USA > Arkansas > Biographical and pictorial history of Arkansas. Vol I > Part 2
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France was then greatly oppressed with debt and a deranged currency. The Duke of Orleans was then (1716) regent for the infant king, Louis XV. Law was a man of large private fortune, and his suavity of manner and great talents commended him to the regent. In 1716 he established a private bank in Paris. In
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HISTORY OF ARKANSAS.
1717 he, in connection with his bank, established the " Company of the West," with a royal grant in fee of the province of Louisiana, which among other recitals contains the following : "To enable said 'Company of the West' to make permanent establishments, and to put in a condition to execute all the en- terprises it may project, we have given, granted and conceded ; and we give, grant and concede, by these presents, in perpetuity, all the lands, harbors and islands which compose our province of Louisiana."
The eighth article declares that "the company may sell and alienate the lands of the concession, as they think proper, and may grant them in fee-simple -" we wish, that those who have no grants or patents from us may be required to take con- cessions from the company, to assure themselves of their rights to the lands they possess, which shall be made to them gratui- tously."
The tenth article provides that " the company may establish governors and other superior officers, as they may judge fit, which shall be presented to us for our commissions, they may dismiss them and establish others."
"The said company as lord high justiciaries in the country ceded to them, may establish judges and other officers whenever they may deem it necessary, and to depose and replace them."
Judge Joseph M. White, who digested the laws of France and Spain, says : " These were the leading features of an ordinance dictated by Law, to create an empire for France in . America, and to supply from the mines of that continent enough gold and silver to support that system of banking which he had introduced in France, based on sound and solid principles."
But in 1718 his bank was converted into the bank royal, and charged with the management of the deranged royal revenues. Books were opened that the public, or rather private citizens, might take stock in the bank royal, which had at its helm the greatest financier the world had produced (in the estimation of France). Prince and peasant alike shared this delusion, which amounted to a national mania. The stock soon rose to twenty times its original cost.
Law gathered his colonists on this tidal wave, and shipped
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them to Louisiana before the bubble burst, and left France a financial wreck ; some of these families, as we have seen, settled at Arkansas Post, and became the first permanent European settlers in Arkansas. New Orleans, The Balize, Kaskaskia, Cahokia, St. Louis, St. Genevieve, Prairie Du Roche, Peoria, Detroit and many other places received large accessions under this impetus to colonization. The governors of districts and commandants of posts were authorized to grant concessions of land to actual settlers.
By royal edict in 1725 the companies of the east and the west were united under the name of the " Company of the Indies," and it was again declared that it should enjoy its privileges in perpetuity, and the grant of Louisiana was confirmed. After an existence of fourteen years the "Company of the Indies " surrendered its charter to the crown.
Judge White is of opinion that Law could have carried out his vast designs if he had been able to resist the wants of an effete and impoverished aristocracy, which drove him to over- issue and inflation, collapsed the bank in two years, and brought bankruptcy to France.
The reader must not forget that various authors call the cession of Louisiana to Law and company by different names : " The Mississippi Company," "The Company of the West," "Law's Company," "Law's Bubble," and " The Company of the Indies." Nor must it be inferred that the first French colonists in Louisiana came under the auspices of Law's company.
A few straggling Canadian French voyageurs preceded Law's colonists. Vincennes on the Wabash river was settled by them as early as 1710. Peoria on the Illinois river, St. Louis and St. Genevieve on the Mississippi, and other places of less note were first occupied by Canadian French, but to Law belongs the credit of imparting the character of colonies, and giving impetus to the settlement of the country.
Spain, as we have seen, was entitled by right of discovery and the law of nations, to Louisiana, one hundred and thirty- two years before the French took possession of it. But she was pre-occupied with her vast colonial interests in South Amer- ica, Mexico, the West Indies, Florida, and her still greater Euro-
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pean interests and complications nearer home, and was unable to pay any attention to Louisiana.
