Imágenes de páginas
PDF
EPUB

their utility. Preferring to be amenable only for my own mistakes, and willing to encounter the responsibility which belonged to such an enterprise, rather than forfeit ihe just share of reputation to which my contributions might be entitled, I entered on the execution of the work with a sincere distrusi indeed of my own abilities, but a perfect assurance that those who could best appreciate its defects would always be the most ready to treat them with indulgence.

Considering that the portions of the Spanish law thus collected and embodied were hereafter, in all human probability, to have an extensive and material influence, not merely in the adjustment of claims to ten or twelve millions of acres of land, in which the United States are concerned, but also in the settlement of litigation between individuals holding conflicting titles; considering, also, that, while the public domain was to be protected on the one hand, the public faith was to be preserved on the other, I have not felt myself at liberty, in making my selections, to omit any thing which, according to my apprehension, could be of consequence to either party.

Allow me, even at the risk of exhausting your patience, to state as briefly as possible the nature and extent of my researches, at least so far as they have led to the acquisition of valuable materials, omitting such as have proved fruitless, or comparatively unimportant.

For the purpose of ascertaining the extent of the information already in possession of the government, I carefully examined all the reports of the various boards of commissioners, from their first organization to the present time. It was only among the more recent of these ponderous masses of manuscript that I found any reference to the laws or ordinances of the country from which the titles in controversy were derived. In general, the cases followed each other in the order in which they were decided, without system or classification. Seldom could any uniform rules of decision be extracted from them, and the correctness of the few adopted was more than questionable, since they frequently consisted of common law principles applied to rights arising out of a different system of jurisprudence, and under a government whose organization, forms, and policy have little resemblance to those, the maxims of which were thus made tests of excellence, or standards of comparison.

The instructions of Mr. Gallatin, and the report of Mr. Crawford, were also examined with anxious attention. I found, however, that they related chiefly to the interpretation which should be given to our own statutes * providing for the adjudication of these [ *7 ] claims, and the manner of their settlement, rather than to the treaties and ordinances under which they were to be decided.

In the hope of procuring some light upon the subjects of this compilation, various histories of Spain and of her colonies have been consulted. From these sources little information can be gained with reference to the law of real property, or the organization, powers, and duties of the local authorities.

The jealousy of the mother country seems for a long time to have shrouded her colonial policy in studied obscurity, and when, at a late period, her provinces were opened to the inquiries of intelligent strangers, this branch of their history attracted little attention. No historian, commentator, or traveller, whose works have fallen within my reach, has attempted to present any thing even professing to be full or satisfactory on the subject.

In the early settlement of the American colonies, conflicts with the aborigines, and subsequently, the contention of European powers for colonial and commercial aggrandisement, prevented uniform legislation or regular systems of government. The accounts which have descended to us of Cortez, Fernando de Soto, and their contemporaries and immediate successors, are little more than chronicles of battles, conquests, or massacres; records of suffering, peril and adventure. When, in the further progress of the colonies, some traces of their civil history appear, when their local ordinances were framed, and their territorial limits defined, the provinces of Spain were not regulated by charters and commissions, like those of France and England. The obscurity which veils their origin has continued, in some measure, to envelope their policy to the present day.

I find, indeed, in an account of the election of Cortez as president, some mention of an intended application to Don Carlos to ratify it, and subsequently his appointment by the Emperor Charles V. to be Captain General of New Spain. Soon afterwards, a Royal Audience [Audiencia Real] was appointed, and charged with the administration of the civil affairs of the country.

From the appointment of the first Viceroy of New Spain, however, to the year 1701, I have met with no specification of his powers; no authentic detail of his subordinate authorities, nor any code of laws or system of regulations relative to concessions of the royal domain.

The Viceroyalty was divided into three provinces and twelve intendencies; but these appear to have been political divisions of an entirely different character from others of the same name, adopted by the King of Spain during the last century. In the works of Clavigero, Humboldt, and Bonnycastle, statements of the revenues of New Spain are given. Nothing appears to have accrued from the sales of lands; from which it may, perhaps, be inferred that they were granted gratuitously.

