No. 877.
Mr. Romero to Mr. Bayard.
Washington, July 3, 1888. (Received July 5).
Mr. Secretary: Your note of the 16th of April last, as an inclosure to which you sent me a report of the Acting Commissioner of Public Lands, bearing date of the 15th of March previous, and having reference to the complaint of J. Escobar y Armendariz, a Mexican citizen, owner of the Santa Teresa tract, situated in Doña Ana County, in the Territory of New Mexico, was transmitted by me to the Mexican Government, and as I have now received instructions from Mr. Mariscal on this subject, I must once more invite your attention to it.
The petition of Mr. Escobar y Armendariz, which I transmitted with my note of November 25, 1887, raised three points:
- (1)
- That the title to the Santa Teresa tract was valid according to Mexican law when the land was transferred, in virtue of the treaty of December 30, 1853, to the United States.
- (2)
- It asked for a confirmation of said title by the Congress of the United States, and
- (3)
- That a new survey of the land should be made, the owner being notified.
With regard to the first point, it appears from the petition of Mr. Escobar y Armendariz that Mr. H. M. Atkinson, surveyor-general of the Territory of New Mexico, expressed the opinion, in December, 1878, in view of the evidence submitted to him, that the validity of the concession of the Santa Teresa tract was fully shown, but that Mr. George W. Julian, the new surveyor-general, expressed a contrary opinion, based solely upon the fact that, according to article 6 of the treaty of December 30, 1853, betweeen Mexico and the United States, it was necessary for the concession, in order to be valid, to have been recorded in the archives of Mexico, and that no evidence had been furnished that this requirement had been complied with.
The entire question in respect to this matter is, therefore, in the opinion of the surveyor-general, reduced to one fact, and that is: Was the concession of the land of which Mr. Escobar y Armendariz is the present possessor recorded among the archives of Mexico?
It seems that Surveyor Julian understands by archives of Mexico—those of the City of Mexico, and not those of the chief towns of the other territorial divisions of the country—which divisions were first made by the Spanish Government, and afterwards adopted by the Mexican Government—and I do not consider that interpretation of the treaty to be well founded.
It may very easily have happened that the authorities of the provinces into which the vice-royalty of New Spain was divided were authorized to make grants of land for the validity of which the approval of the viceroy was not necessary, in which case the proper evidence would be found only among the archives of the respective local authorities, and not among those of the City of Mexico.
It appears evident to me that the object of the stipulation referred to was to prevent the approval of fraudulent grants forged by speculators with a view to acquiring lands that had never been granted to them by either the Spanish or the Mexican Government; as, however, it is [Page 1304] well known in this case that the García family, to whom the grant was made, has been in legitimate possession of the land for about a century, that the grant was made according to the laws then in force, and that while official proof of these facts can not be presented, this is due to the circumstance that the archives of the State of Chihuahua were destroyed by the invading American army during the war of 1846 and 1847, it does not appear that Surveyor Julian’s interpretation of the treaty can be sustained.
If there can be any doubt whether the title issued by the Spanish Government in favor of the Garcia family was registered, there is no doubt, according to the statement made by Mr. Escobar in a communication addressed by him to the secretary of foreign relations of Mexico, on the 25th of May last, that that grant was confirmed by the Mexican authorities and duly recorded among the public archives of Chihuahua.
With respect to the second point of Mr. Escobar’s petition, I think it proper for me to state that, if the Secretary of the Interior and the Commissioner of Public Lands do not think it incumbent upon them to lay before Congress the statements made by the interested party in behalf of his rights, the Mexican citizen whose interests are at stake in this case will be deprived even of the right of being heard in his own defense, inasmuch as he was not heard before the adverse report of Surveyor General Julian was prepared, and as, being a foreigner, he can not lay a statement before the United States Congress otherwise than through his own Government. The way in which his statement is to be brought before the officer who is to decide this ease is a secondary question, and if the Department of the Interior feels any hesitation about this, the Government of Mexico trusts that none will be felt by the Department of State.
With regard to the third point, the opinion of the Commissioner of Public Lands appears to me to be well founded, viz, that a resurvey of the land will depend upon the decision that may be adopted in respect to Mr. Escobar’s claim by the law-making power, and that the survey already made, which is considered incorrect by the interested party, is of a purely provisional character, which will not stand in the way of its subsequent rectification.
In view of the connection existing between the case of Mr. Escobar and the stipulations now in force between Mexico and the United States with respect to land grants, and with the design of justifying the request made by Mexico of the United States that the rights of this Mexican be recognized, I think proper to set forth certain considerations touching the question in general.