That vast area in the heart of North America, known in his- tory as the province of Louisiana, extended north from the mouth of the Mississippi river, over twenty degrees of latitude, thence west to the Pacific ocean, and included the area now embraced in the States of Louisiana, Arkansas, Missouri, Illi- nois, Iowa, Minnesota, Nebraska, Kansas, Oregon, all that por- tion of Colorado east of the Rocky mountains and east of. the Arkansas river, and the territories of Dakota, Wyoming, Mon- tana, Idaho, Washington, and the Indian territory.
The territory of the United States was more than doubled by this accession. Before its acquisition we did not own a foot of territory west of the Mississippi river. Then the States of Mississippi, Tennessee, Kentucky and Indiana marked the limits of our western frontier. The gulf States did not extend to the gulf of Mexico by fifty miles. Then all that portion of territory now belonging to the gulf States, fronting on the gulf of Mexico, belonged to the Spanish province of West Florida, which we did not acquire until 1819. Jealous, showy and punctilious France, very soon after her Canadian subjects commenced crossing the lakes and descending the streams flowing into the gulf, assumed dominion and manifested it to the world by the appointment of governors or viceroys.
The first royal viceroy, the Marquis de Sanville, was com- missioned and invested with the emblem of sovereignty over the vast territories of Louisiana in 1689. He thus became the nominal ruler over less than two hundred and fifty itinerant hunters and trappers, one-half of whom he could not have found in twelve months with a search warrant. But it an- swered the emblems of sovereignty and marked an era in the history and civilization of the west. The seal on that com- mission, though but an empty emblem of authority over men, imparted immortality to the name it honored.
The viceroys from 1689 to 1718 were appointed by the crown; after that until 1732 they were appointed by Law and his successors.
In 1762, the uncertain vicissitudes of war, the final arbiter of nations, humiliated Louis XV of France, by tearing from
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his crown all of his vast possessions in North America, never to be united to it again until Bonaparte compelled Spain in 1801 to execute the secret treaty of St. Ildefonso.
By the treaty of Fontainebleau, entered into on the 3d of November, 1762, and confirmed ten days later in the palace of the Escurial, and in February following in the palaces of St. James and the Tuilleries, Canada, stretching from the gulf of St. Lawrence to the Arctic and Pacific oceans, was ceded to Great Britain and Louisiana, stretching from the gulf of Mexico, northward to the lakes and the British pos- sessions, thence westward to the Pacific ocean, was ceded to Spain.
This treaty of Fontainebleau carried with it in area the greatest empire ever conveyed by a stroke of either pen or sword.
The sovereignty of Arkansas has followed all these vibrations of the European political pendulum.
CHAPTER II.
THE ACQUISITION OF LOUISIANA BY THE UNITED STATES AND OBLIGATIONS OF THE LATTER TO THE INHABITANTS OF THE CEDED TERRITORY.
I TN 1800, citizen Bonaparte, first consul, at the head of the victorious legions of France, overrun Spain and forced his Catholic majesty, by the secret treaty of St. Ildefonso, concluded the 1st day of October, 1800, to cede Louisiana to France. Ratifications exchanged 24th March, 1801. The treaty was kept a profound secret at the instance of Bonaparte, because he was at war with England, which had superseded Spain as the mistress of the seas. He well knew that one order from Downing street or Trafalgar square to the British admiralty would sweep away all the interest of France in the new world. America's overshadowing greatness and power, strange as it may seem, is, to a great extent, due to the weak- ness of the greatest statesman and warrior of modern times.
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HISTORY OF ARKANSAS.
Or, it may be just as well expressed by saying it is due to England's mastery on the ocean at a critical period in European diplomacy. It was impossible for France to maintain colonial ascendancy in the west whilst at war with great maritime rivals. There was also another powerful motive to dispose of Louisiana,- Bonaparte wanted money to carry on his vast cam- paigns in Europe.
