Claims to Land and the First Board of Commissioners

This article has been modified. See Chapter 3 of "It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri". (Go to book now.)

Legislation for ascertaining and adjusting the titles and claims to land in what was formerly Upper Louisiana had been passed March 2, 1805 (U. S. Statutes at Large, Vol. 2, pg 324). In accordance with that act a board of commissioners had been appointed, consisting of James L. Donaldson as recorder of land titles and John B. C. Lucas and Clement B. Penrose as commissioners. Donaldson had arrived in St. Louis in September 1805 to commence his duties and by December 1805 Lucas and Penrose had joined him to begin the task of examining claims to land that had been conceded by the former French and Spanish governments.

On December 23, 1805 the Board of Commissioners notified the Secretary of the Treasury that they had begun the process of procuring a meeting place and the supplies that they would need to conduct business. They selected Charles Gratiot to serve as clerk for the Board and Marie Phillipe Leduc to serve as translator (Territorial Papers, Vol. 13, pg 318).

The Board of Commissioners set about the task with no more instructions than what was covered by the previously passed acts of Congress. By January 1806 they and William C. Carr, the agent for the United States, were confronted with issues that had to be resolved before they could successfully evaluate the claims before them. First of all, the first section of the Act of March 2, 1805, chapter 26, specified that the Indian title must have been extinguished in order for a claim to be confirmed. The Board had no documentary evidence to address this requirement and were at a loss as to how to deal with it. Next, the second section of the same act required “the permission of the proper Spanish officer” for those making a claim under actual settlement. Permission to settle had often been given verbally without any written evidence, so many claimants were unable to prove permission, though they had long occupied the land. Next, the Board became perplexed over the distinction between the Spanish requirement of establishment or improvement and the Act of Congress requiring inhabitation and cultivation by a certain date. And more substantially, the Board had some difficulty in determining the intended meaning of the phrase, “one mile square, together with such other and further quantity, as heretofore has been allowed for the wife and family of such actual settler, agreeably to the laws, usages and customs of the Spanish government.” (Territorial Papers, Vol. 13, pg 393-394, 493-501; ASP:PL, Vol. 2, pg 560-561).

Following a correspondence from William Carr, and subsequent consultations with the President of the United States, the Attorney General and others, Albert Gallatin, the Secretary of the Treasury, sent further instructions to the Board of Commissioners in a letter dated March 26, 1806, addressing the interpretation of the second section of the Act of March 2, 1805, chapter 26, and whether permission to settle must be proven or merely presumed. The second section of the act was to be construed to grant the quantity specified by the Spanish regulations according to the size of the family with a maximum of one mile square. In regard to permission to settle, Mr. Gallatin advised the Board that if Congress had not provided for a particular circumstance, then the Board was to reject the claim and make note of its merits in the report that they were to provide upon completion of their work. Mr. Gallatin further admonished the Board to strictly adhere to the letter of the law and leave it to Congress to fix any problems with the legislation (Territorial Papers, Vol. 13, pg 462; ASP:PL, Vol. 2, pg 561).

Congress responded to the deficiencies found in its previous legislation by passing the Act of April 21, 1806, chapter 39, An Act supplementary to an act intituled “An act for ascertaining and adjusting the titles and claims to land, within the territory of Orleans, and the district of Louisiana” (U. S. Statutes at Large, Vol. 2, pg 391).

The first section of the Act addressed the situation where evidence was not available to prove that the “permission of the proper Spanish officer” had been obtained, as required by the second section of the Act of March 2, 1805, chapter 26. Permission was to be presumed, if an actual settlement had been commenced prior to October 1, 1800 and the land had been continuously inhabited and cultivated for three years prior to December 20, 1803.

The second section of the Act addressed the situation in which a claim could be made under the first section of the previous Act, but the claimant was under the age of 21. This may be the case when a tract of land was conceded for the benefit or support of a minor. In addition to the requirements of the previous Act, the tract had to have been inhabited and cultivated for ten consecutive years prior to December 20, 1803.

The seventh section of the Act authorized the Board of Commissioners to travel to locations more convenient to the claimants in order to receive oral evidence in support of or in opposition to claims.

