James Madison Papers

To James Madison from John Coburn, 15 August 1807

Kentucky, Maysville Augt. 15th. 1807.


I returned a short time past from the Territory of Louisiana; during my stay there, the Legislature were employed in enacting several important Laws, for the Government of the Territory. It may not be considered as improper if I offer some few remarks respecting that Country. From the collected information derived from different sources, the most correct knowledge of this distant Territory may be obtained.

We found the few indigested Laws, which were in operation, extremely inadequate to the proper administration of Justice, and the Government of the Territory. The mass of Law heretofore in force was composed of crude & very discordant materials. The usages and customs, derived from the Spanish Government. The Laws organizing the Territorial Government, with perhaps the Ordinance of 1787, and with those the whole system of English Common Law; together with the Laws enacted by the Governor and Judges of the Indiana Territory. From this extensive Source proceeded the administration of Justice, and in practice it was found totally inadequate to the peculiar situation of the Territory. The usages and customs of the Spanish Government said to be in force, in Louisiana, are extremely difficult to ascertain, and in many instances not susceptible of proof. There being no regular record kept of the decisions, rendered by the several Commandants; and altho the Courts have in several instances resorted to parol proof, to ascertain a particular usage; the dangers attendant on this practice are obvious. The recollection of uninformed men, and the interested views of others; both as to the existence or extent of a decree of a Commandant, or a particular custom, is in general too imperfect, to afford a proper guide to a decision. There are doubts existing, whether those usages and customs are really engrafted into the system of Laws, by the acts of Congress organizing the Territory. To remedy the evils arising from this source and to meet the wishes of the French inhabitants, we were induced to incorporate in our Laws several leading commercial customs; existing in the Country for a series of years. Those customs are peculiar to the Country, and are perhaps necessary for the convenience of the trading part of society.

For example, We permit a debtor in certain contracts to have the alternative, to pay his creditor in peltry lead or Cash. We permit the Merchant who advances the merchandize for a trading voyage with the Indians; to retain a Species of lien, on the peltry & furs produced by the voyage, in preference to subsequent or other debts contracted by the voyager. It was our wish to assimilate by insensible means, the habits and customs of the American and French inhabitants; by interweaving some of the regulations of the latter into our Laws, we procure a ready obedience, without violence or complaint. We considered this policy as good, and founded on substantial Justice.

I would here take the liberty to remark, that altho some of our American Citizens have entertained strong prejudices, against the manners, habits, language, and religion of the French settlers in Louisiana, Those settlers appear to me, to be an inofensive and peaceable people, little disposed to disturb the harmony of Government, and I think they will be found to be easily governed; as they are strangers to riot, tumults and drunkeness. It is true that, they are unhappy at this particular period, And they assign as reasons; that their land claims are unsettled, and that the administration of Justice is dilatory. That there should be some causes of uneasiness is by no means surprizing. The change of Government, the prospect that their language, religion manners & influence, are about to be swallowed up in the American character, are some causes of unpleasant sensations: It only requires that a temper of conciliation, mixed with impartial Justice should be observed by the rulers of the Territory. That they should feel and act superior to national, local religious or civil distinctions; and endeavor to blend in a common mass, the various characters of settlers who may be resident in that country. The fost’ring hand of our mild and rational Government, needs but faithful agents to produce happiness, harmony & obedience in the Territory of Louisiana. Government only requires correct information, to act with propriety towards all its dependencies; and those on whom the important charge of Government is to operate, only want candid and faithful representations made to them, in order to produce a ready and willing obedience to the Laws. I have ventured to suggest those few thoughts, respecting the French settlers in that Territory, from a sense of duty and to endeavor to promote a correct knowledge of them. An object of extreme importance and essential to the happiness of that Territory is the speedy adjustment of the early claims to Land; the actual and bona fide occupant and the early grantee, would feel happy if their claims were once determined, And untill this event takes place, that description of people will feel unsettled, remain at the mercy of the speculator, and be more easily acted upon by the discontented.

It appears to be the wish of the members at present composing the Legislature of the Territory of Louisiana, that a system of Laws should be adopted for its government, as plain, simple and intelligible as practicable. They unwillingly yield to a necessity of engrafting obscure, and undefined usages and customs, and prefer that such customs as may be deemed proper to be continued, should be introduced by express Legislative acts, in preference to construction. They reluctantly would incorporate the unwieldy mass of written and unwritten Law of England into the Territory.

And altho they are sensible that it would require considerable Legislative industry to frame a code of Laws, calculated to embrace the various cases, which may occur, yet the task would be less arduous, to frame a system to operate on an infant Territory, than on a highly civilized people. It would perhaps be desirable, that some portion of the American soil should be governed by Laws of domestic origin, and that it should be exempt from the shackles of European Law, as much as possible. The Legislature I presume would feel no disposition to enter too deeply into the field of experiment, nor would they venture to embarrass the inhabitants of the Territory with theories untried.

They would endeavor to disentangle the System of Laws, from unmeaning forms, and incorporate principles, sanctioned by the experience of Americans, having great regard to any circumstances peculiar to the Territory.

I shall return in a few weeks to St. Louis, and should be much gratified by any observations, which any member of the Administration would please to furnish conducive to the government of the Territory of Louisiana. I am Sir with Sincerity, Yr mo. obt.

Jno. Coburn

DNA: RG 59-TP-Territorial Papers, Orleans.

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