USA > Missouri > A history of Missouri from the earliest explorations and settlements until the admission of the state into the union, Volume II > Part 24
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
32 Also William Doss resided on the edge of the bottom, (1800), but after- wards removed to lower Louisiana; Solomon Thorn, the gunsmith on Apple creek also had a grant here; so Mathew and Jesse Scruggs and Terence Dyal or Dial (1799); Charles Bunch (1800), was employed as a messenger for the Post . of New Madrid in this year. Edward Robertson in 1797 lived here, sold out to Andrew Ramsay and moved to Big Prairie, where he was allowed to keep a tavern and house for the sale of spirituous liquors; Jeremiah Simpson, sold to Mathew Scruggs. Hugh White received a grant on the Illinois road - on the edge of the Grand Marais (Big Swamp) where the Rock Levee begins. White says, he came from Cave de Roque in the Indiana Territory. Micajah Harris (1802) settled on the edge of this bottom.
I9I
LAND GRANTS
cution and purchased by John Hays. About half way between Cape la Cruz creek and Randall creek Enos Randall, already mentioned, made his settlement in 1797. Moses Hurley also seems to have been a resident of this locality, because his name frequently appears as a witness. Immediately north of the post of Cape Girardeau adjacent to Lorimier's grant, Pierre Dumay secured a settlement right which he afterward transferred to Pierre Menard. This Dumay lived in New Madrid and was a native of Vincennes, and served there in the militia. Not far from the mouth of Flora creek Stephen Cavender settled.
At the mouth of what is known as Indian creek, then called Table River (Rivière Table), Cornelius Averit (t) or Everett established himself. A projecting rock resembling a table, on the south side of this creek, originally gave the name to this creek, and this rock was long pointed out by rivermen as the "Devil's Tea Table," but it has lately been blasted away by the railroad now running along the west bank of the river. Where Apple creek enters the river Pierre Menard of Kaskaskia secured a grant from the Spanish authorities, but no settlement was made there. Probably he had a trading house at this place or supposed it would be a favorable point to locate such an establishment, because the villages of the Shawnee and Delaware Indians were not far from the mouth of Apple creek, and likely for this reason managed to secure a concession. Above the big bend north of Cape Girardeau on the Mississippi, Joseph Chevalier in 1799 made claim under grant of De Lassus. This Chevalier was from Kaskaskia where he rendered military service in 1790. South of Chevalier, on the river, George Henderson set up a claim under Lori- mier, dated 1808.33
Shortly before the cession of Louisiana Lorimier promised to pay the troops which he was ordered by De Lassus to muster into service to punish the Indians near New Madrid, with grants of land, no other means being at his command to pay for this military service.34 Of
33 Other settlers on the Mississippi river in the Cape Girardeau district were: Lemuel Cheney (1797) from Virginia; John Tayon and John Johnson (1800); David Downard; Benjamin Rose (1797), who settled above William Ross. William Smith from Kentucky also made a settlement near William Ross, but assigned his right to Thomas W. Waters, one of the early merchants of Cape Girardeau in 1805. Edward Hogan had a farm opposite Thebes, Illinois, in 1797; the big railroad bridge now passes over his grant. Hogan acquired his right from Alexander Millikin who came from Tennessee in 1797.
34 We insert here the names of the members of this Spanish-American mili- tary company, arranged alphabetically, as follows: Alexander Andrew, Jr., David Asherbrauner; Harris Austin; Washington Abernethie; Cornelius
192
HISTORY OF MISSOURI
course no authority existed under the Spanish law to make such a grant, but nevertheless he made a grant of 300 arpens to each of the one hundred and sixty-four men who had served for six weeks in that campaign. These grants were all subsequently confirmed.