The eighth section of the Act directed the Board of Commissioners in their proceedings and decisions to conform to the instructions that the Secretary of the Treasury may submit to them. The Secretary of the Treasury was also to prescribe the forms for the reports and transcripts the Board was to prepare.

In a letter, dated May 7, 1806, Mr. Gallatin notified the Board of Commissioners of the recently passed Act and provided them a copy. He stated that the required forms would be sent in due time. As far as instructions, he reiterated his instructions from March 26, 1806 and emphasized that they were to adhere to the letter of the law. They were not to confirm any claim that was not provided for by existing legislation (Territorial Papers, Vol. 13, pg 507; ASP:PL Vol. 3, pg 356).

By August 1806 Mr. Gallatin had decided that maybe he should prepare a formal set of instructions for the proceedings and decisions of the Board of Commissioners and sought the advice and approval of the President of the United States (Territorial Papers, Vol. 13, pg 567). The final form of the instructions was sent to the Board of Commissioners with a letter, dated September 8, 1806 (ASP:PL, Vol. 3, pg 356).

By the time the Board of Commissioners received the instructions sent by Mr. Gallatin, they had supposed they were nearly finished with their work. In a letter to Mr. Gallatin, dated October 22, 1806, Commissioners Lucas and Penrose informed him that at such a late stage in the process these new instructions would require a considerable revision of the claims upon which decisions had already been made. They proposed to finish examining the remaining claims according to the new instructions and to then prepare appropriate transcripts and reports for his consideration as to how to proceed from there (Territorial Papers, Vol. 14, pg 19).

James Donaldson, the Recorder of Land Titles, had in October 1806 taken his family and gone back to Baltimore, Maryland (Territorial Papers, Vol. 14, pg 21, 27, 64). Judge John B. C. Lucas and Clement Penrose remained as commissioners with Penrose claiming to have been deputized by Donaldson as Recorder before he departed. This being the situation, Judge Lucas informed the Secretary of the Treasury in a letter, dated November 4, 1806, that he would not continue until either a replacement for Mr. Donaldson was appointed or further instructions from the Secretary were received (Territorial Papers, Vol. 14, pg 27, 40).

The proceedings of the Board of Commissioners had not been without its drama. James Donaldson and Clement Penrose, having similar sympathies and opinions, formed a majority of the Board and proceeded to advance their decisions without regard to the dissent of Judge Lucas. Donaldson and Penrose were more liberal in their judgements and more sympathetic to the claimants, whereas Judge Lucas was more strict in his interpretation of the law. This element of contention led Donaldson and Penrose to make every effort to exclude Judge Lucas from the proceedings of the Board. Around August 1806 both Donaldson and Penrose moved their residence to the Army encampment, which was about 14-15 miles away from the established meeting place of the Board in St. Louis. As a result, their attendance was irregular and often at odd hours when neither Judge Lucas nor William Carr, the agent for the United States, was present. Since they formed a majority of the Board, they conducted business wherever and whenever they chose. They even concocted a scheme to go to the southern settlements to conduct business and after they were informed that Judge Lucas had departed for the location, they rescinded the decision and continued in St. Louis without him (Territorial Papers, Vol. 14, pg 58).

Apparently, Donaldson had been planning his departure for some time. In a letter to his father-in-law in Baltimore, dated July 6, 1806, he expressed his desire to finish the business of the Board as soon as possible. He intended to depart in October and was making every effort to complete the work so that his departure would not be delayed (Territorial Papers, Vol. 13, pg 537). Judge Lucas reported to the Secretary of the Treasury in a letter, dated January 4, 1807, that Donaldson had left St. Louis on his way to New Orleans on October 8, 1806 before the last instructions had been received from the Secretary (Territorial Papers, Vol. 14, pg 64).

So with the Recorder of Land Titles gone and the two remaining commissioners at odds and unable to agree on anything, the progress of the Board was at a standstill (Territorial Papers, Vol. 14, pg 36). Judge Lucas continued to report to the Secretary of the Treasury (Territorial Papers, Vol. 14, pg 27, 40, 52, 58, 81) and Penrose took it upon himself to prepare an opinion of the “majority” of the Board (meaning himself and Donaldson) on a classification of the claims along with a report from the Recorder’s books and his own opinions as to provisions to be addressed by future legislation (Territorial Papers, Vol. 14, pg 47).

