a building lot and of a suerte for cultivation. The Judge of First Instance referred the matter to Governor Figueroa, who, on August 6th, 1835, replied that the Ayuntamiento had not the power to grant such lands. See ADDENDA, No. XXIV, page 37. But this reply does not seem to have been either right or acceptable, for the matter was afterwards brought before the Territorial Deputation of Upper California, who, on the 22d of September, approved that the “Ayuntamiento of that PUEBLO" might make such grants, and Governor Castro in his order of October 27th, 1835, directs the Alcalde of San Francisco to make the decision of the Territorial Deputation known to "the inhabitants of that PUEBLO." See ADDENDA, No. XXVI, page 42. From this document last cited, three things are evident:

FIRST: That in September, 1835, the Territorial Legislature of Upper California were of opinion that there was a "PUEBLO of San Francisco," and an AYUNTAMIENTO OF THAT PUEBLO," which, consequently, was not the Ayuntamiento originally established for the PARTIDO.

SECONDLY: That in October, 1835, Governor Castro was of the same opinion.

THIRDLY: That in 1835, the "AYUNTAMIENTO OF THE PUEBLO OF SAN FRANCISCO" HAD THE POWER ΤΟ GRANT LANDS FOR BUILDING LOTS.

THE

LAST PROPOSITION ABOVE STATED IS DECISIVE OF THE QUES

TION.

§ 84. For, if the Ayuntamiento of the Pueblo of San Francisco had the power to grant lands, IT COULD BE ONLY BECAUSE SUCH LANDS BELONGED ΤΟ THAT PUEBLO.

I have before shown that the law passed by the Cortes of Spain, on January 4th, 1813, directing all the lands and other property of the PUEBLOS to be sold or granted in private ownership, was held by the Mexican jurisconsults to have survived the Mexican Revoultion of 1821. See § 52 of this argument. Also, Leyes Vigentes, Preface, pages i to iv. Also, ADDENDA, No. XI, page 20. But in the recent case of the United States vs. Vallejo, 1 Black, St. S. S. C. Reports, page 541, decided in 1862, the Supreme Court of the United States decided that this enactment by the Cortes of Spain, in 1813, so far forth as the Crown Lands [or public lands], was repealed by the Colonization Laws of Mexico, enacted in 1824 and 1828. See § 81 of this argument. See these laws of Colonization, ADDENDA, No. XII, page 23, Id. No. XIV, page 25. But as these laws of Colonization thus repealed all former laws relating to public lands; and as by their terms these public lands could be granted only by the Governor, who had no power to delegate this authority, Law of 1824, ADDENDA, No. XIV, page 25, §§ 1, 2, 3, 4; and as lands belonging to private presons, corporations or PUEBLOS were excepted from the povisions of these Colonization laws, Law of 1824, ADDENDA, No. XII, page 23, § 2; and as the Ayuntamiento of San Francisco had the power to grant these

ONLY BECAUSE THEY BELONGED TO THE PUEBLO.

59

lands, see preceding § 83; it therefore follows: that the Pueblo of San Francisco, not being a private person, but still owning lands not subject to the Colonization Laws, and which it had the power to grant, was either "a corporation or a PUEBLO," § 2 above: in other words, was an organized PUEBLO, and, as such, was a CORPORATION, or, at least, a quasi CORPORATION. The established fact that the Ayuntamiento of the Pueblo of San Francisco could thus grant lands, becomes decisive of the ownership of lands by that Pueblo. And this also shows that whereas the lands belonging to Pueblos were excepted from the operation of the Colonization Law of 1824, see ADDENDA, No. XII, page 23, § 2, that law survived as to the lands owned by such Pueblos, and consequently the source of the power of Ayuntamientos of Pueblos to grant such lands is to be found in that act of the Cortes of Jan. 4, 1813, which expressly gives it to them. See the act of the Cortes, ADDENDA, No. XI, page 22, §§ 15 to 17 inclusive. So that Governor Castro and the Departmental Legislature proved themselves better lawyers in this point than Governor Figueroa. See ante § 83.

§ 85. It thus appears that the Ayuntamiento of San Francisco had the power to grant solares to the vecinos of the Pueblo. By what right? Not from the colonization law, for this gave no such right to towns; nor was any power of granting lands under that law capable of being delegated by the Governor or Departmental Junta to an Ayuntamiento, and yet the power was by the Governor and Departmental Junta declared to exist in the Ayuntamientos of the Pueblos, and was exercised by them for years without question, in face of the colonization laws of 1828. The right, then, was superior to the colonization laws, and anterior to them; founded on the laws of Old Spain, and therefore expressly excepted from the operation of the colonization laws. In the decree of August 18, 1824, respecting colonization, 1 Rockwell, 451, ADDENDA, No. XII, page 23, Sec. 2, it is declared: "The objects of this law are those national lands which are neither "private property nor belong to any corporation or pueblo, and can, "therefore, be colonized." The Pueblos, therefore, by their constituted agents, the Ayuntamiento, had an original power to make grants of these lands; and the validity of an execution of this power was not in any degree impaired by the fact that the Governor, representing the Sovereign as the supreme visitor of all corporations, could also make a beneficial disposition of such of these lands as had not been granted by the Pueblo, by conceding them to vecinos of the Pueblo.