Averitt; James Arrell. Daniel Brant; Jonathan Buys; William Bollinger (John's); Henry Bollinger; Charles Bradley; John Burrows; Henry Bollinger (Daniel's); Davalt Bollinger (Daniel's); Philip Bollinger; Henry Bollinger (Philip's); Frederick Bollinger (Philip's); David Bollinger (Mathias'); Daniel Bollinger (John's); John Bollinger (John's); Stephen Byrd; Abraham Byrd, Jr .; John Byrd; Moses Byrd; William Bonner; Samuel Bradley; Thomas Bull; George Frederick Bollinger; Mathias Bollinger; Daniel Bollinger, Sr. James Cooper; Jeremiah Conway; Jeptha Cornelius; Peter Crytz; James Cox; Hugh Connelly, Jr .; George Cavender; Timothy Connelly; Hugh Criswell; Lemuel Cheney; James Cooper; Daniel Clingensmith. Ezekiel Dickson; Charles Demos, (died before the cession and his widow made claim for grant); Elijah Dougherty; John Dougherty; David Downard; James Dowty; William Dougherty; Peter Franks; Barton Franks; Jonathan Forman, Jr .; Jacob Foster, Jr .; George Grount; John Guething; Baptiste Godair; Robert Giboney; David Green; Michæl Guinn; Daniel Grount; John Giboney. Jonathan Hubbell, Sr .; George Hays; John Hoss; John Henthorn; Jonathan Hubbell (Itham); Ebenezer Hubbell; Daniel Hubbell (Mathew's); Jonathan Hubbell (Jonathan's); Lemuel Hargrove; William Hand; John Hand; John Hays; George Henderson; Daniel Helderbrand; Benjamin Helderbrand; Thomas Hening; Gilbert Hector; Christopher Hays; William Jackson; James James; Isaac Kelly; Simeon Kenyon; Benjiah Laugherty; Lewis Latham; John Latham; John Lorance; Valentine Lorr; Josiah Lee, Jr .; John Losila; Charles Lucas; James Mills; George Morgan; James Murphy; Rolland Meredith; Daniel Mullins; Joseph Magee; John May; Hipolite Marote; Allen McKensie; William Murphy; Joseph Niswanger; Joseph Niswanger, Sr .; Michæl O'Hagan; David Patterson; John Patterson; Samuel Pew; Alexander Parish; Andrew Patterson; Jacob Probst; Adenston Rodgers; James Ramsay, Jr .; Abraham Randall, Jr .; Enos Randall; Thomas Rodney; Zebulon Reed; James Russel; Nicholas Revelle; Andrew Ramsay, Jr .; Andrew Ramsay, Sr .; Anthony Randall; James Randall; Samuel Randall; Medad Randall; Enos Randall, Sr .; Martin Rodney; Andrew Summers; John Summers, Jr .; Frederick Slinker; John Saviour; John Sineson; Charles Sexton; Alexander Summers; Jacob Sharadin; John Sharadin; Dennis Sullivan; John Henry Smith; William Strother; Samuel Strother; William Smith; Adam Statler; Conrad Statler ; John Thompson; William Timantz; Solomon Thorn; Jeremiah Thomas; Joseph Thompson, Sr .; Joseph Thompson, Jr .; John Tucker; Elijah Whittaker; William James Williamson; George Welker; Levi Wolverton; Isaac Williams; John Weaver; Elijah Welsh; Jacob Welker; Thomas Wellborn; Joseph Worthington; Philip Young; Austin Young; Joseph Young; John Zellahon.
CHAPTER XVI.
Spanish Occupation of Louisiana-The "Illinois Country" Defined-Spanish Colonial Government-Public Offices Sold at Auction-Duties of Officers- Judicial Procedure-System of Jurisprudence-Notable Changes in Exist- ing System-Civil and Criminal Jurisdiction-Procedure in Appeals- Powers of Lieutenant-Governor-Names of Early Syndics - Some Early Causes-Copy of Cost-bill-Civil Controversies Arbitrated-Judicial Sales made on Sunday-Population of Early Settlements-French and Span- ish Relations with Indians Harmonious-The Turbulent Osages - Plan of Chouteau to Control Osages - Specifications for Fort Carondelet - Influence of Louis Lorimier over Delawares-Treatment of Indians by Spain and by English speaking people Compared.
