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To James Madison from Albert Gallatin, 17 May 1811

From Albert Gallatin

Treasury Depmt. May 17th 1811


The Acts for adjusting claims to lands in the Territories of Orleans and Louisiana have, where the parties had not obtained complete titles, recognised only three species of claims as valid vizt. 1t. Orders of survey. 2d. permission to settle. 3d. possession for Ten consecutive years, prior to the 20th Decr. 1803.

1: Orders of survey must have been dated prior to the 1st. day of October 1800. the land must have been cultivated and inhabited and the parties residing in the province on that day: And the conditions attached to this concession must have been fulfilled.1

2: The permission to settle must have been granted prior to the 20th December 1803; and the land must have been cultivated and inhabited on that day. But a settlement commenced prior to the 1st. October 1800 & continued for three years is declared by the act to be sufficient proof of a permission. Only one tract & no tract greater than 640 acres to be allowed under this species of claim (with such farther quantity as by the Spanish usages was allowed to the wife and family of a settler) and only provided that no other tract is claimed in the territories under any french or Spanish grant.2

3: The possession for ten years is in favor only of persons residing in the Territory on 20th. Decr. 1803 and cannot confer a right to more than 2000 acres.3

With the exception of the last species of claims, Actual Settlement on the 1st. October 1800 or on the 20th. Decr. 1803. is the essential requisite. If founded on an order of survey the quantity of land is not limited, but the conditions on which the completion of the grant might depend must have been fulfilled. If founded only on an actual or presumed permission to settle the quantity of land is limited to a quantity which it is understood could never exceed 960 arpens.

It will be perceived by the enclosed copy of the “general principles of decision” adopted by the board of Commissioners of Opelousas4 that they have altogether set aside that essential principle. For they have not only admitted in addition to the Order of survey a new species of title, vizt. the requête or petition of the party signed by the Commandant which is nothing else than the permission to settle contemplated by the act: but they have in the face of the law declared that no fulfillment of conditions was necessary and expressly that no proof of settlement would in either case be required.

It is presumed that the Commissioners suppose that the 4th section of the Act of 3d. March 1807. has given them the right to make decisions on that principle. It is thereby enacted that the Commissioners shall have full powers to decide according to the laws and established usages and customs of the French and Spanish Governments upon all claims to lands within their respective districts for tracts not exceeding one league square where the claim is by or for persons who were inhabitants of Louisiana on the 20th Decr. 1803; and that their decision when in favor of the claimants shall be final against the United States any act of Congress to the contrary notwithstanding. The last words apply only to the provisions by which it had been enacted that all the Commissioners decisions should be transmitted to Congress for approbation or rejection: and it is evident by the last mentioned act itself that the power to decide according to French & Spanish laws & usages was not intended to recognize new species of claims or to repeal the essential principles enacted by preceding acts. For the 1st. section actually repeals one of those principles, vizt. the rejection of orders of survey in favor of minors; and the 8th section provides that the Commissioners shall in their report of claims not confirmed by themselves make two classes of such as ought in their opinion to be confirmed, vizt. 1t. such as ought to be confirmed in conformity with the acts of Congress; by which are meant those of more than one league square. 2d. “such as though not embraced by the acts of Congress ought to be confirmed in conformity with the laws & usages of the Spanish Government”; which class could include no claims whatever, if according to the construction assumed by the Opelousas Commissioners, they had the power to confirm claims not embraced by the Acts of Congress when in their opinion they were in conformity with the laws & usages of the Spanish Government.

The provision which makes the decision of the Commissioners final, has however superceded that part of the 5th section of the Act of 21st April 1806 which had enjoined it on them to conform in their decisions to such instructions as the Secretary of the Treasury might with the approbation of the President transmit to them in relation thereto. When therefore the enclosed communication from the Opelousas Commissioners was received, nothing more could be done than to express my opinion of the impropriety of their principles of decision, and to refer them to those adopted by the Commissioners of New Orleans.5 I had also understood that the danger of fraud was much less in that district than in upper Louisiana; and it is proper to add that, however injurious the proceedings of the Opelousas Commissioners may in that respect have been, it is believed that they have been actuated by the purest motives. The publication of their rules of decision has in the mean while created much dissatisfaction in the two other districts of New Orleans & St. Louis, and has particularly in the last increased the clamours against the Commissioners and placed them in a very disagreeable situation. The use which is made of this publication by disappointed land claimants and by those intruders whose object is to unite all classes against the operation of the land laws may be easily understood. And I have been informed by Governor Claiborne that even in the Opelousas District, there is great danger of numerous frauds being committed particularly in relation to réquêtes which may have been fabricated at pleasure and on which there was no other check but the obligation of an actual settlement.

Under these circumstances the question arises as to what ought to be done or can be done. The President may remove the Commissioners, which will effectually cure the evil; or a letter may be written in his name expressive of his disapprobation, which may perhaps produce some effect.6 The propriety of adopting either of these, or some other measure in relation to this subject, is respectfully submitted. I have &c.

Letterbook copy (DNA: RG 49, Records of the General Land Office, Misc. Letter Book). Enclosure not found, but see n. 4.

1Opposite this paragraph the clerk wrote in the margin: “Act of 2d. March 1805. It sect.” (see U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 2:324–25).

2Opposite this paragraph the clerk wrote in the margin: “2d. March 1805. 2d. sect. / 21 Apl. 1806 1 sect / 2d. March 1805. 2d. sect.” (see ibid., 2:325–26, 391).

3Opposite this paragraph the clerk wrote in the margin: “3d. March 1807. 2: S” (see ibid., 2:440).

4These “principles of decision” had been forwarded to Gallatin on 16 Dec. 1810. In his letter of acknowledgment the treasury secretary observed that the board of commissioners had “adopted some rules not sufficiently strict, & calculated to confirm many unfounded claims” (Gallatin to the boards of commissioners at St. Louis, New Orleans, and Opelousas, 24 Apr. 1811, Carter, Territorial Papers, Orleans, 9:930–31).

5These principles had been stated in Joshua Lewis and Thomas B. Robertson to Gallatin, 25 Jan. 1811 (ibid., 9:919–21).

6JM evidently decided on a letter of “disapprobation,” the contents of which repeated much of Gallatin’s letter to him (see Gallatin to Levin Wailes, William Garrard, and Gideon Fitz, 24 May 1811, ibid., 9:934–36).

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