WPA History of the Spanish Land Grants
Spain's Land Policy
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The land policy of Spain’s first regime in Florida was based on
the Law of the Indies, which was a codification in 1680 of the royal
cedulas – the orders, provisions, ordinances and instructions under
which Spain’s colonies had previously been governed, At the same
time the Council of the Indies was established at the Spanish court with
absolute authority under the King in dealing with colonial matters.
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Land was granted to individuals in peonias and caballerias, according
to rank, a distinction being made between laborers and gentlemen. Originally
the peonia was a grant made to peon (foot soldier); the caballeria, a grant to an
esudero (squire) who was generally a mounted trooper. With the exception
of the lot
on which the residence was built, a caballeria was five times that of a
peonia. The term caballeria came to mean, in Mexico, a piece of land
granted for
the purpose of raising horses or cattle, and measured 1,104 varas long
by 552 varas wide, or 609,408 square varas.
In Florida, a peonia was
a lot of fifty feet in breadth and one hundred in depth; sufficient arable
land to produce 100 fanegas (40) of wheat and
barley
and 10 of Indian corn; two huebras (41) for a garden and eight huebras of
woodland; pasture land for ten breeding sows, twenty cows, five breeding
mares, one hundred
ewes and twenty goats. A caballeria consisted of a lot of one hundred
by two hundred feet and five times as much arable land, pasture, etc. as
in
a peonia.
(42) Houses were to be built and lands cultivated within a given time under
penalties provided by law. (43) If possession was not taken within three
months the land was forfeited to the crown. (44)
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40. A fanega was 1.6 bushel.
41. As much land as a yoke of oxen can plow in a day.
42. Matthew St. Clair Clarke, comp., Laws of the United States…Spanish
Regulations…Respecting the Public Lands (Washington, 1828), p. 994, henceforth
cited as Clarke, Land Laws; G&S, V, 649. The last mentioned reference is
to “Spanish and French Ordinances affecting Land Title sin Florida and
Other territories of France and Spain” which Joseph M. White compiled
for the use of the Boards of Commissioners in which he served as secretary
and commissioner and which was published in G&S, V, 631-674.
43, Ibid., p. 653.
44. Ibid., P. 650.
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No stranger (alien) was permitted to trade with the Indies except those
who had been licensed by the King, and they were under surveillance
and forbidden
to reside in port towns. Naturalization required residence in the Kingdom
or in the Indies twenty consecutive years, the ownership of a house and
real property to the value of 4,000 ducats, and marriage with a native,
or daughter
of a stranger, born in the Kingdom or in the Indies. Even with these conditions
satisfied the naturalized citizen could not trade or contract without the
sanction of the Council of the Indies, and if licensed he could trade only
with his own funds and after filing with the court under oath an inventory
of his possessions. (45)
Although the Law of the Indies was useful to United
States Boards of Commissioners in interpreting claims, no grant was presented
to them under its provisions.
The earliest grant brought before them was of English origin, dated 1765.
After
the retrocession of the Floridas, Spain adopted in part the policy the
English had followed in granting lands. Under the royal order of 1786
British
subjects in Florida were permitted to remain and retain possession of their
lands by taking the oath of allegiance to Spain. (46) Efforts to attract
Irish Catholics as settlers having in large part failed, the King issued
the royal
order of 1790 inviting aliens to Florida regardless of their religious affiliation.
Grants under this order were popularly known as “head rights”.
Under the regulations issued by Governor
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45. Ibid., pp. 654-655
46. Ibid., p. 762
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Quesada, immigrants who would take the oath of allegiance and could
furnish transportation for themselves, their families and goods,
and who could
be self-supporting until they were established, were invited to come
in and receive free land. They were promised freedom in matters of
religion, although only the Catholic worship was to be permitted
in public. The head of a family was offered 100 acres of land with
50
acres for each white or colored person in the family, whatever their
ages. An additional grant up to 1,000 acres could
be obtained if there was probability of its being cultivated. The
grantee could
not during
his probation alienate the land without the consent of the government,
but must hold and cultivate it continuously for a term of 10 years.