During the French dominion, the territory now within Missouri, was under the jurisdiction of the Commandant of Fort de Chartres and the council associated with him. When the Spaniards assumed possession, O'Reilly, Governor and Captain-General of Louisiana in March 1770, established the office of Lieutenant-Governor of "San Luis, San Genoveva and the district of the Ylinneses,"1 and his action was approved by royal cedula dated August 17, 1772.2 In place of the French Superior Council of the colony, O'Reilly insti- tuted a Cabildo, composed of six perpetual Regidores, two ordinary Alcaldes, an Attorney-General, a Syndic, and a Clerk. This tribunal was presided over by the Governor in person. Nothing will appear more singular to the reader of the present time than the fact that the office of the Regidores could be acquired by purchase, and that when these offices were first established by O'Reilly they were sold at auction, and that the purchaser acquired a vendible interest in these offices, the right to sell and transfer the same to a known and capable person, one half of the appraised value to be paid cash and the balance at the rate of one-third on subsequent changes.3 These Regidores held, respectively, the offices of Royal Standard Bear- er (Alferez Real), of Provincial Alcalde, of High Sheriff (Alquazil
1 It should always be remembered that during the French and Spanish period, the country east of the Mississippi north of the Ohio, and west of the Mississippi, perhaps north of the Cinque Homme, or Apple creek, in what is now Missouri, was known as "Illinois" or the "Illinois country."
2 General Archives of the Indies, Audiencia of Santo Domingo, Louisiana, and Florida, 1613-1818.
3 Gayarre's History of Louisiana, Spanish Domination, p. 3. Martin's His- tory of Louisiana, p. 10.
193
194
HISTORY OF MISSOURI
Mayor), of Depository-General and of Receiver of Fines. They elected the ordinary Alcaldes and the Attorney General Syndic and clerk. The salary of these Regidores was only $50 a year.4 The ordinary Alcaldes were the judges in civil and military cases in New Orleans and summarily disposed of judicial matters without any writ- ing, where the amount did not exceed $25 in value; but in cases in- volving larger amounts they sat in Chamber, and their proceedings were recorded by a clerk and notary. An appeal could be taken from the judgment of these ordinary Alcaldes to the Cabildo. But the Ca- bildo did not itself examine the proceeding thus appealed; it selected two Regidores to do so, who, together with the Alcalde who had ren- dered the judgment, revised the proceedings, and if the Alcalde and the Regidores so selected approved the original finding, the judgment stood affirmed. The Cabildo sat every Friday, but the Governor could convene the body at any time. The principal Provincial Al- calde had cognizance of all matters out of New Orleans. The Alqua- zil Mayor (High Sheriff) executed throughout Louisiana all processes from the different tribunals, personally or by his deputy. The Attorney- General Syndic was not the prosecuting officer, but represented the people in the Cabildo, and it was supposed to be his duty to propose such measures as the interests of the people required. All officers who received more than three hundred pesos a year were appointed by the crown, but those receiving less than this sum were appointed by the Governor. The Governor exercised judicial powers in criminal and civil cases throughout the colony, but was subordinate to the Captain General of Cuba. An Intendant had charge of the Royal revenue, and attached to him as legal advisor was an Auditor. A Contador, or Comptroller, looked after the accounts. An auditor of war looked after the military revenues; and an assessor of the gov- ernment was the legal advisor of the Governor. In addition, various secretaries, a Surveyor General, Harbor Master, interpreters of the English, French and Indian languages, Notaries Public and other minor offices were attached to the central government at New Or- leans. At every post an officer of the militia or army was stationed as Civil and Military Commandant, being of no higher grade than Captain. The duties of these commandants were to maintain peace and order in their respective districts and places, to examine the passports of every traveler in the colony (for no one was allowed to travel with- out a passport), to allow no one to settle in his district without express
4 2 Martin's History of Louisiana, p. II.
