James Madison Papers

To James Madison from James Wilkinson, 12 November 1805

From James Wilkinson

Territory of Orleans St. Louis. Novr. 12⟨th.⟩; 05.


When I reached this territory, I found a surveyor general in office, authorized by the regulations of Spain to appoint his deputies, and I continued him in commission, as I have done every other appointment of my Predecessor, Governor Harrison.

As we have no territorial law, which recognises a surveyor general, or defines the duties of such station, the propriety of the appointment, has been questioned by some, & the functions of the officer denied by others, which together with the variety of interpretations, applied to the Act of the 2d. of March, “for adjusting land claims,”1 has involved some doubts and perplexities.

Perceiving that the opinion of the Judges (Lucas & Euston) favoured the right of individuals to survey & return plats to the Recorders office, at their discretion, & understanding that one Person, without qualification or responsibility, had actually proceeded to Survey under the sanction of Judge Euston’s countenance, my active interference, became necessary, to prevent the confusion frauds & pillage which were about to ensue.

On scrutinizing the Land Law applicable to the Territory, I observed that the 4th section of it required, “a plat of the tract or tracts claimed[”] to substantiate any incomple[te] title, or to effect its admission to record, & I also discovered, in the 5th. Section of the same act, the recognition of an “officer exercising in the District, the authority of Surveyor General.” These facts & the circumstances which I have stated, determined me to pursue my own Judgement, and to avail myself of the reservations of the 9th. Section of the Act, providing for the Government of the Territory, to avert the impending mischief.2

I accordingly Sir, in conformity with the authority, heretofore exercised by the Spanish Governors, digested regulations for the government of the Surveyor general & his deputies, passed a letter of Office to him on the subject of which you have copies under cover, & issued the proclamation forwarded you by Mr Parke the 6th. inst. of which the enclosed is a duplicate.3

The Spanish fees for surveying were four sous per acre, or thirty three reals per day exclusive of travelling expences: these had been reduced one half by Governor Harrison, & I have deemed it just to reduce them still lower, as you will perceive from the regulations.

I flatter myself these steps may suffice to protect the interests of Government, & secure the rights of Individuals, against the sinister speculations of a band of Swindlers of which you may have a glimpse, by glancing at the original Documents marked Russell4—I feel humiliated Sir, by the imposition of such frivolous details on your time, but under existing circumstances, I believe it may be necessary if, for no other reason, to meet the misrepresentations which disappointed avarice may send forth.

In my letter of the 21st. September I communicated the measures I had adopted, respecting the intrusion of sundry persons on the public domain at the Mine of Bretau, and I now transmit you the result of our enquiries. The report of Col: Hammond was not handed me, untile [sic] the 20th. ultimo, and I have since held it in reserve, that it might be accompanied by the representation of the People of St Genevieve, which I have recently recieved, & now forward them together.5

It remains with government to determine which shall ultimately be done in this case, in order to furnish, a correct view of the local, I shall direct an exact survey to be made of the mine lands, & the approximate settlements, to be transmitted to you; But in the mean time I have yielded to a spirit of conciliation, & the rights of prescription set up by the inhabitants who have been permitted to prosecute their labours as usual, untill the pleasure of Government shall be expressed.

The “act for ascertaining & adjusting titles & claims to lands,” appears to be too close in some respects & too loose in others; In the latter view I am at a loss to devise, how we are, to protect our Mines & salines, against the Head rights recognised by the 2d section of the Act, or even against ancient Legitimate French or Spanish concessions, unless by forfeiture for non improvement under the Spanish regulations, of which I have the honor to transmit you an authentic copy [not found]. With perfect respect I am Sir your obt. Servt.

(signed) Ja: Wilkinson

Tr and enclosures (DNA: RG 46, Territorial Papers of the U.S. Senate, 8th–14th Congress, Louisiana Territory). Enclosed in Gallatin to Thomas Worthington, 8 Feb. 1806 (ibid.; printed in Carter, Territorial Papers, Louisiana-Missouri, 13:432–35). For surviving enclosures, see nn. 3–4.

1For the act, see U.S. Statutes at Large, 2:324–29.

2For section 9 of the act providing for the government of Louisiana, see Wilkinson to JM, 6 Nov. 1805, n. 3. The act allowed laws and regulations then in force to remain until changed by the territorial legislature and since the legislature had not yet met, Wilkinson was operating under the assumption that Spanish regulations still applied.

3The enclosures are a copy (3 pp.) of Wilkinson’s 2 Nov. 1805 “Regulations for the Government of the Surveyor General and his Deputies,” and a copy of Wilkinson to Antoine Soulard, 5 Nov. 1805, in which the regulations were enclosed (1 p.; printed in Carter, Territorial Papers, Louisiana-Missouri, 13:437–38). For the proclamation, see Wilkinson to JM, 6 Nov. 1805, and n. 7.

4Wilkinson enclosed a 1 Nov. 1805 agreement between William Russell and Michael Masterson (1 p.; endorsed by Wilkinson; printed ibid., 439), stating that Masterson claimed title to a tract of land on Sandy Creek by virtue of an improvement claim Masterson had bought from a Michael Null; that William Russell would “pay for surveying, recording and all other lawful charges, & expences” that might arise from having the title recorded; and he bound himself “to use all lawful endeavors … to bring forward said claim in a lawful manner,” in exchange for which Masterson had deeded to Russell one third of however much land would be covered by the rights Masterson had bought from Null. Wilkinson added his own note: “This paper was handed to me, by a poor & ignorant Man in its present condition (accidentally in the presence of Mr Jno Smith of the Senate) who beged my advice for his conduct.” Wilkinson added that Masterson claimed “920 acres, of which an unlicensed Surveyor was to have 300 for walking round the tract & paying about $10.—& the land estimated at $3 per acre.” Wilkinson also enclosed William Russell’s 6 Nov. 1805 statement (2 pp.; printed ibid., 439–40) that on 3 Sept. 1804 he had stopped in St. Louis on his way to the Meramec River region and was told that there was no one authorized to survey land in the district; that in conversation with Rufus Easton, Russell had asked the judge if he wanted any surveys done, to which Easton replied that he had an interest in two small tracts near the Meramec; and that he and Easton had traveled to David Fine’s property, where Russell, Easton, Fine, and his son had surveyed the property for which there apparently was a contract between Easton and Fine, with Fine to retain four hundred acres. Russell added, “the parties appeared to be well pleased with the survey & with each other.”

5Samuel Hammond’s report and the representation from the people of St. Genevieve district have not been found but they no doubt dealt with the lead ore on public land near St. Genevieve, which the residents had been accustomed to mine. On 19 Sept. 1805 Wilkinson wrote Hammond that the St. Genevieve district had been annexed to Hammond’s command and repeated reports he had heard about the mining of the ore, which it was claimed the Spanish had allowed (printed ibid., 220–21).

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