He was required to build a house with a suitable chimney, prescribed
by the regulations, to build fences and to keep a certain number
of livestock. When his tenure and improvements were proved by the
testimony
of witnesses under oath, a title in absolute property would
be issued. (47)
Captain Pedro Marrot of the 3rd Battalion of Infantry,
garrisoned at St. Augustine, was chosen to supervise the surveys and
was given
minute instructions. He was
to take with him the public surveyor and to see that measurements were
made according to the general regulation and the terms of any particular
grant.
He was to ascertain that applicants had taken oath of allegiance, make
a list of the white and black members of each family, noting their
sex and ages, and
take the oath of the applicant on those points. Surveys were to be so made
that the length would extend
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47. Ibid., p. 749; DG, III, 728; Clarke, Land Laws, p.997.
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inland and be two-thirds more than the width, or frontage. Owners of
adjacent lands were to be cited to appear and exhibit their titles
and the lines were to be run accordingly, the matter to be later reviewed
by the government. Even the physical equipment and the size of the
surveying party were specified: in addition to the public surveyor,
Marrot was to take four sailors and two laborers, a canoe two tents
and two tarpaulins. He was to record “in a large book” all
the pertinent facts of each survey. (48)
Although the royal order of
1790 had been issued with the expectation of attracting aliens, Spanish
subjects claimed head rights under its
terms and accepted the
longer tenure because of the more generous allotment it offered over those
prescribed in the Law of the Indies.
In the following thirteen years the intent
of the law was often disregarded by new settlers and to prevent the
abuses which had come to be customary, Governor
White in 1803 issued new regulations. Only 50 acres were to be allotted
to heads of families and none for children under eight years of age.
For children
and slaves between eight and sixteen years, 15 acres were allowed; 25 acres
for those who were sixteen and over. To those who sold or conveyed their
lands before they had acquired title, other grants were denied and the
conveyances
were illegal unless sanctioned by the government. When no other date was
specified, grantees were required to take possession within six months.
If grants were
made to those residing in towns, cultivation must begin within one month.
To prevent fraud and avoid
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48. Ibid., p. 998.
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disputes, each petitioner was required to designate a point from
which measurement was to begin, and he was to give up his improvements
for
the benefit of the royal treasury in the event a change of location
should later be desired. Those who abandoned their lands or discontinued
cultivation for a period of two years were to lose their rights and
the lands might be receded by the governor to the persons making such
proof. (49)
In the absence of the public surveyor, (50) Juan Purcell, in 1811,
Jorge (George) J. F. Clarke was appointed to the office. (51) Clarke’s
instructions, like those of Marrot, were specific:
Article 1. He was
to consider possessors of land under three classes—proprietors,
those holding lands by title not obtained from the government; grantees, those
who after compliance with conditions will receive titles; grantees and proprietors,
those who have already fulfilled conditions and acquired titles.
Article 2. He was to demand title or grant before acceding to any request
to measure or bound lands.
Article 3. He must cite owners of adjacent lands to appear with their
titles and satisfy himself that there was no conflict between claims.
Article 4. He was to lay out grants in rectangular parallelograms,
the narrower portion, fronting rivers, creeks, and roads, to be one-third
the depth which was to extend inland. If necessary to prevent empty spaces,
however, he was to increase the frontage and correspondingly decrease
the depth.
Article 5. He was to give each grantee a plat, signed and dated, made
on a certain scale, with perimeters, distances in chains and links, corners,
magnetic directions and the number of acres, marked in ink.
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49. Ibid., pp. 1001, 1002, 1003; G&S, V, 730-731, 749-50.
50. Presumably the office was the same as that of surveyor-general.
51. Clarke is sometimes referred to as acting surveyor—Clarke,
Land Laws, pp.1003, 1004.
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Article 6. He was to retain a copy of each plat in a book the index
of which would show the page of each plat, its number, and the name
of the grantee.