When the United States acquired a considerable portion of the territory of Mexico first by the treaty of February 2, 1848, and afterwards by that of December 30, 1853, both Governments agreed in their desire to proceed with equity (respecting the right which had been acquired to the territory that was changing its nationality by its inhabitants, who were likewise made to change their nationality by the force of circumstances), that the grants of land made by the Spanish or the Mexican Government prior to the dates of both treaties should be inviolably respected, and in article 8 of the first and in article 5 of the second their right of ownership to all that belonged to them was recognized, and the privilege was granted them of disposing thereof as they might think proper, without any obligation on their part to pay, on this account, any tax, impost, or charge of any kind whatever.
A number of forged land grants having been presented in virtue of [Page 1305] the first treaty, the United States Government endeavored in the second to remedy that evil, by stipulating that no titles should be recognized save such as should have been recorded among the archives of Mexico. The object of this stipulation, however, was merely to put a stop to the abuses which had been committed in virtue of the first treaty by the presentation of fraudulent grants, and by no means to deprive legitimate land-owners of their rights in case of their inability to furnish evidence that their land had been granted to them, or that it had been recorded, when the archives had been destroyed by the invading army of the United States.
The United States Congress, desiring to act with justice in this matter, recognizing legitimately-acquired rights and putting a stop, at the same time, to the abuse of fraudulent grants, enacted the law of July 22, 1854, which provided for the appointment of surveyors-general for the territories ceded by Mexico. It was made the duty of these officers to examine the grants in question and to present their reports to Congress, in order that that body might decide concerning each case.
This measure, which, as I have already remarked, shows, in my opinion, the interest that was taken by the United States in this matter, has, in practice, been followed by a result very different from that which was expected, its result having been to prevent, or at least indefinitely to suspend, the confirmation of the titles legally acquired by the inhabitants of those regions.
You, Mr. Secretary, who have spent several years of your life as a prominent member of one of the legislative bodies of your country, taking an active and important part in its diliberations, well know what a mass of public business has to be examined and settled by both Houses of Congress; the amount of such business increases day by day, rendering it very difficult for the legislative branch of the Government to give any attention to matters of secondary importance, which affect the interest of private individuals only.
Moreover, the circumstance that these cases have to be decided by Congress renders it incumbent upon the interested parties to employ attorneys in this city to defend their rights, or at least to endeavor to secure a decision concerning their titles; this requires a considerable outlay, which in many cases would be greater than the value of the lands themselves.
The Committee on Lands of the House of Representatives, in its report No. 675, estimates the number of acres included in grants to private persons, now awaiting confirmation by Congress, at 10,000,000 in the Territory of New Mexico alone, at 3,000,000 in the State of Colorado, and at 500,000 in the Territory of Arizona, making 13,500,000 acres in all.
The Secretary of the Interior, in his report for 1880, stated that, in the course of thirty years more than a thousand grants had been laid before the surveyors-general, but one hundred and fifty of which had been transmitted to Congress, and of these latter seventy-one had been decided by that body; that is to say, 7 per cent. of the grants submitted for examination.
At this rate, several centuries will have to pass before those which have hitherto been submitted can be decided. These are estimated as being but a small portion of those which really exist.
Thus it is that the Secretaries of the Interior, the Commissioners of Public Lands, and the United States surveyors-general in New Mexico have admitted in their annual reports to Congress the insufficiency of the act of July 22, 1854, to meet the object that was had in view, viz, [Page 1306] to fulfill the obligations contracted by the United States towards Mexico, and to do justice to the inhabitants of those regions, whose rights of ownership, until they obtain the confirmation of their titles, are held in abeyance, which very naturally affects the progress of those regions, it being uncertain who is the owner of millions of acres situated there.
So serious is this evil that a number of bills have been introduced into the United States Congress for the repeal of the act of July 22, 1854, and providing for the establishment of special courts charged with the examination and decision, in each case, of the merits of the claim. This method was adopted in States whose situation was similar to that of the Territory of New Mexico, such as Louisiana, Florida, and California, and the result was very satisfactory.
Residents of the Territory of New Mexico, of Mexican origin, have frequently called at this legation, soliciting its good offices in endeavoring to induce the United States Government to confirm, in pursuance of existing treaties, the grants of land that had been made to them by the Spanish Government or by that of Mexico; as, however, they have furnished no evidence that they had retained their Mexican nationality, I have always told them that I did not consider myself authorized, without instructions from my Government, to interfere in these matters, at least, in private cases; but, as Mr. Escobar is a Mexican citizen, and as my Government has instructed me to transmit his complaint to you, it has seemed proper to me to state the above facts, as a proof which is, in my judgment, conclusive of the evils of the present system, which directly affect the case in question; the principal ones of these are two in number, viz, the difficulties met with by the interested parties in obtaining a hearing before Congress in matters of a semi-judicial character, and the quasi impossibility of Congress attending to these matters and deciding them with the expedition which their nature requires.
Be pleased to accept, Mr. Secretary, etc.,