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LAND LEGISLATION IN MEXICO
HERBERT I. PRIESTLEY, Ph.D.
University of California The history of the land and of land legislation in Mexico shows that problems of its ownership and utilization have always been acute since the first days of the Spanish conquest. Throughout the known history of the country land has been a traditional object of attack by one or another of the economic groups whose interests conflicted with those of other groups. When Cortés and his companions reduced the Aztec Confederacy to definitive submission in 1521, they found themselves in political control of a society whose basic organization was agricultural and whose land system was relatively highly developed, but in which the idea of direct ownership had not fully matured.
In this land system there was recognition of individual ownership (apparently in fee simple), of possessory rights, of feudal tenure, of communal holding, and of dedication of special lands to the purposes of the state and the religious cult. Every member of society above the station of a slave had a share or interest in a piece of land, and that interest remained his as long as he availed himself of his privilege. The land was held by the chief, by the lesser chiefs, or by the clans. Ownership was carefully recorded
. on maps, so that the limit and extent of each holding could be readily determined. The greater part of the land was held by the chief and the lesser chiefs.
Lands held by the chief and considered inalienable were temporarily bestowed on the lesser chiefs who did homage for them but paid no rent. Such lands reverted to the chief upon the demise of the holders. Certain of his lands were set aside for supplying the army with food, and the lands of the temples were presumably definitively set aside for the support of the priesthood and the cult.
Lands held in proprietorship by warriors or lesser chiefs (they began to have such tenure as early as the Chichimec conquest of Tezcoco under King Xólotl in the twelfth century) were transferable in inheritance by primogeniture. The lands of the clans were communally controlled, and could not be alienated but were periodically redistributed among the heads of families within the clans. The size of allotments varied with the needs and deserts of the recipients. Neglect of an allotment for two years brought about its redistribution. Even below the members of the clans were freemen who worked lands of the lesser chiefs on payment of rentals in kind, and still below these were glebe serfs bound to the soil, probably remnants of an early conquered agricultural population. For the enforcement of this land system an elaborate legislation had matured before the coming of the European conquerors.
Thus it is evident that the Aztecs had developed an agrarian system approximating the complexity of the system in vogue among the Spaniards and it might have been expected that it would have
been in some measure respected by the conquerors in conformity with the usages of civilized societies. Such was not the case, how
The lands were appropriated by the conquerors without appreciable respect for the rights of any of the primitive holders. An early observer said:
The existence of untilled lands of the clans (calpulli) has been the cause of disorder in the lands which have been and are given to the Spaniards, for if they see or hear of untilled lands they ask the governor for them, and the one sent to examine them takes scant pains in favor of the Indians. If some good Christian is named for the purpose, the person who asks for the land has ways of hindering him or of getting someone else appointed who pleases him
and so the opinion is always rendered that the lands can be given to the applicant because they are not under cultivation.
And even if the Indians aver that they are holding the lands to give to those who may marry or to those who have no land this is of no avail, for it is claimed that they do so maliciously. There is no farm nor land which has been given to Spaniards which has not been given to the prejudice of the Indians, as much on account of the injury which they suffer as that they have been deprived of their lands and their boundaries have been narrowed, and they have been caused continual trouble to protect their fields. But in spite of their trouble their crops are eaten up and destroyed by the herds.
In some towns they are so surrounded by the farms of the Spaniards that they have no place left to sow in. . .
This is especially true in towns which are near Spanish towns or where there are good lands.1
Mr. T. Esquivel Obregón believes that more dispossessals occurred by Indian absorption of land on Spanish haciendas than by Spanish intrusion on native lands. Waiving the argument that the haciendas were entirely Indian in the first place if they were cultivated at all, it is pertinent to note that Spanish law provided for the erection of Indian towns within hacienda areas when the native population reached a certain number. That the Indians were in
a cited by their “Protectors” to covet and bring suits to obtain lands occupied by the Spaniards is no doubt also true, but the Indices of the Department of Tierras in the Archivo General de la Nación do not bear out Mr. Esquivel's conviction that these were more numerous than dispossessals of Indians by Spaniards. The essential truth is that while the political structure reared by the Aztecs fell, communal landholding by their Indian successors continued.