President Jefferson's great desire at the time was to secure, by treaty with Spain, the free navigation of the Mississippi river, with a depot of trade at its mouth, and our minister at Madrid was instructed to open and press the negotiation. This gave rise to the secret information imparted to President Jef- ferson in 1802, that France owned Louisiana. James Monroe, afterward president, was sent as special minister to Paris with instructions to join Mr. Livingston, our resident minister, and to treat with Bonaparte for the free navigation of the Missis- sippi river. The mission was far more successful than the most sanguine anticipations led them to hope for. Bonaparte readily entered into negotiations and himself proposed the en- tire cession of Louisiana, which resulted in the cession on the 30th of April, 1803, for $15,000,000, $11,250,000 of which was to be paid to France, and the remainder of $3,750,000 was to be paid to American citizens for spoliation of their com- merce on the high seas during the quasi war with France. To the shame of our government, the latter claims have never been paid, but have given rise to a Pandora's box of congres- sional legislation, investigation and inquiry. Thirty-six differ- ent congressional committees have had the matter in charge and it is still under consideration.
Bonaparte said to our ministers when the treaty was con- cluded : " This cession of territory strengthens forever the power of the United States, and I have just given to England a maritime rival that will sooner or later humble her pride." This treaty is the crowning glory of Jefferson's administra- tion ; and if he had done nothing else to endear his name to the American people, this one act would render it immortal.
The treaty reached Washington in July, 1803, and strange, at this day to say, its ratification in the senate was opposed by the old federal party leaders, so blind were they to the nation's interest. 2
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The population of Louisiana at the time of the cession has been variously estimated by different authors. Mr. Stephens, in his History of the United States, page 393, estimates it at ninety thousand, near one-half of which, he says, were negro slaves. This estimate is in the opinion of the author much too great, for the following reasons: Don Manuel De Lamos Gayoso, governor-general of Louisiana in 1798, directed the census of both upper and lower Louisiana to be taken. Complete returns were made on the 18th July, 1799, showing the total population of Louisiana at forty-nine thousand four hundred and seventy-five ; only about one-fourth of this population was negroes. The old Spanish records (to which Mr. Stephens, I presume, did not have access) show this. The population of the parish of Arkansas is set down in these returns at three hundred and sixty-eight.
Arkansas was under the dominion of the governors or vice- roys of France from 1689 to 1762 inclusive, and it was under the dominion of the governors-general of Spain from 1762 to 1803. During this period eleven viceroys ruled over Arkansas and nine governors-general, exclusive of the dominion of Law and his successors from 1718 to 1732.
A great number of incipient land titles were issued under the authority of these rulers, which has given rise to a vast volume of legislation and judicial determination in State and national courts.
The secret treaty of St. Ildefonso gave rise to some intricate and very interesting questions, and some able discussions in the supreme court of the United States, relating to land titles acquired from the Spanish authorities after Spain had ceded the territory to France.
The governor-general of Louisiana, being unadvised by his royal master of the cession to France, continued to dispose of the public domain in the name of Spain. All the titles issued in the interim between the 1st of October, 1800, and the 30th of November, 1803, were thus tainted. The early viceroys of France and the later governors-general of Spain, were clothed alike with little less than absolute authority, being so far removed from the parent government. The right of appeal which ex- isted under the Spanish authorities, in virtue of a royal edict
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from the Emperor Charles V, amounted to little more than a shadow. Judge White who translated and compiled " The Laws of the Indies," in this connection says (vol. 2, p. 303) : " Even the laws of the Indies, obscure, perplexed and even sometimes unintelligible as they are, hardly reached across the ocean, and the doctrine of the Spanish, like that of the Roman empire was marked by the absolutism of the distant prefects.
Intrusted with the command and defense of remote and ex- posed possessions -- often reduced to the greatest extremities - neglected by the feeble government of the mother country, they were yet expected to guard the colony and execute the most rigorous system of monopoly, amid greedy neighbors and an impoverished people. They were often obliged to create their own resources. Their "first duty was to preserve their Catholic majesty's province committed to their care." And again, the same able and learned author says (vol. 2, p. 503) : "Every nation has its own manner of securing the fidelity of its agents. Free governments are constructed upon the prin- ciple of intrusting as little power as possible, and providing against its abuse, by all species of checks and limitations. Arbitrary ones proceed on the principle of bestowing complete powers and extensive discretion, and guarding against their abuse by prompt and strict accountability and severe punish- ment. How absurd, then, would it be to apply the maxims of the one to the acts of the other.
