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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 the just share of reputation to which my contributions might be entitled, I entered on the execution of the work with a sincere distrust 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 Emperor 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
There are in Cuba a Captain General, Intendant, and Superin-
By the direction of the President, I have also collected some
If Spain then extended to them some indulgence, in consequence
The justice or policy of the conditions imposed on the inhabitants
which were comprehended in these titles, there can, it is presumed,
To avail myself of every facility towards making the researches
The Curia Philipica and Febrero Adicionada was found to
The compilation which I now send to your department is, 1st.
2d. Various laws, ordinances, and decrees, in relation to the
3d. Extracts on the same subject, from the " Novissima Recopi-
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 attainVOL. II.