Not only were the lands of the Indian communes molested, but so also were those of the lesser chiefs and the supreme chief, and those of the temples. In specified cases the King of Spain issued decrees confirming the possession of their lands to Indian chiefs, and in 1532 general legislation provided that grants to Spaniards should not disturb Indian lands, as again a law of 1594 ordered that lands of theirs bestowed upon others should be restored to them. The lands of the temples were probably taken in toto, as it became the practice to erect churches on the sites of the temples when feasible. Enough has been said to show that the primitive
1 Alonzo de Zurita, Brere y sumaria relación. (García Icazbalceta, Nuera colección de documentos para la historia de Jlerico, III. 95-96.)
2 Influencia de Espana y los Estados Unidos sobre Merico, 293-295.
land system, save where the communes were concerned, was effectually swept aside by the Spanish occupation.
The land in Spanish America was granted to the crown of Castile by the pope as a feudal fief. Beginning with this legislation the theory developed that the king of Spain held the land in private dominium as well as the sovereignty over it. The monarch gave these lands at pleasure as feudal holdings, or as absolute grants, or he sold them either definitively or under perpetual (sometimes terminable) annual payments called censos.
Conquering expeditions went out under leaders who made grants to their followers as rewards for services in the conquest. These grants might be within or without the bounds of a newly established Spanish municipality. The normal procedure gave to the leader a huge area of land with vague natural bounds, over which he became governor. In it he established one or more towns, giving them the organization and landholdings of Spanish Peninsular towns. The landholdings were designated as peonías and caballerías. The grantee of a peonía received within the town proper a houselot (solar) measuring fifty feet wide by one hundred long. Outside the residential area he received a plot of one hundred fanegas (acres) of arable grain land, ten fanegas of corn land, two huebras (yokes) of land for a garden, and eight huebras for a dry-farm orchard. He also received pasture land sufficient for ten sows, twenty cows, five mares, one hundred sheep, and twenty goats. The grant called the caballería comprised a houselot within the town proper one hundred by two hundred feet in dimension, and all the units of outside land were to be five times as large as those of a peonía. The houselots and tillable areas had definite metes and bounds, but the pasture lands were held by the heads of families, ten or more in number, as communal property. Such as were not taken up by the original settlers were reserved as royal lands or propios, for sale to future settlers, or for lease for municipal revenues. Not infrequently the land reserved for propios proved too small in area if the town outgrew the original plan. The agricultural lands were to be so divided that each recipient should receive a due portion of the irrigable and the non-irrigable land.
On one side, or possibly surrounding the residential part of the town, was set aside the land known as the ejido. This land was to be reserved in such quantity that, although the settlement may grow greatly, there shall always be sufficient space for the people to go out for recreation, and that the flocks may go out without doing any damage."1 The ejidos of the Spanish towns have practically disappeared, and are not the object of modern revolutionary legislation, as are those of the Indian towns.
The total area granted to the municipality was four square leagues. Residence for a term of five years was prerequisite for
i Ordenanza de pobladores. No. 129 (Documentos inéditos de Indias, VIII.) (Recopilación de Indias, Lib. IV, tit. VII, ley 13.)
acquisition of title in fee simple to such lands. No person might receive more than five peonías or three caballerías of land. Each new settlement was to be five leagues distant from any other.
The foregoing provisions were to provide for agricultural municipalities composed of Spanish husbandmen. There were three other early manners of disposing of the king's domain. These were: by sales of lands in variable quantities to individuals, by grants (mercedes) to individuals (Spanish or Indian), and either by new grants or confirmation of existing tenures to Indian towns or groups of Indians ubicated on traditional holdings.
Sales of lands gave possession in fee simple and not in feudal tenure. They might also be made for the payment of a perpetual or terminable ground rent called the censo. Lands so sold constituted a sort of fee-farm. Many such still exist in Spanish America. Apparently there was no legally imposed limitation on the amount of land which might be sold to a single purchaser. Sale had by 1630 become the most common method of conveyancing land.