In the history " de las Provincias Internas," extensive grants are spoken of; but whether made by the King in person or a subordinate authority, does not appear.

The Ėmperor Charles V. granted to a company of Weltzers, a German establishment of Augsburg, the sovereignty of the province of Venezuela, from Cape Vela to Maracapua.

Humboldt mentions that a small number of powerful families possess a great part of the shores of the Intendencies of Vere Cruz

*8 ) and San Luis * Potosi; and adds, that no agrarian law forces these extensive proprietors to sell their estates-mayorasgos.

Whether these grants were absolute or conditional, in the nature
of fiefs, or merely for the encouragement of settlement and cultiva-
tion, I have found no means of ascertaining.

There are in Cuba a Captain General, Intendant, and Superin-
tendent General, and eighteen Governors of districts, all authorized,
in some form, and to some extent, to make grants or allotments of
land. Their powers, in many cases, depend on instructions, official
letters, and decrees of the King, Captain General or Intendant
General, addressed to these respective subordinate departments.
West Florida, as is well known, was a dependency of the govern-
ment of Louisiana; and East Florida was attached to the Intendency
of Cuba. To remove, as far as practicable, the perplexity of this
branch of the subject, I extended my inquiries to Cuba, and received
from thence some official letters, decrees and commissions; and
have also obtained whatever authentic papers of this description the
archives of Louisiana, and of East and West Florida afforded.

By the direction of the President, I have also collected some
documents relative to claims derived from the former British
government of West Florida. These claims cover more than a
million of acres of land, and appear to be entirely unfounded in law
or equity. They are urged upon our government for confirmation,
in consequence of a precedent most erroneously and unfortunately
established in the settlement of the land claims of Mississippi.
Independent of any public act of the Spanish government, these
claims, it would seem, were absolutely void at the expiration of the
period allowed to the inhabitants of the ceded territory, by the
treaty of 1783, for their removal and the disposition of their lands.

If Spain then extended to them some indulgence, in consequence
of the value of their possessions, the forfeiture it is apprehended, was
only postponed to the expiration of the period allowed by her
liberality.

The justice or policy of the conditions imposed on the inhabitants
of Florida by the third article of the treaty between Spain and
England, was it is believed, a matter exclusively between those two
powers. The United States were neither parties nor privies to the
compact; they derived no benefits from, and incurred no responsi-
bilities under it. The treaty was contemporaneous with the acknow-
ledgment of our independence. The invasion by Spain, the surrender
and evacuation of the Floridas—all happened while both Spain and
the United States were at open war with England. The condition
imposed by Spain on England in the cession was the same imposed
by the latter on the former in the treaty of 1762. There are
numerous precedents of a similar description, all of which have been
considered entirely consistent with the established principles of
international law. These claims are advanced against the United
States after a lapse of forty-five years, and they have been confirmed
in the state of Mississippi, whenever the land which they covered
had not been regranted by Spain. If it be true that His Catholic
Majesty, or his lawful authorities, could rightfully concede the lands
which were comprehended in these titles, there can, it is presumed,
be little doubt that the cession, in “full property and absolute
dominion," of all the territory not granted, conveyed to the United
States a title as perfect and indefeasible as any Spain could have
conferred upon her own subjects. My province, however, is neither
to argue or decide the question; and I content myself with annexing
[ *9 ] such * documents as exhibit the light in which these titles were
regarded by the Spanish authorities.

To avail myself of every facility towards making the researches
called for on ihe faithful execution of this arduous commission, I
addressed letters to two learned professors, in the University of
Cambridge and Virginia, requesting an examination of the different
works in the libraries of each, and translations of whatever might
be found connected with the subject. To each I sent a schedule of
the ordinances of a general nature referred to in the proceedings of
the Spanish tribunals, and of the various boards of commissioners
appointed under the laws of the United States. For the assistance
and courtesy extended to me by both these gentlemen, I owe them
my sincere acknowledgments. I am also indebted to a gentleman
of great learning and research in Florida, for translations of such
parts of the Recopilacion de las leyes de los Reynos de las Indias
as related to real property. They have been compared in the
department of state by the authorized translator of the government,
and approved.

