CHAPTER XVIII.

Land Titles and Laws in California.

To those about emigrating, or who have already gone to California, with a view to settle in that delightful country, it is of the utmost consequence to know upon what terms the title to lands is held. Those who have gone, or are going, for the mere purpose of digging gold, and have no intention to remain permanently in the country, will not feel particularly interested in this chapter; while the general reader, who cares nothing about land titles, will do wisely to pass it over.

There is no question so important to the actual settlers of California, as that of their right to the lands upon which they live, or upon which they intend to live. Being a question which lies at the basis of all society, it is of course a most exciting one, and therefore should be settled with the utmost despatch. It is not a question which brooks delay, because the lands in California are not surveyed, the government of the United States are not in a position to sell a single acre; while, at the same time, a great rush of emigration is in progress, which must have land for cultivation. It is true that these emigrants may squat on government land, and take their chance of getting their farms when`ever the land is brought into market. But the settler may not choose to hunt up land which is not claimed by individuals. He may wish a fine farm in the Napa Valley, or in that of Petaluma or Sonoma, which has already been granted to

an actual occupant by the government of California, acting under the authority of the supreme government of Mexico. The people of California, especially those extensive landed proprietors who were anxious for annexation to the United States, never doubted for a moment that their estates would be at least as secure under the protection of our government as under that of Mexico; and numbers of American citizens did not hesitate to purchase, at fair prices, portions of the large ranchos, considering the deeds of the rancheros, who held valid grants from their own governments, in all respects equal to a patent from the land office at Washington. The man who should have suggested that the United States would rob the rancheros and their grantees of their lawfully acquired lands, would have been scouted as an enemy and slanderer of our nation. In fact the idea never occurred to any one, that the government at Washington would enter into a paltry controversy with the land-owners, and endeavor to wrest from individuals what were their rights, and what were respected as their rights, · under the mean and oppressive tyranny of Mexico. That any statesman, that any law-maker, capable of filling a higher political station than that of town trustee, should propose or suggest any intermeddling with the vested rights of the Californians in their lands, was a notion never entertained, for a moment, even by the hide-seekers. No hesitation was therefore felt by American settlers, about paying money and taking deeds for lands belonging to the rancheros; and, at this present moment, hundreds of smaller farmers have parcelled out some of the large ranchos into farms, which still appear of great size on the Atlantic side of the continent, but which are really none too large for grazing purposes.

The terms of the treaty with Mexico, by which we acquired our present title to California-for, although we conquered California, our rights by conquest are merged in the subsequent purchase-appear to guarantee the rights

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of all who held land in California at the date of the treaty; and, even without such a provision, I suppose that nations, like private persons, purchase lands subject to all incumbrances and prior conveyances. But assuming that we take title as conquerors, the principle is the same, as will appear hereafter.

The land tenures in California are based on the colonization-laws of the republic of Mexico, which, for the most part, are transcripts of old Spanish laws, framed to encourage the settlement of remote districts in the New World by military and other adventurers. The lands thus granted to an individual are generally of great extent; the uses to which they are put absolutely requiring that they should be so. The occupation of actual settlers is chiefly the raising of cattle and horses, and to carry on this business to any considerable extent, an extensive range of land is requisite. If the land were cut up in such small parcels as quarter-sections, or even sections, cattle-breeding and horse-raising in California would soon be on a par with the same pursuits in Illinois and Missouri.

The Spanish measurements of land are as follows:-The "sitio de ganado mayor" is a square, each side of which extends five thousand "varas Castellanas" or Spanish yards. The English designation of this quanity is expressed by the term "square league." The "sitio de ganado menor," is somewhat less than the "mayor," but both are rated in round numbers at five thousand acres respectively. Then follow the " caballeria" (lot), the " 'milla cuadrada" (square mile), the "suerte" (which means, literally, "a chance"), and the "huerta" or garden-spot. The two "sitios" before mentioned, are principally used for the measurement of lands, and indeed the square league is the only measurement in use for ranchos. The smaller parcels are granted only on the town lands, and for the purposes of a grazing farm would amount to nothing.

The titles were granted by the governor and commander

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in-chief, and sometimes confirmed by the departmental Junta. The sessions of that body, however, were so irregular, and so seldom held, that its consent appears in but few title papers in California, nor was that consent ever deemed essential to the perfection and security of a title. The deeds specified certain conditions relating to the actual settlement of the rancho, stocking it, building upon it, and otherwise improving the property, which requirements are particularly alluded to in another chapter. Some of these grants had annexed to them, conditions too burthensome to be complied with, and of course the rancheros disregarded them. Indeed, the performance of these conditions was practically waived by the government-not a solitary case existing in the country where non-performance worked a forfeiture of the estate, although some grants provided that the land should revert to the government if all the conditions were not performed.

Another oppressive feature in some of these grants was, a proviso in restraint of the alienation or incumbrance of an estate, thus divesting it of the character of an estate in feesimple. But this unjust and impolitic limitation was never regarded by the rancheros, who sold and mortgaged their lands at pleasure; and although these conveyances and incumbrances were perfectly notorious, and were registered by the civil authorities, and most have come to the knowledge of the government, no attempt was ever made to interfere on the part of the grantor. Indeed the insertion of clauses in restraint of alienation and incumbrance were never lawful, but void under the laws of Mexico. It has even been said that all these onerous and impracticable conditions were contrary to the policy and law of nations, and void. Those who are curious on this point can consult Vattel, chap. x., b. ii. ; chap. xii., b. ii., and chap. vii., b. i., where the rights of sovereigns and private owners with respect to this kind of property are fully discussed. content, however, to rest the point of alienation upon the

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laws of Mexico herself, which never prohibited the alienation or incumbrance of estates by the legal owners, and never authorized any public officers to impose such restraints in the grants of land. In fact these latter provisos were nothing more than an arbitrary assumption of power by the local governors of California, and sometimes they had not even the governor's sanction, but were introduced by his private secretary without consulting him. Of course such unauthorized restraints could not possess the slightest validity, while the grant itself, being authorized by the law of Mexico, was entirely valid.

It is not to be supposed that these restrictions were designed merely to oppress, annoy, or control the settler. It would be most unjust to the governors and secretaries who imposed them, to assume that their motives were tyrannical. The Spanish law is ever tender of the rights of widows and minors, and while its tedious system of litigation oppresses every one else, it has a most paternal regard for those who are naturally helpless, and subject to be cheated and injured. The Spanish character everywhere partakes of this generous feeling in behalf of women and children; and if it be possible for a public functionary belonging to Spain or any of her offshoots to be honest a proposition which I do not by any means affirm--the exception enures to the benefit of females and minors. Now these restraints on alienation were inserted in some grants for the humane object of preventing the estate from being gambled away by the reckless, or encumbered by the thriftless. But although the ranchero sold his land with the full knowledge, but without the express consent, of the government, no forfeiture was ever exacted or claimed. The land was in most instances, granted to the settler, "para su beneficia y el de su familia,”—for his own benefit and that of his family— but those words were never deemed to vest a legal title to the estate in the family, but solely in the party named in the grant; and I have no doubt that if the question had