Besides the grants to municipal colonists as outlined above, there was the rural grant which contemplated no town organization. Grants of this character were made particularly to accommodate the large grazing interests, and were conceded in units called sitios (sites for raising cattle). The sitio was at first circular in form, with a diameter of 5000 varas (a vara is a yard of 33 inches), but the rectangular form was soon adopted. There were two sizes of sitios, the larger one, for raising cattle, mules, and horses being called the sitio de ganado mayor, and the smaller one, for raising small cattle (sheep, hogs, goats), the sitio de ganado menor. A sitio de ganado mayor was a square league of land. It measured 5000 varas on each side, containing 25,000,000 square varas or approximately 4438 acres. The term sitio or square league is still traditionally used as the unit for expressing the size of large landholdings which descend from colonial times, though the metric system has been used in current legal descriptions since 1863. Fractions of the square league were measured in caballerías, of which it contained 41 23-1000.
The sitio de ganado menor measured 3333 1-3 varas on each of four equal sides. It was, like the sitio de ganado mayor, to be laid out on the cardinal points of the compass, the sides running due east, west, north, and south. It had an area of 11,111,111 1-9 square varas, and contained 18 232-1000 caballerías or approximately 1928 acres or 7802 hectares.
It was the original intention that the entire grant to an individual should be limited to a square league or sitio. A law of 1574 provided that no grants should be larger. Special grants did often exceed such size, and under the Mexican law of 1824, as we shall see, regular ones became much larger. The grants of sitios de
1 M. Enríquez, Ordenanza, Jan. 25, 1574, printed in M. Galván, Ordenanzas de tierras y aguas, 207.
ganado mayor may be considered as the bases of the organization of many of the large haciendas of modern times.
Many influences combined to create large holdings, although the smaller ones were amply provided for by the Ordenanzas de Pobladores mentioned above. The cheapest thing with which to reward faithful subjects was land. There were the large areas not used by towns, Aztec lords, or Indian towns, which were called realengas or terrenos baldíos. There was need to create large estates, the owners of which would serve as guardians of frontiers against savage Indians. The careless, unskillful, or selfish measurement of grants also made for great size of holdings. Instead of pacing off or measuring with proper instruments, grantees adopted the practice of measuring vaguely from conspicuous trees, rocks, or other natural landmarks, and of occupying lands the exact area of which was not determined at all. The legal practice of leaving unoccupied margins between towns, Indian or Spanish, and other grants, naturally promoted a gradual extension to absorb such interstices. Legal tenure of such lands not held under titles was made possible by various laws, the chief of which, in 1754, straightened out the property situation by the process of composition, that is, purchase at a nominal sum of lands held in mere possessory right for a prescriptive period of ten years.
The Indian towns were frequently confirmed to their native inhabitants, as has already been stated, by royal grants. New towns for them were also organized as opportunity offered. In these towns the Indians lived as joint, corporate, communal owners of their lands. Such towns were brought into municipal relations with the government by a law of Charles V, issued March 21, 1551.
The most effective legislation for protection of Indian lands was that which established for them the fundo legal. This word does not appear in colonial legislation, but is mentioned by Rodríguez de San Miguel to denote lands conceded in communal holdings to Indian towns. The fundo legal measured six hundred varas toward each of the cardinal points, starting from the church, which was at the center of the town. The legislation of 1551 was due to agitation begun in 1546 to have Indians settled in towns. On May 26, 1567, the viceroy Falces promulgated his Ordenanzas, which provided originally that Indian towns should have five hundred varas of land, and “as much more as was necessary” for sowing. Orders by Philip II attempted to preserve their lands for all subjugated Indians. After an Indian town should be settled no grant might in future be made to Spaniards within a distance of one
1S. Moreno Cora, Reseña histórica de la propiedad territorial en la República Mericana, (Leyes Federales vigentes sobre tierras) 18.
* Op. cit., 19.
: J. N. Rodríguez de San Miguel. Pandectas hispano-mericanas II, 305. zález Roa and Co v arrubias, El proctema rural de México, 25.
* Galván, Ordenanzas de tierras y aguas, 189; F. F. de la Maza. Código de colonización y terrenos baldos. No. 12, p. 12.
5 De la Maza, No. 17, pp. 17-18.