, town, or village, and not the individual holders of granted lots. Proof of the existence on July 7, 1846, of a city, town, or village was to be prima facie evidence of a grant.
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Final decrees by the commissioners or by the courts and any patents issued under the act were to be conclusive be- tween the United States and the claimants, but were not to affect the interests of "third persons."
The commissioners were also given the duty of report- ing to the Secretary of the Interior on the tenure by which the mission lands were held, and "those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians."
The board began its work in San Francisco in January, 1852, though the first decision was not reached till August. Early claims filed included those for Las Mari- posas (by John C. Frémont), Suisun (by Archibald Ritchie), San Antonio in Alameda County (by Domingo and Vicente Peralta), Nipoma (by William G. Dana) and Las Pulgas (by María de la Soledad, et al.). The original board appointed by President Fillmore was composed of Harry I. Thornton, James Wilson, and Hiland Hall. In March, 1853, President Pierce appointed a new board: Alpheus Felch, Thompson Campbell, and R. A. Thomp- son. When Campbell resigned in the following year, his successor was S. B. Farwell. The first secretary was J. B. Carr, but, beginning in January, 1852, George Fisher held the secretaryship to the end. Law agents were, in succession, George W. Cooley, V. E. Howard, and John H. McKune. Among the leading law firms employed by claimants were Halleck, Peachy and Billings; Clarke, Tay- lor and Beckh; Jones, Tompkins and Strode; and Crosby and Rose.6 All the sessions of the board were held at San
6 An extensive and important collection of legal briefs, opinions, depo- sitions, arguments, and pamphlets bearing on land titles and the Land Commission-originating apparently in the law library of the firm of Halleck, Peachy and Billings-are bound together in the 19 volumes mak- ing up Henry E. Will's California Titles, deposited in The Huntington Library, San Marino, California.
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Francisco, except for one term at Los Angeles in the autumn of 1852. This brief jaunt to Los Angeles-the center of a district with an economy based largely on ex- isting grants-caused the Los Angeles Star to urge claim- ants to present their cases as early as possible. Previously its editors had denounced the whole process as one certain to keep all titles in litigation. Its issue of August 28, 1852, carried advertisements of the lawyers who followed the board south.
Up and down California, during the five years of the board's activities, Californians gathered up all the papers they could to prove to the gentlemen of the board that they owned the land they had been living on for so many years. They looked into their leather trunks for original grants from Mexican governors. They called upon their friends and relatives to testify to long residence and to the number of their cattle. They went to Yankee lawyers for help. They sent to the Surveyor General's Office in San Francisco for copies of the archives files relating to particular ranchos. They made journeys and drew upon their slender fund of cash. They sometimes mortgaged their lands and their futures or conveyed "undivided" in- terests to their attorneys. Town officials bestirred them- selves to prove pueblo titles. Mission claimants did likewise. Indians, quite unaware of what was happening, did nothing about the lands they were occupying.
The hard-working and fair-minded commission con- tinued in existence until March, 1856. Under the Act of 1851 appeals might be taken to the courts of the United States from the board's decisions, but under the Act of August 31, 1852, appeals were automatically taken to the United States District Court. Thereafter board decisions obviously were less important. The great majority of the
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claims, after being passed upon by the board and the courts, were confirmed. Some claims were withdrawn; others were rejected for fraud or for serious defect. Grants made after July 7, 1846, the date Commodore John D. Sloat took possession of Monterey, were held invalid by the Supreme Court. The board and the courts took a liberal attitude and were ready to overlook a claimant's failure to have followed the details of Mexican law in obtaining his grant or inability to find all the papers to prove he had. They were interested largely in proof of possession and use of land.
J. N. Bowman, conducting recent and extensive re- search into the proceedings of the Land Commission, of the United States District Court, and of other courts to which appeals were carried, revises the data contained in Judge Ogden Hoffman's much quoted Report of Land Cases (1862), and has this general statement on claims:
The total number of private land grant cases in California as determined finally by the board, the District Court, the Circuit Court, the Court of Appeals, the Supreme Court, and Congress, was 848. This means claims filed, it does not mean the number of grants or granted pieces of land. For the rancho Napa of four leagues 56 claims were presented and one board case included 23 separate claims. Two cases were claimed before Congress, one was confirmed and the other rejected."
Taking the 813 cases listed by Hoffman, and without the benefit of Bowman's revisions, William W. Morrow in
7 Quoted from "Index of California Private Land Grants and Private Land Grant Papers," 1942, manuscript volumes in Doctor Bowman's pos- session in Berkeley, California. His manuscript "Private Land Cases" (1941), which is a revision of the Hoffman index and which is an index of the cases in the Minutes and in the Decree books of the United States District Courts, as well as an index of maps, in the custody of the clerk of the United States District Court in San Francisco, is on file in the Bancroft Library, Berkeley. Another copy is in the office of the clerk of the United States District Court, San Francisco.
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his Spanish and Mexican Private Land Grants (1923) broke them down into 604 finally confirmed, 190 finally rejected, and 19 withdrawn. "The 813 is the number of the cases of the board," comments Bowman, "but one of them was a clerical error, two were preëmption claims and another made no claim to any Spanish or Mexican origin. This leaves 809 cases of the board. Now all but 19 of the board cases were appealed to the District Court, so the final decision was with the higher bodies-District Court, Circuit Court, Circuit Court of Appeals, and the United States Supreme Court. Of the 19 cases, 16 were carried by other cases relative to the same grant; so only three cases involving three pieces of land granted were decided by the board."
After a claim had been confirmed, and the official sur- vey by the Surveyor General of California approved, a patent by the United States was issued to the successful claimant. Lands for which claims were finally rejected or not presented were to be considered henceforth as part of the public domain.
Seventeen years was the average length of time that the California landowner had to wait for his patent after filing his petition, according to Bowman. Delays were caused by extended litigation, by unnecessary appeals by government attorneys, and by the difficulties in getting approved surveys. Meanwhile-and as a result of these delays-rancho land was not salable, squatters came in like locusts, and the owners' funds and resources went to lawyers and lenders. Most claimants were bankrupted in the process of getting clear titles. Some chose to sell out to speculators and sharpers. It was a ruinous period for Spanish Californians. Apparently the Treaty of Guada- lupe Hidalgo was not taken literally by the United States.
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