As well might we judge the life of Pythagoras by the law of the New Testament, or the philosophy of Zoroaster by that of Newton, as to subject the administration of a Spanish governor to the test of magna charta, the bill of rights, the habeas corpus act, or the principles of American constitutional law.
The United States, in virtue of the law of nations and the seventh article of the treaty of Paris, was bound to respect and protect the inhabitants of the ceded territory in their landed property. That vast body of civil polity known as the com- mon law of England and her colonies was utterly unknown to the inhabitants of the ceded territory, where the civil law de- rived from the Romans prevailed.
The Roman or civil law, although " the grand original " of
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many precepts embodied in the common law of England, yet, as a distinct system, bears but little relation to that code so dear to Englishmen and their descendants.
Outside of the territory acquired it may safely be assumed that there was in 1803 neither lawyer nor jurist who was able to define the extent of the obligations assumed by the United States in relation to her new subjects. The government then found itself in the attitude of having assumed obligations with the details of which it was ignorant.
In March, 1804, congress authorized the president to ap- point three commissioners each in lower and upper Louisiana, whose duty it was to examine into the land titles of the in- habitants and report the result of their action to congress for confirmation or rejection of claims reported on. This act was the original of a large body of statutes passed by congress on the subject.
Judge White says: "The want of information has caused a delay in the adjustment of titles which could, under no other cir- cumstance, be excused. It is now thirty years since many titles in Louisiana, Arkansas and Missouri had been presented for con- firmation." To obviate these great difficulties as far as possi- ble, the Hon. Joseph M. White of Florida, at the suggestion of Wm. Wirt, attorney-general, was employed by the govern- ment to collect and translate the laws of Spain and France, the colonial ordinances of each, and the local ordinances of Great Britain. Ilis beautiful and accomplished wife lent her scholarly attainments to the accomplishment of this great task, but her husband forgot to record his obligations to his noble wife for the fame which she helped to win and wreathe around his name; now both are gone, let justice be done and the jeopardy of veritable tradition pass into authentic record. For want of an understanding of these laws congress confirmed spurious claims to $10,000,000 worth of land in Louisiana. These claims involved a large volume of litigation. In some instances their consideration was taken from the commissioners and transferred to the Federal courts. I find in an old copy of The Arkansas Banner published in Little Rock in January, 1845, the following notice :
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"The district court of the United States for the district of Arkansas, for the adjudication of unconfirmed French and Spanish land claims, has adjourned until the fourth Monday in March, 1845.
" W.M. FIELD, Clerk."
The first designation of Arkansas as a geographical unity, a political identity, is found in the old Spanish records denomi- nating it as one of the parishes of lower Louisiana.
CHAPTER III.
CUSTOMS AND HABITS OF THE OLD FRENCH AND SPANISH INHABITANTS OF LOUISIANA TERRITORY - SETTLEMENT.
HE old French inhabitants, by whom both lower and upper Louisiana were chiefly settled, selected the richest lands and most eligible sites, fronting the navigable streams, for settlement. Their system of settling and divid- ing up the royal domain was essentially different from that adopted by the English colonists.
France and Spain were very liberal with their colonists. They gave them without stint all the land they wanted, with- out price.
Self-interest and self-protection prompted them to settle in as compact form as possible; and to give all a frontage on the water-courses, their lands were laid off in narrow strips, and extended back at right angles from the river from one-half to three miles. That is the agricultural lands outside of the village or town commons.
French and Spanish land measure is computed by arpents ; an arpent is eighty-five one-hundredths of an English acre. The agricultural tracts of land were generally from one to three arpents wide.