195
" COUTUME DE PARIS"
license and permission, to punish slaves, to entertain jurisdiction in civil cases-in lower Louisiana in casesinvolving less than $20; but in upper Louisiana for larger amounts,-to make inventory of estates of deceased persons and to attend sales under execution of judgments. In upper Louisiana all post commandants were subject to and under the control of the Lieutenant-Governor, residing at St. Louis, with the exception of the Commandant of New Madrid, who, until 1799, when the post of New Madrid was attached to upper Louisiana, exercised the powers of a sub-delegate, having a jurisdiction and authority independent of the Lieutenant-Governor at St. Louis. Spanish was the official language,5 but the use of French was tolerated and finally in legal matters, says O'Reilly, an Abridge- ment of the Spanish Law "prepared by my assessor Don Manuel de Urrustia and by the advocate Don Felix del Rey who made them by special commission from me," was made a guide in civil and criminal cases, for all public functionaries and for the people. This compendium, however, was merely an index to the body of the Spanish law.
Thus the laws and customs "of the mayoralty and shreevalty of Paris" which were extended over "said country of Louisiana," by the seventh article of the Charter of Crozat, apparently, were super- seded. Originally the "coutume de Paris" seems to have been se- lected by the advisers of the King of France, when he granted this charter, as the system of law under which Louisiana should be placed, because it was the best digest of the French law and to which it was proposed to reduce the customary law of all the other provinces of France.º Nor were the rights of the people, conferred by the laws and customs of Paris, in any wise limited, changed or abridged by the transfers made afterward. The third article of the charter of the Compagnie des Indes Occidentales, expressly stipulates : "The judges established in all the said places shall be held to adjudge according to the laws and ordinances of the kingdom and the officers to follow and conform themselves to the customs of the Prevôte and Vicomte of Paris, according to which the inhabitants may con- tract, without that any other custom may be introduced to avoid diversity."7
5 Cruzat, Lieutenant-Governor of upper Louisiana, was expressly ordered to use the Spanish language, in 1778, in all official documents.
6 Enc. Meth. Jurisp .- Coutume, p. 405.
7 I Moreau de St. Marie, p. 100, cited in American State Papers, 3 Public Lands, p. 83.
196
HISTORY OF MISSOURI
Although the Spanish law was introduced, by proclamation of O'Reilly, practically only the names were changed of the officers administering the existing law. No change took place in the essential principles of jurisprudence.8 New Spanish officials, desig- nated by Spanish titles, were substituted for the French officials. The manner also of the proceedings in the trial of causes where such trials took place in lower Louisiana to a limited extent was changed, so as to be in accord with the digest of Urrustia and del Rey, until a general knowledge of the Spanish language and a more extensive information of the Spanish law could be secured. The great system of law relating to property and defining the rights of persons and things was left untouched, so that all remained in the enjoyment of these rights by this proclamation.
During the entire Spanish occupation, it is said that new rules and ordinances were promulgated only in regard to three subjects. In 1770, O'Reilly published a series of ordinances as to how and in what manner land would be granted, and subsequently similar ordinances were published by Carondelet, Gayoso de Lemos, and, finally, by Don Juan Ventura Morales in 1800. Another subject in regard to which new laws were published related to the police, and in addition a number of regulations were made in regard to bridges, levees, roads, slaves, coasting-vessels, travelers, arms, estrays, fishing and hunting. These acts, mainly applicable to lower Louisiana, embod- ied about all the changes made in the existing system during the Span- ish occupation of the country. Stoddard says that "An ordinance regulating dower and inheritance of intestate estates was the only law promulgated in upper Louisiana, independent of the rules and regulations in regard to the acquisitions of lands. " 9
The inhabitants of upper Louisiana who were of French descent, claimed as their inherent birth right, the rights and privileges of coutume de Paris, and by these usages and customs governed their own domestic affairs and relations as far as they knew. This they did without interference on the part of the Spanish authority, apparently in ignorance of the O'Reilly proclamation or because the Spanish law introduced by this proclamation in no wise conflicted with the coutume de Paris.
