James Madison Papers

To James Madison from James Wilkinson, 6 November 1805

From James Wilkinson

St Louis November 6th. 1805


When I arrived in this Territory I found Rufus Easton Esqr occupying the Office of Attorney general, under the appointment of Governor Harrison, which was vacated by his acceptance of the Office of Territorial Judge.

Particular reasons prevented my filling the vacancy, but on the 29th. Ulto. the day when the General Court commenced its first term, I appointed a District Attorney to attend the same, believing no exception would be taken to the appointment, since the Territory is divided into Districts; This Officer was however rejected by the Judges, on the grounds set forth in the report (of Mr. Donaldson) No. 1, herewith enclosed,1 and I the next day appointed him Attorney general, but have to regret that this measure of accommodation, did not meet the approbation of the Court, as will appear by the report No. 2. from the same Gentleman.2

Whilst I lament this incident, because of its unfavorable aspect, towards that Spirit of conciliation and harmony which I had flattered myself would mark the intercourses of the Territorial Officers, I must hope that my conduct may be justified by usage immemorial, by Pre ce dents innumerable, by the arrangements of my Predecessor, and by the first, fifth and ninth sections of the Act “further providing for the Government of the District of Louisiana.”3

It had been proposed to commence the first session of the Legislature on the 4th. Instant but the intervention of the Court prevented, and I shall now endeavor to postpone all legislative proceedings, until the heats and animosities which have occurred, between the Judges and the grand Jury have Subsided; indeed the high powers claimed by the Judges, and the extravagant doctrines held forth by them, would probably widen the breach they have made, and which I am desirous to close, was the legislature to be immediately convened; I shall however watch over the Public Interests, and will promote those of the community, with my best skill and Judgement.

In my letter of the 29th. Ulto., I transmited you the depositions of David Fine and his wife and Lt. Hughes, respecting the conduct of Judge Easton;4 having previously furnished the Judge Copies of those Documents, and warned him in the presence of Governor Harrison of my intention—I since understand the Judge has attempted to extenuate his conduct in the case of Fine, buy endeavoring to prove the validity, of the concession purchased from Masterson, which renders it necessary for me to apprize you, that this concession was forfeited by the 14th. Article of the Spanish Regulations respecting the granting of lands, uttered on the 9th. of September 1797, by the then Governor General of the Province of Louisiana, Don Manuel Gayoso de Lemos, which sets forth that “the new Inhabitant to whom a concession of land shall have been granted, shall forfeit the same, if within one year he does not begin to settle it, and the same with him who by the third year shall not have cultivated six acres on every hundred” and by the 15th. Article of the same regulations it is also declared that “the Settler will not be permited to sell his lands unless he has raised three crops, the produce of the tenth part of his cultivated land.” It is also equally clear that this concession of Mastersons, was excluded by the settlement of Fine, under the Act of Congress of the 2nd. of March last,5 and I beg leave for illustration of this transaction, to refer you to the Deposition of Masterson, which will be found under cover.6

I trespass on your attention the Copy of a Notification which has caused me great trouble, and drawn on me much obloquy, and I have no doubt, the Proclamation I have this day issued of which you have also a Copy enclosed,7 will draw on me a load of unmerited opprobrium, yet I feel myself justified in both cases, by a sense of duty to the Public and to Individuals—But I do sincerely regret that the conduct and declared opinion of the Judges, should have rendered the last Act necessary, for I have been taught by experience, that if license was given to all persons without qualification or responsibility, to return Plats of Survey to the Recorders Office, a door would be opened to excessive frauds, and endless confusion would ensue.

This letter will be handed to you by Mr Parke the Representative to Congress from the Indiana Territory,8 who is well acquainted with this Territory, its Population and trading Characters. With perfect respect I am Sir your Obedt Servt9

Ja: Wilkinson

RC, two copies, and enclosures (DNA: RG 59, TP, Louisiana, vol. 1); Tr of enclosures (DNA: RG 46, President’s Messages, 9B–A3). First RC in a clerk’s hand, signed by Wilkinson; docketed by Wagner. Second RC marked “Duplicate”; in a clerk’s hand, signed by Wilkinson; docketed by Wagner. Minor differences between the copies have not been noted. For surviving enclosures, see nn. 1–2, 6–7, and 9.

1The enclosure (5 pp.; in a clerk’s hand, except for Donaldson’s complimentary close and signature; addressee inserted by Wilkinson; printed in Carter, Territorial Papers, Louisiana-Missouri, 13:256–59) is a copy of James L. Donaldson to Wilkinson, 29 Oct. 1805, stating that when he appeared before court that day and presented his commission as district attorney for St. Louis to judges Rufus Easton and John B. C. Lucas, they rejected it on the grounds that the governor could only appoint an attorney general and that a district attorney could not argue in a superior territorial court. They then required Donaldson to spend much time presenting arguments in defense of his commission and again rejected it, after which observing that they had no personal objections to Donaldson, they offered him the post as prosecuting attorney under an appointment from the court. Donaldson declined the post because acceptance “would be a formal renunciation of the right of the Governor,” whereupon the judges named William Carr prosecuting attorney instead.

2The enclosure (4 pp.; in a clerk’s hand, except for Donaldson’s complimentary close and signature; addressee inserted by Wilkinson; docketed by Wagner; printed ibid., 261–63) is a copy of Donaldson to Wilkinson, 3 Nov. 1805, reporting that the court had nullified the appointment as territorial attorney general that Wilkinson had conferred on him on 30 Oct. He listed the reasons the court had given for rejecting his appointment and argued against them.