Secretary Albert Gallatin finally responded in a letter, dated February 13, 1807, stating that new legislation was pending in Congress that would make yet more changes. He requested that they discontinue rendering decisions, but advised them that they may continue to receive evidence until they received further instructions (Territorial Papers, Vol. 14, pg 97).

SOURCES

American State Papers: Public Lands (ASP:PL)

The Territorial Papers of the United States, compiled by Clarence Edwin Carter, 1948

U. S. Statutes as Large

----------------------------------------
original composition by Steven E. Weible

Upper Louisiana in Transition

This article has been modified. See Chapter 2 of "It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri". (Go to book now.)

“The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.” (Article III of the Treaty Between the United States of America and the French Republic, dated April 30, 1803, U.S. Statutes at Large, Vol. 8, pg 200.)

Spain had agreed with France on October 1, 1800 to transfer the Province of Louisiana back to the French Republic and had formalized the arrangement by treaty on March 21, 1801. France attempted at that time to send an army to take possession of the province, but an English blockade kept its ships in port and unable to depart. France was, therefore, unable to take actual possession of the province until November 30, 1803, seven months after selling it to the United States (Stoddard, pg 102; Houck, Vol. 2, pg 356).

The French representative at New Orleans transferred possession of Lower Louisiana to representatives of the United States, William C. C. Claiborne, Governor of the Mississippi Territory, and General James Wilkinson, on December 20, 1803 (Annals of Congress, 8th Congress, Appendix, pg 1229). To save himself the time and expense of travel to St. Louis for the transfer of Upper Louisiana from Spain to the French Republic and from the French Republic to the United States, the French representative commissioned Captain Amos Stoddard of the U.S. Army Corps of Artillerists to serve as agent for the French Republic.  Captain Stoddard received possession of Upper Louisiana on behalf of the French Republic on March 9, 1804.  He then transferred possession from the French Republic to the United States on March 10, 1804 (Stoddard, pg 102-103; Houck, Vol. 2, pg 356-362).

In order to provide a temporary form of government in accordance with the act of October 31, 1803, chapter 1, An Act to enable the President of the United States to take possession of the territories ceded by France to the United States, by the treaty concluded at Paris, on the thirtieth of April last; and for the temporary government thereof (U.S. Statutes at Large, Vol. 2, pg 245), Captain Stoddard was directed by the Secretary of War to exercise the functions of civil commandant for Upper Louisiana (Stoddard, pg 103; Territorial Papers, Vol. 13, pg 8). Congress followed up by passing the act of March 26, 1804, chapter 38, An Act erecting Louisiana into two territories, and providing for the temporary government thereof (U.S. Statutes at Large, Vol. 2, pg 283) to take effect on October 1, 1804. This act separated the former Spanish Province of Louisiana into a territory and a district divided by the thirty-third degree of north latitude. The area south of the dividing line was designated the territory of Orleans and was set up with a territorial government. The area to the north of the dividing line was designated the district of Louisiana and was placed under the administration of the Indiana Territory.

In a proclamation, dated October 1, 1804, William Henry Harrison, Governor of the Indiana Territory, announced the division of the district of Louisiana into five districts for administrative purposes. Those districts were designated the district of St. Charles with its seat of justice at the village of St. Charles, the district of St. Louis with its seat of justice at the town of St. Louis, the district of Sainte Genevieve with its seat of justice at the town of Sainte Genevieve, the district of Cape Girardeau with its seat of justice to be determined and the district of New Madrid with its seat of justice at the town of New Madrid (Territorial Papers, Vol. 13, pg 51).

The district of Louisiana was upgraded to the Territory of Louisiana and a territorial government was authorized by the act of March 3, 1805, chapter 31, An Act further providing for the government of the district of Louisiana (U.S. Statutes at Large, Vol. 2, pg 331). General James Wilkinson of Maryland was appointed Governor of the Territory of Louisiana on March 11, 1805 and commenced his duties on July 4, 1805 (Territorial Papers, Vol. 13, pg 98).

