Spanish Land Grants

WPA History of the Spanish Land Grants

The following is the original Introduction to the Spanish Land Grants in Florida, a five-volume transcription and abstraction of the Spanish land grants created and published in 1942 by the WPA's Florida Historical Records Survey, under supervision of the State Library Board. While historian Louise Biles Hill wrote the Introduction specifically as a guide for readers of that original publication, it is still useful as an extensive history of the creation, use and preservation of the Spanish land grants. Until the State Archives of Florida made them available online, the WPA's publication was the main source for researchers on the Spanish land grants and the Second Spanish Period Florida (1783-1821). For more recent research on these materials and the Second Spanish Period, see Published Works.

Contents

1. Introduction
2. The Spanish Archives
3. British Land Grants in Florida
4. Spain's Land Policy
5. Board Of Commissioners--West Florida
6. Board Of Commissioners--East Florida
7. Final Disposition Of Land Claims
8. Reasons For Non-Confirmation

Spain's Land Policy

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 peoniaem> 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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