3Section 1 of the 3 Mar. 1805 “Act further providing for the government of the district of Louisiana” vested the executive power of the territory in the governor; section 5 stated: “for the more convenient distribution of justice, the prevention of crimes and injuries, and execution of process criminal and civil, the governor shall proceed from time to time as circumstances may require, to lay out those parts of the territory in which the Indian title shall have been extinguished, into districts, subject to such alteration as may be found necessary; and he shall appoint thereto such magistrates and other civil officers as he may deem necessary”; section 9 stated: “the laws and regulations, in force in the said district, at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force, until altered, modified, or repealed by the legislature” (U.S. Statutes at Large, 2:331–32).

4Neither Wilkinson’s 29 Oct. 1805 letter nor the depositions of the Fines have been found. Lt. Daniel Hughes’s 16 Oct. 1805 deposition (2 pp.; certified by Auguste Chouteau) stated that about 25 Sept. 1805 one Henry Cassidy told Hughes that he had engaged Rufus Easton as agent to obtain the American land commissioners’ sanction to the title to one-and-a-half-million acres of land granted by the Spanish governor general to several proprietors and that Cassidy had agreed to grant Easton ten thousand acres of that land as compensation to be delivered as soon as title was established. At the bottom of the deposition is an undated note by Wilkinson stating that he had read the deposition to Easton in Gov. William Henry Harrison’s presence and that Easton had acknowledged the fact, stating that since the governor was advising the poor gratuitously, Easton thought he had an equal right “to advise the rich for what they would freely give Him.” Easton blamed Wilkinson’s exposure of his conduct on Wilkinson’s federalism and said he and his friends would “demolish” Wilkinson and Harrison. For Easton’s dealings with David Fine, see Carter, Territorial Papers, Louisiana-Missouri, 13:249, 321–22.

5The 2 Mar. 1805 “act for ascertaining and adjusting the titles and claims to land, within the territory of Orleans, and the district of Louisiana” stated, among other things, that anyone who claimed under a Spanish grant had to have actually been settled on the land prior to 20 Dec. 1803 (U.S. Statutes at Large, 2:324–26).

6Wilkinson enclosed the 4 Nov. 1805 deposition of Michael Masterson (1 p.; docketed by Wagner; printed in Carter, Territorial Papers, Louisiana-Missouri, 13:263–64) that in 1797 he had received a grant of four hundred acres of land near the Meramec River from the Spanish commandant, that he had planted turnips on it and cut down some trees, but hearing that someone else claimed the land, and having married a woman who preferred to stay in Indiana Territory, he had done nothing further. In 1804 he visited the plat where David Fine was apparently squatting, told Fine he had a title to the land, and offered to transfer it to Fine if the latter would pay Masterson for the improvements he had made, which Fine refused. In the spring of 1805 Rufus Easton stopped by Masterson’s house and offered to buy the land. Masterson accepted the offer and received “ten Cows and Calves.” Easton then contracted with Fine for whatever title the latter had to the land. Although evidence was given that Fine was able to read and write, he signed a 27 Dec. 1805 memorial to Jefferson with an X. On 30 Dec. 1805 the St. Louis bar issued an opinion that Easton’s conduct in the transaction had “not been in the most distant degree, fraudulent or mala fide” (ibid., 249, 321–22, 329, 343, 366–68).

7Wilkinson enclosed copies of (1) his 18 Sept. 1805 public notice regarding land sales (1 p.; in a clerk’s hand, signed by Wilkinson; docketed by Wagner as received in this letter; for the notice, see Wilkinson to JM, 21 Sept. 1805, n. 3) and (2) his 4 Nov. 1805 proclamation (1 p. each; in English and French; printed ibid., 264–65) stating that because “certain unauthorized Persons” had “presumed to enter upon the survey of the lands of this Territory” in opposition to the act providing for the government of Louisiana (see n. 3 above), causing confusion, “a perplexity of titles,” and “endless litigation,” he was prohibiting all persons except those authorized by the surveyor general from “prosecuting Such pernicious and unlawful proceedings.”

8New Jersey native Benjamin Parke (1777–1835) later moved to Lexington, Kentucky, where he studied law. On admission to the bar, he moved to Vincennes, Indiana Territory, where he was a strong supporter of Gov. William Henry Harrison. He served as attorney general from 1804 to 1808; he also served two terms in Congress. He resigned from both in 1808 to become a judge in the territory. He was a delegate to the state constitutional convention in 1816, and in 1817 was named federal district judge. He was for many years active in the state militia and fought at the Battle of Tippecanoe. He promoted public education and public libraries and was the first president of the Indiana Historical Society.

9Wilkinson also enclosed copies (2 pp. each; certified on 3 Nov. 1805 by William Prince, clerk of the general court; docketed by Wagner) of the judges’ 29 and 30 Oct. 1805 opinions on Donaldson’s commissions as district attorney and attorney general (printed in Carter, Territorial Papers, Louisiana-Missouri, 13:259–61). They stated that Donaldson could not as district attorney be an officer of the court that embraced the entire territory, that no such officer had any power defined by law, that the position of attorney general existed when the territorial government was created and no subsequent law had changed that, and because, so far as the law recognized public prosecutors, it referred only to an attorney general and his deputies. They rejected his commission as attorney general on the grounds that the act creating the territory authorized the governor to appoint district officers, which did not include the attorney general; that under that law there was no provision for an attorney general and, if there were, there would still be no authorization for the governor to make the appointment.

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