When the husbandmen were cultivating these lands and har- vesting. their erops, they strapped each a carbine to his shoulder and worked back and forth abreast of each other, so as to be in supporting distance in case attacked by the Indians. This
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was never departed from, and the wisdom of the imperative rule is attested by the well-known fact that the French and Spanish colonists did not suffer half so much from Indian depredations as their brother English colonists, who often took their families and settled miles away from the block-houses and forts.
Another distinctive feature lies in the universal custom of these early settlers to lay off a large tract of land adjacent to their towns and villages, called the town commons, in which every inhabitant had an equal interest and right to herd their cattle and cut timber. These commons were granted by the crown in perpetuity.
This custom has been maintained by Spain in all of her colonial possessions in the new world. Her colonies have extended it to the Pueblo, or semi-civilized Indians, who have settled and lived in villages and towns.
When one of these primitive colonists wanted a piece of land segregated from the crown lands and given to him he addressed a short petition, in French times to the viceroy or commandant of the nearest military post, and under Spanish rule to the governor-general of Louisiana, setting forth what manner of man he was, for what purpose he wanted the land, and asking a title from the crown.
The local representative or deputy of the governor-general or viceroy examined tlie application, and if it appeared to be right he so indorsed on the back of the petition with direc- tions to the public surveyor to survey and segregate the land from the public domain and to put the applicant in possession.
This was the initiative step and when advanced thus far was called a "concession." But the title never became perfect until it was approved and granted by the crown, under Spanish rule, but the commandant of a post under French rule could make title when Law and his associates held the fee to Louis- iana.
There were many thousands of these equitable titles when we acquired Louisiana, and it was said by the supreme court of the United States that in all there were but ten perfect titles in 1803.
The treaty of St. Ildefonso for reasons already stated was
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kept a profound secret, and no change whatever was made in the officers or administration of the local affairs of Louisiana. To have done so would have defeated the secret object of the treaty by apprising England, the arch enemy of Bonaparte.
The statu quo was maintained until the 30th day of No- vember, 1803.
On that day by previous concert between France, Spain and the United States, the surrender was made simultaneously at St. Louis and New Orleans and other points to the envoys of France, who received the insignia of sovereignty from the Spanish authorities.
The Spanish flag, with great pomp and ceremonial, was lowered and the French flag ascended the flag-staff, which in turn, after having symbolized the dominion of France, was lowered and the flag of the United States was run up, emble- matic of the dominion we still maintain.
Some months after the United States took possession of Louisiana, the king of Spain issued a solemn protest against the cession on the ground that it was in violation of the seventh article of the treaty of St. Ildefonso by which France agreed not to cede it to any other power. But he was not able to keep his seat on his throne at home much less to disturb the title or destiny of the United States. But his protest added fuel to the already inflamed population.
The old French and Spanish inhabitants were wild with ex- citement when the Spanish flag gave place to that of the United States, and they threatened revolution. They greatly feared the loss of all their landed possessions, and in addition to this they had no patriotic love for the United States. Both congress and the executive took immediate steps to allay the fears and it was the part of wisdom to do so, because as a nation we were weak and much exhausted, and the excited population of Louisiana either by combination with Indians or foreign powers could have inflicted incalculable injury.
There was at this time in the United States a political refugee from Normandy, of great culture and force of character, who President Jefferson supposed would have more influence in allaying the fears of the French population than any other man he could appoint in upper Louisiana on the land commission to
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inquire into titles ; and, as a stroke of policy, justified by the times, he appointed J. B. C. Lucas, and with him another gentleman of French descent, James Penrose, and as the third, commended alike for wisdom and integrity, he appointed Edward Bates.
The work, reports and labors of this commission fill eight large volumes of " American State Papers," which have been characterized by the supreme court of the United States as "imparting absolute verity " in contests before that tribunal. .
The common-law system of conveyancing was unknown to these primitive inhabitants. With them no written contract or conveyance was necessary to impart title to land. They made valid oral dispositions with as much facility as an American could dispose of a cow or horse. A written conveyance of land was not then, nor is it yet required under Spanish law.
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