1835-1836.

SURVEY OF THE BURI-BURI RANCHO.

§ 86. In 1835 a grant was made to Don José Sanchez, of the Rancho Buri-Buri, see Jones's list, No. 20, and juridical possession was to be given to him. See the accompanying map: "BURI-BURI." This matter was intrusted to De Haro, who was Judge of First Instance in San Francisco. The Pueblo of San Francisco was thus represented in the person of its first officer. He therefore gave notice

60

SURVEY OF THE BURI-BURI RANCHO, A. D. 1836.

to the Mayordomo of the Mission of Dolores, to appoint his surveyor, and appear in court for the purpose of making the survey and finishing the proceeding. See ADDENDA, No. XXVII, page 43. The survey appears to have been had, and to have been wrong, as interfering with the private rights of certain Indians to whom tracts of land had been previously granted in private ownership; for which reason the then Governor, Gutierrez, ordered a new survey. See ADDENDA, No. XXXII. It has been attempted from these proceedings to draw the conclusion that the Mayordomo of the Mission of Dolores [de San Francisco] having been summoned to take part in these proceedings as the only coterminous neighbor (unico colindante) of the grantee of the Rancho of Buri-Buri, therefore the Pueblo of San Francisco could have no ownership or interest in the lands. But in reply it is to be remarked:

FIRST: That by the previous laws the Catholic Missions in California, although not recognized as the owners of lands, were recognized as possessing an easement or servitude in the lands actually occupied by them, until that easement or servitude should be terminated by some legal official act. Ante § 26.

SECONDLY: That by § 17 of the Regulations of colonization of 1828, the lands occupied by the Missions could not be granted in colonization until some proceeding in the nature of an inquest of office had been had in regard to them. See the Law, ADDENDA, No. XIV, page 26, § 17. How, then, could lands adjoining a mission be granted without summoning the officer representing the Mission as the only coterminous neighbor in possession? In our Anglo-American law, when a railroad or other corporation wishes to condemn lands, is a tenant in possession of the lands to be regarded at all, or is he entitled to be summoned and heard? But in the case in hand we see that the Pueblo of San Francisco was represented by the very officer who was to superintend the proceedings, and that the Mayordomo of the Mission, representing only an easement or servitude, was duly summoned.

THIRDLY: That on consulting the maps it is doubtful whether any of the lands in question were within the four leagues of the PUERLO, but its authorities were notified, as the lands might be within those four leagues.

A. D. 1836.

THE AYUNTAMIENTO OF THE PUEBLO OF SAN FRANCISCO GRANT BUILDING LOTS TO RICHARDSON AND OTHERS.

§87. The Territorial Legislature having decided that the Ayuntamiento of the Pueblo of San Francisco had the power to make grants of building lots, (see ante, § 83, ADDENDA, No. XXVI, page 43,) that Ayuntamiento immediately began to exercise this right. Among other grants was one made to William Richardson, bearing date June 1st, 1836, which is printed in full in the ADDENDA, No. XXIV. Other grants of the same kind are in evidence in the case, but this will serve as a sufficient specimen of the whole. From this

Grant of the RANCHO SAN PEDRO, A. D. 1836.

61

one it appears not only that the Ayuntamiento exercised this right of granting lands, but that it considered and styled itself a "corporation."

DE HARO'S ESPEDIENTE FOR THE RANCHO SAN PEDRO.

