USA > Missouri > A history of Missouri from the earliest explorations and settlements until the admission of the state into the union, Volume II > Part 27
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34 Stoddard's Louisiana, p. 251.
35 Menard's Heirs vs. Massey, 8 Howard, p. 305.
36 American State Papers, 5 Public Lands, p. 705, where this whole subject is fully and learnedly discussed.
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RULES OF MORALES
this ordinance was extended to Louisiana in 1798, when the Intend- ant, Morales, promulgated his regulations.
The first civil and military Commandant of the United States in upper Louisiana, Stoddard, evidently an advocate of the claim- ants, (he seems to have acquired one of these concessions from Mackay) says that the regulations of Morales "were never enforced ; certain it is that they were not carried into effect. The reason for the first is, that the great clamor raised against them, in all parts of the province induced the Governor-General and Cabildo to draw up a strong protest against them, and to lay it before the King. The consequence was, that Morales was removed from office; though he was afterwards reinstated to assist in transferring the country to the French Republic. The reason for the second is, that the assessor died soon after they were promulgated, which totally deranged the tribunal of finances, and rendered it incapable of making or confirm- ing land titles." But Stoddard does not tell us who advised him "of the great clamor" raised against the regulations of Morales.37 Nor does he give us any authority for his statements which seem to rest on hearsay. On the contrary it is known, that in 1797 Gayoso dis- puted the power of the Royal Intendant, Morales, to interfere in mat- ters pertaining to grants of land, claiming the exclusive power to make such grants, as Governor-General, and that by Royal order dated October 22, 1798, it was expressly affirmed that the powers of the Intendant were plenary to divide and grant the land belonging to the King. After this order Morales published his rules and regulations,38 and the Governor-General of Louisiana ceased to be the Royal Intend- ant of the province, the office having been, as we have seen, merged into that of Governor-General, at the suggestion of O'Reilly in 1770.
Under the regulations of Morales, a very small number of titles in upper Louisiana (according to Williams, only thirteen grants) 39
37 Stoddard's Sketches of Louisiana were published eight years after the Louisiana Purchase, when the "clamor" against the Regulations of Morales had become very loud among the American land claimants, and their lawyers, who had acquired in many instances questionble and doubtful titles, issued in the last days of the Spanish government. He was not a resident of Louisiana prior to the purchase of the Territory. It is possible that in his mind he carried back the "clamor" that arose from 1804 to 1812, and which he heard, to 1799, when the Regulations were first promulgated. On the 25th of Sept., 1805, James Mackay conveyed the land to him and which became known as "Stod- dard's Mound." This land was surveyed by Soulard in 1806.
38 Menard's Heirs vs. Massey, 8 Howard, p. 305.
39 Williams' Paper on Land Titles in St. Louis, in Scharff's History of St. Louis, vol. I, p. 321.
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HISTORY OF MISSOURI
were completed, it is said, because the expenses of procuring a com- plete title at New Orleans were enormous, and the fees extortionate. Then too, in 1802, the Lieutenant-Governor of upper Louisiana was directed not to forward applications to complete titles until further ad- vised. Stoddard, explaining the method by which titles could be secured, says that it was "necessary for a concession to pass through four, and in some instances seven, offices before a complete title could be procured, in which the fees exacted, in consequence of the studied ambiguity of the 13th article, frequently amounted to more than the value of the land" conceded.40 But it may be observed that a patent for land from the United States passes through perhaps as many offices before it is issued. On the other hand, the Spanish government donated the land to the settlers, while the United States, until the passage of the Homestead law, received the value in cash. Perhaps the chief reason why the Spanish land titles of upper Louisiana were not perfected, may be found in the danger of the journey down the river to New Orleans and the expense of a trip through the wilderness. The regulations of Morales may also have been unpopular because the government reserved the privilege to tax the land, a principle then very unpopular in the Spanish possessions.
The imperfect titles based upon grants made by the various Lieu- tenant-Governors, exercising sub-delegate powers, were recognized as transferable; they could be and were sold for debts and were passed by devise. But the rules of the Intendant, Morales, were directly in conflict with this general practice. In the 18th article, it is said : " Experience proves that a great number who have asked for land think themselves the legal owners of it; those who have obtained the first decree by which the surveyor is ordered to measure it and put them in possession, others, after the survey has been made, neglect to ask the title for the property; and as like abuses continued for a longer time will augment the confusion, a disorder which will neces- sarily result, we declare that no one of those who have obtained the said decree, notwithstanding in virtue of them the survey has taken place, and that they have been put in possession, cannot be regarded as owners of the land until their real titles are delivered complete, with all the formalities before recited." And says the 20th article : "Those who without the title or possession mentioned in the preced- ing article are found occupying lands shall be driven therefrom as from property belonging to the crown." From which, it is very 40 Stoddard's Louisiana, p. 252.