When the inhabitants of the Province of Louisiana had first become aware that there would be a change in the government, they began to anticipate a rise in the value of real property. Those who were eligible for grants of land had hastened to petition for them. Those who held a general concession and had not yet selected a location had made an earnest effort to make a selection. Those in need of boundary surveys had tried to procure them. And those who saw opportunities for gain had tried to develop speculative schemes. This high volume of activity leading up to the actual transfer of possession caused the United States government to become very suspicious of attempts to fraudulently acquire lands (Stoddard, pg 253-254).

The primary suspicion of fraud was the dating of concessions and surveys prior to their actual date, referred to as “ante-dating.” Since the recognized date for the transfer of the Province of Louisiana from Spain to France was October 1, 1800, the United States did not want to recognize any grant or concession from Spain that had originated after that date. Section 14 of the act of March 26, 1804, therefore, declared any such grant or concession null and void.  It was desirable, however, to protect the bona fide rights of actual settlers, if the settlement had been made prior to December 20, 1803, the date on which the United States took possession of Lower Louisiana.  A bona fide grant of land was limited to “one mile square of land, together with such other and further quantity as heretofore hath been allowed for the wife and family of such actual settler, agreeably to the laws, usages and customs of the Spanish government.” This section also made it unlawful for any person to attempt a new settlement on or to make a boundary survey of the lands of the United States within the limits of the former Province of Louisiana.

The confirmation of land claims was a matter of great concern and anticipation for the inhabitants of Upper Louisiana, but, unfortunately, the process would not be quick and it would not be simple. Congress eventually took the first steps in that direction by passing the act of March 2, 1805, chapter 26, An act for ascertaining and adjusting the titles and claims to land, within the territory of Orleans, and the district of Louisiana (U. S. Statutes at Large, Vol. 2, pg 324).

Section 1:  Claims to land were to be confirmed for persons actually inhabiting and cultivating the land before October 1, 1800, if they had obtained a “duly registered warrant, or order of survey for lands” from the French or Spanish government as appropriate. In other words, the appropriate authority had conceded a tract of land to the claimant and had directed a survey to be made. The claimant must be the head of a family or over the age of 21 and must have fulfilled the terms and conditions of the grant.

Section 2:  A tract of land not exceeding “one mile square, together with such other and further quantity, as heretofore has been allowed for the wife and family of such actual settler, agreeably to the laws, usages and customs of the Spanish government” was to be granted to every person who was either the head of a household or over the age of 21 and who had made an actual settlement before December 20, 1803 with the permission of the proper Spanish officer. Also included were Spanish or French grants that had been completed before October 1, 1800 and on which there had been actual inhabitation and cultivation prior to December 20, 1803. This section did not apply to those who claimed any other tract of land by virtue of a French or Spanish grant.

Sections 3 and 4:  A recorder of land titles for the district of Louisiana was to be appointed by the President of the United States and was to begin his duties by September 1, 1805. Every person claiming lands by virtue of a French or Spanish grant was to file a notice in writing and a plat of survey with the recorder of land titles before March 1, 1806 along with all available written evidence of his claim.

This plat of survey of 606 Arpents made for Andrew Baker is an example
of what would have been filed by a claimant with the Recorder of
Land Titles along with other written evidence of a claim.
Note that the text is in French, even though the
concession was made by the Spanish Government.
The tract was conceded on September 1, 1799,
the survey was performed on November 24, 1799
and the certificate was made out on December 5, 1799.
The tract adjoins Big River and is located 25 miles west of Sainte Genevieve
(between present day Bonne Terre and Desloge in St. Francois County).
(Courtesy of the Missouri State Archives, Missouri Digital Heritage)

This plat of survey of 600 Arpents made for Stephen Byrd is another
example of what would have been filed by a claimant with the Recorder
of Land Titles along with other written evidence of a claim.
Note that the text is in French, even though the
concession was made by the Spanish Government.
The tract was conceded on January 5, 1798,
the survey was performed December 2, 1799
and the certificate was made out on January 5, 1800.
The tract is located 12 miles northwest of Cape Girardeau.
(Courtesy of the Missouri State Land Survey)

Section 5:  The President was to appoint two people to serve as commissioners along with the recorder of land titles for the district of Louisiana to examine those claims to land that would be filed with the recorder of land titles. This Board of Commissioners was to commence its work on or before December 1, 1805 and was to have the power to conduct a hearing on each claim and render a decision in a summary manner, according to justice and equity. The commissioners were not authorized to recognize or decide upon any grant or incomplete title, bearing a date subsequent to October 1, 1800. They were not to adjourn before March 1, 1806, the deadline for filing claims and written evidence, and they were to continue until the work was completed. Upon completion of the work, they were to submit transcripts of the claims that were approved and a report of those claims that were rejected. The transcripts and reports were ultimately to be presented to Congress for review and confirmation.