The Curia Philipica and Febrero Adicionada was found to
contain nothing worthy of being presented under my instructions.
No reference has been made to the partizans of Don Alonzo, as
there is a translation of the work accessible to those who may
desire to refer to it.

The compilation which I now send to your department is, 1st.
An ordinance establishing the council of the Indies, dated in 1524,
in Spanish, with a translation, to be found in a work entitled,
“ Ordenanzas del Consejo Real de las Indias Neuvamente reco-
piladas, y por el Rey Don Felipe Quarto.” Published at Madrid
in 1681.

2d. Various laws, ordinances, and decrees, in relation to the
organization of Spanish tribunals, the form and authentication of
Spanish documents, and various duties and responsibilities of
governors, intendants, and tribunals, relating to the concessions of
lands, from a work, entitled “ Recopilacion de leyes de los Reynos
de las Indias mandadas imprimer y publicar por la Majestad Catolica
del Rey Don Carlos II." Folio. Printed in 1756: and again
printed in two subsequent editions, 1774 and 1791.

3d. Extracts on the same subject, from the “ Novissima Recopi-
lacion de las leyes de Espana, dividada in XII. libros, en que se
reforma la Recopilacion publicada por el Senor Don Felipe II. y
se incorporan las pragmaticas, cedulas, decretos, ordenes y resolu-
ciones Reales, y otras providencias no recopiladas, y expedidas

[merged small][ocr errors]

hasta el de 1804 mandada formar por el Senor Don Carlos IV.” Printed in Madrid in 1805.

4th. Extracts from a work, entitled “Real Ordenanza para el establicimento y instruccion de Intendentes," &c. Printed at Madrid in 1786.

5th. Decretos del Rey Don Fernando Septimo, from his restoration in 1814, to the end of 1816. Printed in Madrid.

6th. Extracts from the Institutes of the civil law of Spain, by Doctors Don Ignatius Jordan de Asso y del Rio, and Don Miguel de Manuel y Roderiguez, with references to the book and chapter of all the most approved writers, compilers, and commentators on Spanish laws. 7th. Treaties relating to the subject of this compilation.

8th. Commissions, official letters, decrees, proclamations, instructions and regulations of the officers, captains general, intendants, governors, and sub-delegates, in Louisiana and the Floridas.

9th. Some papers showing the absolute nullity of the titles derived from the former British government of West Florida, in Louisiana, Mississippi, * Alabama and West Florida, and [ *10 ] those in East Florida derived from the provincial government there.

The general laws above specified have been translated, or compared by the authorized translator at the department of state, and those of a local character by those whose accuracy cannot be questioned: the originals as soon as it was practicable, were deposited in the department.

I sought assiduously, but have been unable to discover a record or notice of the proceedings upon some grant or concession which had been made by a captain general, intendant, or governor, and disapproved of by the king. I have been unable to ascertain whether any such exist. In the limited time, and with the limited means allowed me, it is impossible to prosecute my inquiries more extensively than I have done. How far the objects of the government and the ends of justice may be subserved by researches instituted at Madrid, under the permission of the king of Spain, among the archives of the council of the Indies, is respectfully submitted.

Having stated the origin of the work with which I have been charged; having sketched its plan; given some account of the labour and difficulty of its execution ; I may, I trust, be excused from palliating its faults, or insisting on its merits. Let it be permitted to me merely to say, that no pains have been spared to render it correct and useful of its necessity there can be no doubt. The numerous inquiries I have had concerning its progress, the solicitude evinced for its completion, and the anxiety to procure copies, sufficiently attest the interest it has excited. In the hope that it may not disappoint the reasonable expectations of the government and the public; and that, whatever may be its deficiencies, it will in the main facilitate the administration and attain

3

VOL. 11.

« AnteriorContinuar »