At the back of the book the surveys, each bearing the proper number,
were to be drawn to a given scale.
Article 7. The book described in the foregoing article was designed
to serve the purpose of showing the government what lands were unmeasured
and exhibit the surveyor’s operations so as to satisfy grantees
as to their boundaries.
Articles 8, 9, and 10 gave instructions for making corners for tracts
and a list of the fees the surveyor might charge. (52)
In view of these explicit regulations and the tradition for meticulous
care which Marrot had given to the office of surveyor-general and which
had been continued by John Tate and Juan Purcell, Clarke’s testimony
before the United States Board of Commissioners denying that he had been
bound by rules is surprising. (53)
Despite generous land grants colonization
lagged. Juan Estrada, appointed governor upon the death of Governor White
in 1811, felt that the difficulty lay in requiring
a ten-year tenure before title was granted, He accordingly proposed that the
West Florida plan be adopted of selling the land and giving title in fee simple,
which he thought would attract settlers from the United States. The captain-general
of Cuba called his attention to the fact that by royal orders of 1804 and 1806
the admission of citizens of the United States was prohibited. (54).
The royal
order of 1815 permitting grants for patriotic services was supposed to
have been made in response to Governor Kindelan’s
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52. Ibid., p. 1004
53. G&S, VI, 57.
54. Ibid., V, p. 734.
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recommendation two years earlier. The “Patriotic War” (55)
had just ended and the Governor suggested to Juan Ruiz de Apadacha, Captain-General
of Cuba, that rewards be given to the three white militia companies and
to the 3rd Battalion of Cuba: 1. to each of the militia officers, a royal
commission for each grade possible to him as a provincial; and 2. to
all soldiers of the militia and to the married officers and soldiers
of the 3rd Battalion of Cuba, lands in proportion to the size of their
families. He admitted that his plan would not in reality given them anything
which was not already open to them, but he thought that “public
approbation would content the men and stimulate their patriotism.” (56)
The
authenticity of the copies of Kindelan’s letters and of the royal
order of 1815 was called into question by Alexander Hamilton, member of the
United States Board of Commissioners for East Florida in 1823. He sent to
Secretary of the Treasury Crawford “a translation of what is commonly
called the Royal Order of 1815, together with a copy and translation of a letter
supposed to have been written by Governor Kindelan, the apparent inducement
to the order,” under which he said “the numerous and extensive
grants have been made.” He asserted that there had been an erasure in
Kindelan’s letters and the word “extensively” substituted
for “exclusively,” making a sentence read “…which gifts
can also be extensively made to the married officers and soldiers
of the said third
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55. The defense by the Spanish authorities against the attempt of the U.S.
government in 1811-1812 to acquire East Florida by fomenting a revolution on
the plea of preventing Great Britain’s using it as a naval base.
56. G&S, V, 750.
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battalion of Cuba.” (57)
No other authority being available, the
Board adjudicated service grants on the basis of the order and letter
in question. No conditions were
attached
to such grants, but in the main their size was based upon head rights. The
recital of services rendered often makes the memorials humorous reading.
Spanish
land grants may thus be said to have been based upon three royal orders:
that of 1786 for the English in Florida; that of 1790 for strangers,
of which
Spanish subjects also availed themselves; and that of 1815 for patriotic
service. In addition there were two other types of grants which may be
said to have
contemplated future services to the province: saw or grist mill grants
and cow pen (cattle ranch) grants. There was controversy between Alexander
Hamilton
and his colleagues as to the extent of discretion permitted to Spanish
governors in the matter of land grants, and certainly no royal orders
covered these
types, but the Council of the Indies evidently did not disapprove of the
action of
the governor in making such grants.
Memorials for sawmill grants usually
asked for five league square, or 16,000 acres, and urged the value
to the province of mills such as they proposed
to establish. They were readily granted, beginning in 1793. In every
instance the governor made the establishment of the mill a condition
precedent to
the
license to cut timber. In no instance save one was a perfect title to
this type of grant conferred by Spanish authorities,
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57. Clarke, Land Laws, pp. 1009, 1010, 1034.