22I
POWER TO MAKE GRANTS
evident, that at least this regulation of Morales was calculated to make definite and certain the title of all grantees.
DeLassus, last Spanish Governor of upper Louisiana, in his testi- mony before the Commissioners, said that the rules of Morales were never enforced in upper Louisiana, and, that as Lieutenant-Governor he had a right to suspend the execution of any order, if to him it ap- peared prejudicial to the interests of the King or people, until he re- ceived additional instructions. He said that he did not remember causing the regulations to be published, that he gave no orders to his subordinates in regard to these regulations, because he did not intend to obey them. But in an order dated St. Louis, February 26, 1801, he says : "All concessions and augmentations of property must be granted by the Intendant of these provinces on petition, which is to be presented by those persons claiming lands."41 And the United States Supreme court from this concludes that "the Intendant Gen- eral had the power to adjudge on the equity of the claim and to exercise the sovereign authority by making the grant as the King's deputy."
A side light is thrown upon the testimony of DeLassus, when it is remembered, that it was then supposed that titles to many con- cessions for large tracts of land made by Trudeau and DeLassus, depended upon establishing as a fact before the United States Com- mission, that the rules and regulations of Morales were not in force in upper Louisiana, and that as Lieutenant-Governor of upper Louisiana he had the power to suspend the rules and regulations of the Royal Intendant. Then too, the rule of the King of Spain was at an end, and it was easy to say that as Lieutenant-Governor he never intended to obey the orders of the Royal Intendant. Yet the transfer of the power of Intendant from the Governor to a sep- arate official, did not affect the powers of the sub-delegate in upper Louisiana, although DeLassus seems to have thought so.42 But a delegate could not transfer his power to another, and Morales so advised DeLassus in a letter dated August 26, 1799. Even a casual perusal of the preamble of the regulations of Morales must lead to the conviction that after 1798 no power to make absolute or complete grants of land vested in the Governor or Lieutenant-Governor of Louisiana. Morales thus sets forth his authority and purpose: "However, the King whom God preserved, having been pleased to de-
41 Chouteau vs. Eckhardt, 2 Howard, p. 349.
42 Chouteau's Heirs vs. United States, 9 Peters, p. 145.
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HISTORY OF MISSOURI
clare and order by his decree, given at Saint Lorenzo, the 22d day of October 1798, that the Intendancy of this province, to the exclusion of all other authority, be put in possession of the privilege to divide and grant all kinds of land belonging to the crown, which right, under his order of the 24th of August 1770, belonged to the civil and military government, wishing to perform this important charge not only ac- cording to the 8Ist article of the ordinance of the Intendants of New Spain, of the regulations of the year 1754, cited in said article and the laws respecting it, but also with regard to local circumstances and those which may, without injury to the interests of the King, contribute to the encouragement and to the greatest good of his subjects, did establish, or who may establish them- selves in this part of his possessions, after having examined, with the greatest attention, the regulations made by his Excel- lency, Count O'Reilly, the 18th of February, 1770, as well as that circulated by his Excellency the present Governor, Don Manuel Gayoso de Lemos, the Ist of January, 1798, and that the counsel which has been given me on this subject by Don Manuel Seranno, Assessor of the Intendancy, and other persons of skill in these matters, that all persons who wish to obtain lands may know in what manner they ought to ask for them; and on what condition lands can be granted or sold, and those who are in possession without necessary titles may know the steps they ought to take to an adjustment, that the Commandants, as sub-delegates of the Intendancy, may be informed of what they ought to observe, that the surveyor-general of this city, and the particular surveyors who are under him may be instructed of the formalities with which they ought to make surveys of land and lots which shall be conceded, sold or arranged for; that the secretary of finances may know the fees he is entitled to and the duties he is to discharge; and that none may be ignorant of any of the things which may tend to the greater advantage of an object so important in itself, as the security of property under the conditions to enlarge, change or revoke that which time and circumstances may discover to be most useful and proper to the attainments of the end to which the benevolent intention of his Majesty are directed, etc."