While the Spanish language was made the official language, French so thoroughly remained the language of the country and its
8 De Bow's Review for 1847, P. 33.
" Stoddard's Louisiana, p. 285.
197
JURISDICTION OF COMMANDANTS
· inhabitants, that judicial proceedings in upper Louisiana were carried on principally in that language during the Spanish occupation; but such cases as went by appeal to the Governor-General at New Or- leans, were, it seems, presented in the Spanish language, being either originally so instituted or translated on appeal. Petitions in judicial proceedings and petitions for grants and lands were indifferently writ- ten in Spanish or French in upper Louisiana.
No question directly arose during the Spanish occupancy of upper Louisiana as to whether or not the Spanish law had superseded the coutume de Paris. The settlements were isolated and unimportant. Such legal questions as arose involved facts rather than principles of law, and since the coutume de Paris and the Spanish law were de- rived from the same common source, it was hardly possible that any serious difficulty as to any legal question could arise. We may how- ever conjecture, that possibly if a question of law had directly arisen, bringing into conflict the laws and regulations as established by the coutume de Paris and the Spanish Colonial code, that the Spanish lawyers and officials would have declared that the Spanish law pre- vailed in the colony.
In 1787, Peyroux, then Commandant of Ste. Genevieve, was instructed that he had power to decide only matters "up to the sum of fifty pesos," and that in cases above that sum an appeal must be made to the Lieutenant-Governor as in all other matters concerning "inventories and finances because of the death of any of those inhab- itants," but he was authorised in such cases to take judicial action in the presence of two witnesses until the cause could be placed in a sit- uation for the Lieutenant-Governor to pronounce sentence. These instructions very probably define the extent of the civil jurisdiction of the several commandants of upper Louisiana, with the exception of New Madrid. Each commandant had the public archives of his post under his charge. It was his duty to report, as to the affairs of his post, to his superiors. It was the duty of the Lieutenant-Gov- ernor, or commandant-in-chief, says Trudeau, "to go to any of these villages when any criminal or summary process is to be pursued," thus taking cognizance of criminal cases in the several districts, al- though the local commandants also exercised jurisdiction in some criminal matters, subject, however, it is quite certain, to an appeal to the Lieutenant-Governor. In a criminal case which arose shortly before the cession, one, Moses Burnett was arrested in the New Madrid district for stealing two horses from Lorimier and
.
198
HISTORY OF MISSOURI
sent directly to St. Louis to be imprisoned and tried by the Lieu- tenant-Governor there.10
During the Spanish government, any one aggrieved by the ruling or decision of these military and civil officers of upper Louisiana, could not only appeal his case11 to the Governor General at New Orleans, but could take it thence to a judicial tribunal in Cuba, and from this tribunal to the Audiencia of San Domingo, and from thence even to the Council of the Indies in Spain.12 No code of procedure was ever devised more carefully safe-guarding the rights of the individual in theory than the Spanish colonial code. It was merely a matter of money to secure all these rights practically, but the same observation may be applied to every other system of jurisprudence. But "Judges, codes of law and prisons were of little use where such
10 This arrest was the cause of a good deal of litigation. Burnett after his arrest, escaped from the "calaboza" of St. Louis, and returned to the Tywappity bottom in the New Madrid district, where his family resided. His wife was a sister of Reazin Bowie, who had been syndic of this neighborhood. Burnett remained at home for some time and then with his wife and her slaves and other property started to move by land to lower Louisiana, but Lorimier hearing of his return and attempt to move away, followed him with his son, An- drew Ramsay, and others, and found Mrs. Burnett at the house of Mr. Payne on the St. François river. Burnett, however, was in the woods and could not be found. Lorimier then took possession of the slaves and twelve horses, all claimed by Mrs. Burnett. The province in the meantime having been trans- ferred to the United States, Captain Stoddard made an order for the sale of the property and then Mrs. Burnett presented her petition to the civil commandant of New Madrid, setting forth that all this property belonged to her, that Burnett, at the time of her marriage with him, only had one horse, that the horses and slaves were inherited by her from her father or secured by trades made with her property. Under the enlightened rules of the civil law and which prevailed at the time of her marriage in upper Louisiana, her property was not liable for the debts of her husband and could not be taken for the debts of the husband. When the matter was presented to Captain Stoddard he referred the case to the new courts to be organized, but says: "we doubt whether she can legally obtain the property mentioned in the petition, because it is personal property and therefore became the property of the husband on marriage," applying the common law rule, but which was never the rule under the civil law. New Madrid archives vol. 9, p. 314.