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since none fulfilled the conditions before the cession. The exception
was the grant of 26,000 acres to George J. F. Clarke who claimed to
have invented a sawmill to be propelled by animal power, and who in
addition had served the government in various capacities, and especially
in the Patriot War, when the rebels put a price upon his head and upon
the heads of members of his family.
The United State Boards of Commissioners
and later the Registers and Receivers of the land offices who took over
the duties of the commissioners
took the
position that only a mill site and the right to cut timber over an area of
16,000 acres were granted. As Richard Keith Call, Receiver, put it, the grants
were not intended to convey land but “a mere usufruct for the enjoyment
of the timber.” Call pointed out in his report to the Secretary of the
treasury in 1835 that the land claimed under these twenty odd grants amounted
to 312,600 acres, whereas the whole amount confirmed to grantees for habitation
and cultivation—the paramount object of the laws and ordinances of Spain—from
October, 1790, until the cession was only about 129,000 acres. (58) A few of
the grantees fulfilled the conditions after the cession as permitted in the
treaty, and the Supreme Court confirmed their claims.
The concession to Clarke
was made December 17, 1817, and governor Coppinger at the same time gave
complete title to 22,000 of the 26,000 acres granted.
When Clarke had established the sawmill the Supreme Court confirmed his claim
to 22,000 acres, but denied the validity of the title
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58. G&S, VIII, 251 et seq.
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to 4,000 acres which had been completed after January 24, 1818,
the date specified in the treaty as the last on which grants made by
Spain would
be recognized. (59) Call was critical of the court’s action in
confirming the concession and plainly intimated that Governor Coppinger's
object in making the grant was to defraud the United States. (60)
Cow
pen (cattle ranch) grants gave less trouble than did mill grants. In
most instances conditions were fulfilled including tenure of ten
years, after which
titles were granted. Pablo Sabate’s grant (61) of 2,500 acres for such
a purpose was an exception. He received a royal title, without seemingly being
called upon to meet any conditions whatever. This extraordinary title having
been granted on April 2, 1818, the Board of Commissioners disallowed the claim
as being contrary to the treaty. (62)
In West Florida the terms for granting
lands were somewhat different from those which obtained in East Florida.
Governors there had changed frequently and
lands were granted not only by the governors, but also by acting governors
and intendants. In the main, the United States Board of Commissioners for
West Florida followed the general regulations made on July 17, 1799,
by Juan Venture
Morales, who, to give his full title, was
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59. The U.S. vs. Clarke, 8 Peters 436.
60 G&S, V, 428-30; VIII, 251 et seq. A list of mill grants may be found
in Ibid., V, 427.
61. Infra, Unc. S 1
62. G&S, VI, 72.
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principal comptroller of the army and finances of the provinces of Louisiana
and West Florida, intendant par interim and subdelegate of the superintendence,
general of the same, judge of admiralty and of lands, etc., of the
King, etc. These regulations provided for three types of grants: gratuities,
lands sold, and compromise grants.
Gratuities, or conditional grants
to colonists (a chaque famille nouvelle), were based upon the
size of the family and were not in any case to exceed 800
arpens. (63) These settlers were under the necessity of clearing
and putting into cultivation a certain amount of land within the three-year
tenure required.
If the grant bordered the Mississippi River, the owner was in addition required
during the first year to build levees, canals, a highway and bridges. Failure
to comply with the conditions would prevent the sales of the land, which would
revert to the crown. (64)
The policy of selling land outright was preferred
by the authorities of West Florida. The tax price (quitrent) was set
by the King’s agent and the
lands were sold at auction. When purchasers did not have ready money with which
to pay for their lands, they were permitted to buy them at redeemable quitrent
during the continuance of which they paid 5% yearly. However, they were expected
to pay down the right of media annala, or “half year’s
rent,” to
be remitted to Spain, and they had to pay the fees of the surveyor and notary.