Nor can there be any doubt that the rules of Morales were pub- lished and well known to the principal persons in upper Louisiana. That these rules must have been published, is shown by the evidence to sustain the Butcher claim, from which it appears on June 15, 1802, Don Pierre DeLassus de Luziere, Commandant'of Nouvelle
223
LIBERAL LAND POLICY
Bourbon, approved a petition and recommended to Morales, a grant to these claimants of 1,600 arpens, 400 of which were located near Mine la Motte, and 1,200 on Big river.43 In 1802 Moses Austin also secured a complete title from the Intendant Morales, to a league square at Mine à Breton, and Antoine Reihle a grant near St. Louis. The fact that Barthélemi Cousins, secretary of the Commandant at Cape Girardeau, and also Deputy-surveyor, proposed to purchase land immediately after the publication of these rules, a sale of land for the first time being authorized by the rules or Morales, certainly establishes this publicity. So also the reply of Ramiro de Lopez Angula, dated Naples, April 2, 1800, to Don Henri Peyroux. This letter, interesting in more than one respect, is as follows: "It was never the intention of the King to dispose of the land in such large quantities (100,000 arpens), and under such circumstances as stated in your letter of the 9th of February last, No. 9, and the petition of the inhabitants accompanying it. It is true that in the new regulation there are provisions for the sale of lands in the manner referred to, but it is only under the previous formalities therein specified and with a reference to the ability and force of the persons desirous of purchasing, because it would not be just, that for a small consider- ation, one or more speculators could make themselves masters of a great extent of land to the prejudice of others coming to settle, and who consequently find themselves driven to purchase those lands which they might otherwise have obtained free of expense. For those reasons I cannot accede, at present, to the before-mentioned proposal, which you may make known to the parties concerned. God preserve you, etc."
The rules of Morales did not really increase the difficulties of securing land but they seem to have been prepared to protect the settler. The careless, loose way in which grants and sur- veys were made, no record whatever being kept of these transac- tions under the ordinances of O'Reilly and Gayoso, would have resulted ultimately in great injury to some of the settlers. The new rules required that the surveyor should send a copy of his survey to the office of the Intendant, accompanied by a figurative plat, a cer-
43 Bartholomew Butcher, Michael Butcher, Sebastian (Bastian) Butcher and Peter Bloom (Blum) were German stone-masons, and de Luziere told Mary Ann LaPlante, who came to Louisiana with the family of DeLuziere, that these men were such good stone-masons that it was a great object to have such good workmen and peaceable subjects retained in the country. The Butchers also did work in the Cape Girardeau district, building a house for Don Louis Lori- mier in 1802.
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HISTORY OF MISSOURI
tificate called procès verbal, signed by the commandant, or syndic, or two neighbors, and the surveyor declaring that the survey was made in their presence, and correct, and that it corresponded with the concession, gave certainty to the grant and safety to the grantee. The concession and survey thus attested was duly recorded, and the settler was furnished with this evidence of title for the land, but he was required to perfect his title within three years after settlement on the land.
The liberality of the Spanish government in donating land to actual settlers stands in striking contrast with the illiberal policy of the United States at that period. The pioneer settling in the Spanish Dominions in upper Louisiana was not expected to pay for land on which he established his home. The hardship, the danger, the iso- lation from all the comforts of civilization seem to have been fully appreciated by the Spanish government. It was thought unjust, that in addition to opening a path in the wilderness and with untold perils and self sacrifice laying the foundation of civilized order, the settlers should also pay the government for the land so settled, or should even pay taxes on the same. Yet it has always been fashion- able to criticise the colonial policy of the Spaniards. However just these criticisms may be when referring to trade regulations, so far as the laws and ordinances for the disposal of the Royal domain in upper Louisiana are concerned, they are in nowise justified.
The proceedure for securing a concession of land in upper Louisiana, was simple and direct under the ordinances of O'Reilly and Gayoso. The new settler, as soon as he arrived in the country, and possessing " the necessary qualifications to be admitted among the cultivators of these provinces," was expected to make applica- tion to the Spanish Post-Commandant for permission to settle, no one being allowed to settle without permission. In petitioning for a grant of land, he was expected to set forth his circumstances, and if the Commandant favorably considered this application, as seems always to have been the case, he endorsed the petition with his rec- ommendation and transmitted the same to the Lieutenant-Gover- nor at St. Louis. This was the plan at least prior to 1799, when the Regulations of Morales were promulgated. The Lieutenant- Governor granted the request as a matter of course, and ordered the surveyor of upper Louisiana to make the survey and put the peti- tioner in possession of the land. A trifling fee to be paid to the sur- veyor was all the expenses incident to securing a large tract of land.