Section 6:  In addition, the Secretary of the Treasury was authorized to employ an agent for the purpose of appearing before the Board of Commissioners on behalf of the United States. The agent was to investigate the claims to land and oppose all claims that appeared fraudulent or unfounded. He was also to investigate claims to lead mines and present the evidence to the Board of Commissioners, who were to prepare a report to be submitted to the Secretary of the Treasury and ultimately to Congress. The Board of Commissioners was also authorized to employ a translator of the Spanish and French languages to assist them.

James Lowry Donaldson, a young lawyer from Maryland, was appointed recorder of land titles in May 1805. He was to commence his duties at St. Louis on September 1, 1805, but his arrival was delayed until mid-September due to travel difficulties and illness on the way (Territorial Papers, Vol. 13, pg 111, 124, 218).

John Baptiste Charles Lucas, originally from France (Marshall, Vol. 1, pg 97), but at that time living in Pennsylvania, was appointed a Judge of the Territory of Louisiana on March 12, 1805 (Territorial Papers, Vol. 13, pg 100). He was reluctant, however, to accept the appointment, because he considered the salary inadequate and the expense of moving to the Territory considerable. He, therefore, delayed in accepting the appointment of Judge with the hope that he might also be appointed as one of the commissioners for ascertaining and adjusting the titles and claims to land. Subsequently, he was appointed a commissioner on May 1, 1805 and he accepted both appointments (Territorial Papers, Vol. 13, pg 122, 123, 130). He arrived in St. Louis in mid-August 1805 (Territorial Papers, Vol. 13, pg 189).

Clement Biddle Penrose of Pennsylvania (Marshall, Vol. 1, pg 97), nephew to Governor James Wilkinson, was appointed to the remaining position of commissioner for ascertaining and adjusting the titles and claims to land in the Territory of Louisiana on May 1, 1805 (Territorial Papers, Vol. 13, pg 122).

William C. Carr, a young lawyer who had moved to Sainte Genevieve a few years before, was appointed by the Secretary of the Treasury to represent the United States as agent before the board of commissioners (Territorial Papers, Vol. 13, pg 161, 186). 

Since William C. Carr was resident in the territory at the time of his appointment, he had a good feel for the sentiment of the inhabitants at that time. His comments to the U.S. Attorney General, John Breckinridge, in a letter, dated October 14, 1805, foreshadowed the challenges that lay ahead for the Board of Commissioners. Carr noted that the act passed for ascertaining and adjusting the titles and claims to land was regarded by the French inhabitants as extremely rigorous, if not incompatible with the Treaty between the United States and France. The act limited the classes of claims that could be confirmed and left many classes of claims unaddressed. He also noted that St. Louis as the meeting place for the Board of Commissioners was not a central location and that it presented a hardship for the claimants in the southern settlements, such as New Madrid. The distance and the expense would make it difficult for claimants to comply with the requirements of the act (Territorial Papers, Vol. 13, pg 237).

At last all appeared to be in place to begin the process of examining claims to land. The laws had been passed. The necessary personnel had been selected. The task lay ahead. And already there was trouble on the horizon.


SOURCES

Houck, Louis, A History of Missouri From the Earliest Explorations and Settlements Until the Admission of the State into the Union, 1908

Marshall, Thomas Maitland, The Life and Papers of Frederick Bates, Missouri Historical Society, 1926

Stoddard, Major Amos, Sketches, Historical and Descriptive, of Louisiana, 1812

The Territorial Papers of the United States, compiled by Clarence Edwin Carter, 1948

U. S. Statutes as Large


----------------------------------------
original composition by Steven E. Weible