§88. The next espediente in order of date, of a grant of sitios near the Pueblo lands, is that of Francisco De Haro for the Rancho San Pedro, (see "SAN PEDRO" on the accompanying map of the petition,) being dated at the port of San Francisco, Nov. 22d, 1835, and the grant made on March 14, 1836. Exhibit Hopkins, S. ADDENDA, No. XXXI, page 48. De Haro states that the land has formerely been occupied "by the Indians of the Pueblo of Dolores," but is not now occupied by them. Perhaps he thought that the secularization of the Mission had converted it at once into an Indian Pueblo. But the Governor did not think so, for in his informe dated Feb. 26, 1836, he directs "the Administrator of the Ex-Mission of San Fran"cisco de Asis to report upon the petition," and Flores, the Administrator, reporting upon it on March 9th, 1836, styles it the Ex-Mission, (esta Ex-Mission,) and says that the lands are more than four leagues distant from it; but he states that, in his opinion, the tract "should "remain to this 'COMMUNITY,' when it shall be erected into a Pueblo; "(Pero con motivo de no estar señalados les ejidos ó proprios que me "parece deben quedar á este cuando se erije en Pueblo.") In fact the Mexican Government, by a decree of November 7th, 1835, had suspended for the time being the further execution of the secularization laws, so that no Indian Pueblos could for the present be formed, and doubtless both the Governor and Administrator knew that fact. the decree, 1 Rockwell, 462. Halleck's Report, Appendix, No. 16. Jones' Rep., 63. ADDENDA, No. XXVIII, page 48. From this last expediente also it is apparent:

See

FIRST: That although there was a PUEBLO OF SAN FRANCISCO, with an Ayuntamiento, Alcaldes and Regidores, (§§ 72 to 77,) there was no PUEBLO at the Mission of Dolores, which still lived only in the expectation of being erected into an Indian Pueblo at some future time.

SECONDLY: That this Indian Pueblo HOPED to have ejidos assigned to it at a place called San Pedro, which was four leagues from the Mission of Dolores, and consequently nearly five leagues from the PUEBLO of San Francisco, and therefore far beyond the lands claimed by it.

THIRDLY: That the reason why the municipal authorities of the Pueblo of San Francisco were not consulted upon this espediente was, because the lands were far beyond the limits of its own property, that is to say, beyond the limits of the four square leagues belonging to the PUEBLO of San Francisco.

FOURTHLY: That this espediente fully justifies the definition I have given of the word PUEBLO in § 9 of this argument: that is, in a general sense, a hamlet, a village or any other settlement; but in an exalted and specific sense, an organized town,— -a body politic and cor

porate. Here, in the same expediente we find the petitioner styling the Mission of Dolores the PUEBLO of Dolores, and the administrator of the Mission declining to recommend the prayer of the petition, because the Indians who then lived in COMMUNITY, (See § 17 of this argument,) hoped thereafter to become a Pueblo, or as the Spanish has it "to be erected into a Pueblo." How, then, is this to be explained? Dolores a PUEBLO, and still expecting to be erected into a PUEBLO? The explanation is simple: the Mission of Dolores was a PUEBLO in the generic sense of hamlet, village or settlement: it hoped to be erected into a PUEBLO an organized town, or PUEBLO politic and corporate. See 9 of this argument. That the Mission of Dolores had not been erected into a organized PUEBLO, politic and corporate as late as April 8th, 1844, will appear hereafter in § 114 of this argument; that it was never erected into such a PUEBLO will appear in § 118 of this argument.

SUSPENSION OF THE

A. D. 1838.
AYUNTAMIENTO OF

SAN FRANCISCO: JUSTICES

OF THE PEACE SUCCEED THE AYUNTAMIENTO.

We find evi

§ 89. How long did this Ayuntamiento continue? dence of its existence down to the year 1838, as above referred to, in Exhibit No. 9, annexed to the deposition of M. G. Vallejo. We find in Exhibit No. 1, and duplicated M, annexed to the deposition of R. C. Hopkins, under date of December, 1835, and January, 1836, mention made of Joaquin Castro, who was then Regidor, and also, in January and July, 1836, of Gregorio Briones and José de la Cruz Sanchez, who were then Regidores; and in December, 1837, of the then Sindico, Blas Angelino. But it is probable that the Ayuntamiento elected in January, 1838, ut supra, was the last Ayuntamiento of the Pueblo. We have already adverted to the fact stated in the Decreto de 23 de Mayo de 1812-Leyes Vigentes, p. 28, Art. II, ante § 47, ADDENDA, No. X, page 19, Art. II-that Pueblos might lose their Ayuntamientos by diminution of their population. We find in the Message of the Governor to the Departmental Junta, delivered on February 16th, 1840, the following passage: "There is no Ayuntamiento whatever "in the Department, for there being no competent number of inhabit"ants in any of the towns, as provided by the Constitution, those then "existing had to be dissolved; and only in the capital there ought to "be one of such bodies." Document D. P. L. in the case. See ADDENDA, No. L, page 70, title Ayuntamientos. It is thus evident that between the election of the Ayuntamiento of the Pueblo in January, 1838, and February, 1840, that body had ceased to exist, because its electoral basis of population required a numerical figure higher than that represented by the actual population.

§ 90. The reason of this failure of the requisite basis of population was two fold. For by the Mexican Constitution of 1836, the