Burnett, after the cession in 1805, sued Lorimier, for damages, in the new court of Common Pleas and Quarter Sessions, in Cape Girardeau, but was himself indicted by the grand jury, at the same term, for burglary, and then dis- appeared. It is not known what became of him. Likely went to the Red river in Louisiana, where his brothers-in-law were engaged in bringing negro slaves into the country via Galveston bay, and which they bought from LaFitte. Was this Burnett related to David G. Burnett, first president of Texas, and who was empressario of a grant covering the country in which the Bowie's operated ?
11 Stoddard's Louisiana, p. 285. But appeal must be taken within five days.
12 Stoddard's Louisiana, p. 285. "But in case of appeal the party appealing was first obliged to pay the amount in dispute, if the matter related to a claim, to the opposite party, who was required to give bond that in case of reversal he would repay the sum. This regulation was intended to prevent litigious and vexatious appeals for the purpose of delay and partly to shield the poor from
199
A PARENTAL DESPOTISM
simplicity of manners prevailed and where every one knew how to confide in his neighbor. "13
The government was a parental despotism. To illustrate: the common field fence was not maintained in front of the lot owned by a Mrs. Verdon, of the village of St. Louis, as required by the rules and regulations. Consequently, without any litigation what- ever, simply by order of the Lieutenant-Governor, the lot was given to Mr. Chouteau, who took possession of it and kept up the fence. Such a method of disposing of the property of a recalcitrant lot owner hardly seems possible to us under a system of government, where all affairs are regulated by fixed law and administered by offi- cers belonging to different departments. But the Lieutenant-Governor united in himself at that time executive, judicial and military func- tions; he made concessions of the royal domain; he ordered and conducted judicial sales; he acted as notary and controlled the public affairs of the province without the interference of any one; the people regarded him as the representative of the sovereign. Hence when property could be secured for the asking, it was not an unusual thing, if a person to whom property had been granted neglected to do those things required by the established rules and regulations to protect the other lot owners, that his property was given to some one who would do those things.14
Cases arising in the several settlements and falling within the jurisdiction of the local commandants were quickly tried and adjusted by them or by the Syndics appointed and acting under them. The Syndics resided usually in the remoter settlements, and in the depend- encies of the several posts. This position was filled for a time in New Madrid by Pierre Antoine LaForge, by Pierre de Treget at Caronde- let, Joseph Decelle Duclos at Mine á Breton, Joseph Chartrand at Charette on the Missouri river, Richard Caulk at Bon Homme, Ed- mond Hodges, north of St. Louis in the neighborhood of Spanish Pond, James Sturgess on the Platin, Robert Owen at Marais des Liards, about three miles west of Florissant, and Reazin Bowie in Tywappity Bottom. These Syndics received no salary. To the the oppression of the rich, and had the desired effect. Appeals were not com- mon and those who made them could have no other object in view than the reversal of erroneous judgments." It is not hard to imagine how disastrous such a rule would now be to the legal profession and how it would lighten the labors of the appellate courts.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.