(65)
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63. A French measure varying with the locality, being about 84/100 of an acre
in West Florida.
64. G&S, V, 732, Arts, 1-6.
65. Ibid., 733-734, Arts. 24-28.
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Comprise grants were made to “squatters” who had cultivated
and improved the land for ten years and who after investigation and assessment
by the treasury paid “a just and moderate retribution, calculated according
to the lands, their situation, and other circumstances,” and the cost
of making the estimate. (66)
Whether lands were sold or donated, the King reserved
the right of taking from them any timber he might need, particularly cypress
for the navy. (67)
There were usually seven steps in acquiring land under
Spanish authority:
1. A memorial or petition to the governor setting forth
the claimant’s
right to a service grant or to head rights, or a proposal to render a service
to the province by erecting a mill or establishing a cow pen, and usually
specifying the tract desired.
2. A review of the petition by the governor’s
office; if favorable, it was referred to the commandant of engineers
to ascertain whether there were
any objections from the standpoint of defense. The commandant frequently
stipulated that the grantee should have no claim for damages if ordered
to retire to the
interior or if his buildings should be burned in case of military necessity.
Particularly was this so if the grant lay within the mil y quinientas – the
land within a radius of 1,500 varas from the flagstaff, outside
the walls of fortified towns such as St. Augustine and Fernandina, which
the King had
placed
at the disposal of the commandant for purposes of defense. The grant in the
mil y quinientas was usually one acre, on which the commandant allowed
the cultivation of low-growing crops, usually vegetables which the grower
peddled
in the town, and the building of a palm shack ten or eleven feet square and
ten feet high. He forbade the digging of ditches and the building of picket
fences, only rail fences being allowed. (68)
3. A grant made by the governor,
usually noted on the margin of the petition, giving the authority under
which the concession was made
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66. Ibid., p. 733, Art. 80
67. Ibid., p. 732, Art. 9
68. After the cession the U.S. Board of Commissioners recommended that
the mil y quinientas be relinquished to the several claimants.
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and stating the conditions of settlements, cultivation, the bringing
in of a certain number of slaves, etc., together with instructions
to the surveyor-general. The grant, however, did not mean, as in the
United States, a perfect title, but an incipient right which required
confirmation by the governor at a later date. The petition was filed
in the office of the escribano.
4. Verification of the petitioner’s
statements by the governor’s
office or the surveyor-general through the examination of witnesses.
If the grant was for head rights, the number in the family, white and
black, was ascertained, regarding which the petitioner made oath. The
surveyor-general also ascertained whether there was a prior claim to
the land in question. Having satisfied himself on these points he made
the survey, entered it on his records and issued a certificate. The petitioner
was now at liberty to take possession and begin fulfillment of conditions.
5.
A memorial by grantee for absolute title.
6. Decree of the governor
for taking testimony to prove whether conditions had been fulfilled.
7.
Decree of the governor for absolute title, after which the owner could
dispose of the land in any way he saw fit.
Frequently a grantee became dissatisfied with his land and petitioned
the governor for an exchange. If the reasons were good it was usually
granted.
Titles issued by the Spanish government were therefore of two
kinds: those in “absolute property” and “conditional.” Conditional
titles were represented by certificates of survey reciting the conditions to
be fulfilled. Titles in absolute property were given when all conditions had
been fulfilled or when grants were made for services already performed. Under
the law of the Indies the term required for a perfect, or complete, title was
four years of inhabitation and cultivation; under the royal order of 1790 and
Governor Quesada’s regulations, ten years; under Governor Kindelan, whenever
improvements had been made, regardless of the number of years. Kindelan’s
regulation, issued in 1815, was made
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necessary by the conditions following the Indian wars and revolutions,
which drove many people from their lands and prevented the fulfillment
of conditions within the time specified in the grants. Once a title
in absolute property was obtained, the possessor of land, his heirs,
and assigns, had the power to discontinue cultivation, to sell, cede,
exchange, transfer and alienate at will. (69)
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