225
SOULARD
The application of the petitioner to the Commandant for a grant of land was technically called a requête, and the recommendation of the Commandant of the post amounted to a verification of the facts as expressed in the requête by the petitioner, to which the commandant usually added that no objection to the granting of the land was known to exist, sometimes even in strong terms assigning various reasons which to him might seem to justify the concession. Land was held generally of so little value by the French and the Spaniards, that it was scarcely thought worth while to accept or to pay fees for writing the concession or requête.44 It was only in rare instances that such a con- DON ANTONIO SOULARD cession was denied, but in no instance was a settlement allowed on the crown lands without permission of the Post-Commandant.
Carondelet favored Americans and told DeLassus when he went to New Madrid in 1796, to invite inhabitants of the United States, not hunters, but those who had families and great means, to settle in his district, and to grant them as much land as they wanted. 45 No list of concessions was kept by the several Commandants or Lieut- tenant-Governors, as that was no one's duty. After the land was surveyed, and the petitioner placed in possession by reducing to cultivation one tenth of the grant within three years, the title of the grantee was considered substantially perfected and regarded by the people and authorities as his property, although it was evidently not a complete title under the law.
The first surveyor for upper Louisiana, Don Antonio Soulard, was appointed in 1795, and from time to time he appointed a number of deputies, or "Lieutenant-surveyors," in the several districts. He first opened a regular office for the registration of land surveys made by him and his deputies. Soulard's lieutenant-surveyors in the several districts were, Thomas Maddin, Ste. Genevieve; Bar- thélemi Cousin, Cape Girardeau; Joseph Story, New Madrid; James Rankin, and James Richardson, St. Louis, and James Mac- kay, St. Andre. Officially, Carondelet, Trudeau and DeLassus designated Soulard simply as "the Surveyor." It is not quite clear
44 American State Papers, 5 Public Lands, p. 59.
45 American State Papers, 5 Public Lands, p. 709.
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HISTORY OF MISSOURI
when all the country north of the mouth of the St. Francois was first designated as "Upper Louisiana," or when the order was made so naming this portion of the province, if any order was made at all. But after his appointment in 1795, Soulard and his lieutenant surveyors made all the surveys in this portion of the province.
In addition to the small and limited grants made to actual settlers, larger questionable grants were made by the Lieutenant-Governors of upper Louisiana to reward alleged services, or to favorites, shortly before the transfer of Louisiana. The grantees of these large con- cessions were all officers and connected in some way with the govern- ment. It is evident that when these land grants were made so liberally, the Spanish officials knew that a change of government would take place. No doubt it was also thought that a change in government would add greatly to the value of the land. The great rise in the value of land east of the river after the American occupa- tion was well understood. A number of Frenchmen who had resided in the United States prior to settling in Louisiana, must have fully explained to the Spanish officials the value in which land was held in the United States, and the great number of Americans already settled in upper Louisiana, all anxious to secure land, no doubt also impressed these officials with the importance of securing concessions for themselves and for their friends, before a change of government. The liberal and extravagant land grants made by Trudeau and DeLassus shortly before the cession of Louisiana may be sought in such reasons and motives. Many, if not all, of these grants and con- cessions were suspected of being ante-dated and tainted with fraud, and for years were the subject of litigation and controversy.
A few examples out of many will show upon what slight and flimsy grounds large bodies of land were granted to applicants, if belonging to the favored class. James Mackay received a concession of 30,000 arpens from DeLassus in 1799 to reward him for services in the years 1795-6, for a voyage made under a commission of Carondelet "to the upper and unknown parts of the Missouri." St. Vrain, a brother of DeLassus, was granted 10,000 arpens on a petition in which he says that he desired "to secure to himself a competency which may in the future afford him an honorable existence," and in 1799 secured an additional grant upon which to "collect his family and keep it near him." Richard Caulk, one of the early American settlers west of the Mississippi, was awarded 4,000 arpens "in con- sideration of all his gratuitous services, that were often painful and
227
MINERAL CLAIMS
onerous" to him, as commandant of the settlement of St. Andre, in the absence of the commandant Don Santiago Mackay. François Saucier, a descendant of one of the earliest pioneers of the Mississippi valley, and founder of Portage des Sioux, received a grant of 600 arpens for each of his children - thirteen in number - and 1,000 arpens for himself and wife, to reward him for his "laborious task" as Commandant of Portage des Sioux, a position he filled, he says, "without remuneration." DeLassus himself while Com- mandant at New Madrid, received from Lieutenant Governor Tru- deau a grant of 20,000 arpens on the Cuivre and Salt rivers, twelve miles west of the Mississippi. Mrs. Vallé Villars in a petition to DeLassus says that she has discovered that the lands near Ste. Genevieve have nearly all been divided, and prays that she may be granted a league square on the Saline, basing the claim both on the services of her late husband and her father, being, she says, in her petition, "overburdened with a numerous family." Francesco Vallé, Commandant of Ste Genevieve, also received a league square situ- ated nine miles southeast of New Bourbon. Jean B. Pratte, Sr., got 1,000 arpens by stating that he proposed to devote himself to agriculture as the "only safe" resource "upon which one may found hopes for the future," and two weeks afterwards, still full of enthusiasm as to the profits of agriculture, he secures a whole league square because "convinced that the resources of agriculture are the most infallible means to secure to his family an independent exist- ence, and to shelter them thereafter from the disasters of pover- ty." Gabriel Cerré, in 1800, on the plea that he desired to make a plantation on an island in the Mississippi, secured the island. He also states, that "after a while," he intends "to occupy himself in felling building timber and wood for fuel, both of which will soon be very much wanted in this town." Dr. Saugrain although devoted to science, seems to have had business forethought as well as an idea of the value of lands, and secured from DeLassus 20,000 arpens at different places in upper Louisiana, "having in view the estab- lishment of mills of various kinds, of a distillery, stock farm, etc." Of course the Chouteaus were diligent in securing concessions of land when land was so liberally and lavishly distributed. Pierre Chouteau secured 30,000 arpens in order to secure a great quantity of timber "necessary for the fabrication of salt," and also "to maintain a considerable stock farm." Louis Lorimier in 1799, was granted 30,000 arpens to repay him for "the cares and troubles"
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HISTORY OF MISSOURI
which he "experienced in fulfilling the various missions with which he was charged, and the frequent voyages he was obliged to make to the injury of his private interest during his absence, and even at the peril of his health and life." His secretary, Barthelemi Cousin, received 10,000 arpens for services, for which he says he never "received any indemnification," and on the 22nd of March, 1803, about the time of the cession of Louisiana, 8,000 arpens additional were granted him "as a reward and in the way of salary."
According to John Rice Jones, during the Spanish government, every subject felt at liberty to dig for lead and smelt it when and where he pleased.46 No doubt all the subjects of the King of Spain in the then far away and out-of-the-way lead district in Missouri, did this, but not because it was legal. It is, however, true that the discoverers of mines were favored under the Spanish law, and it was the invari- able rule to grant to such discoverers the mine discovered, including four arpens of land adjacent thereto, leaving the neighboring land for others to dig on.47 When the United States acquired the Louisiana Territory, it is said by Jones, that there were only four complete titles to land in the lead or mineral district. Nevertheless, many claims were set up to mineral grants made prior to the purchase of the province by the Lieutenant-Governor and Commandants of the various posts. Thus Martin Duralde, specifying no location what- ever, secured a concession for what may be called a blanket mineral claim; and James Richardson, who was a Spanish deputy-surveyor, claimed under Gabriel Cerré, 400 arpens mineral land on the Mara- mec. The supposed Renault heirs made a claim which was recog- nized by Spain on account of an ancient grant made by the Company of the West. Indeed every grant made by France, prior to the treaty of Fontainebleau, in 1762, was recognized by the Spanish authorities. Thirty-one persons set up a claim to "Old Mines," presumably including one of the mines worked by Renault. Dr. Walter Fenwick claimed four arpens under Francis Azor, dit Breton, at Mine à Breton. Moses Austin, under a concession of the Intendant Don Juan Bonaventura Morales, definitely located 7053 arpens and thirty-three and one-half feet, at and near the village of Mine à Breton. St. James Beauvais and Francis Vallé, in order to be perfectly safe, made a general claim of sixty feet around every hill where they might
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