Biographical and Pictorial History of Arkansas, Chapter II

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BIOGRAPHICAL AND PICTORIAL HISTORY OF ARKANSAS.
BY JOHN HALLUM.
VOL. I.
ALBANY: WEED, PARSON'S AND COMPANY, PRINTERS.
1887.

Entered according to act of Congress in the year eighteen hundred and eighty-seven,
BY JOHN HALLUM, 
In the office of the Librarian of Congress at Washington.


BIOGRAPHICAL AND PICTORIAL
HISTORY OF ARKANSAS.

HISTORICAL.

CHAPTER II.

THE ACQUISITION OF LOUISIANA BY THE UNITED STATES AND OBLIGATIONS OF THE LATTER
TO THE INHABITANTS OF THE CEDED TERRITORY.

IN 1800, citizen Bonaparte, first consul, at the head of the victorious legions
of France, overrun Spain and forced his Catholic majesty, by the secret treaty
of St. Ildefonso, concluded the 1st day of October, 1800, to cede Louisiana to
France. Ratifications exchanged 24th March, 1801. The treaty was kept a profound
secret at the instance of Bonaparte because he was at war with England, which
had superseded Spain as the mistress of the seas. He well knew that one order
from Downing street or Trafalgar square to the British admiralty would sweep
away all the interest of France in the new world. America's overshadowing
greatness and power, strange as it may seem, is, to a great extent, due to the
weakness of the greatest statesman and warrior of modern times.

Or, it may be just as well expressed by saying it is due to England's mastery on
the ocean at a critical period in European diplomacy. It was impossible for
France to maintain colonial ascendancy in the west whilst at war with great
maritime rivals. There was also another powerful motive to dispose of
Louisiana,- Bonaparte wanted money to carry on his vast campaigns in Europe.

  President Jefferson's great desire at the time was to secure, by treaty with
  Spain, the free navigation of the Mississippi river, with a depot of trade at
  its mouth, and our minister at Madrid was instructed to open and press the
  negotiation. This gave rise to the secret information imparted to President
  Jefferson in 1802, that France owned Louisiana. James Monroe, afterward
  president, was sent as special minister to Paris with instructions to join Mr.
  Livingston, our resident minister, and to treat with Bonaparte for the free
  navigation of the Mississippi river. The mission was far more successful than
  the most sanguine anticipations led them to hope for. Bonaparte readily entered
  into negotiations and himself proposed the entire cession of Louisiana, which
  resulted in the cession on the 30th of April, 1803, for $15,000,000, $11,250,000
  of which was to be paid to France, and the remainder of $3,750,000 was to be
  paid to American citizens for spoliation of their commerce on the high seas
  during the quasi war with France. To the shame of our government, the latter
  claims have never been paid, but have given rise to a Pandora's box of
  congressional legislation, investigation and inquiry. Thirty-six different
  congressional committees have had the matter in charge and it is still under
  consideration.

  Bonaparte said to our ministers when the treaty was concluded: "This cession of
  territory strengthens forever the power of the United States, and I have just
  given to England a maritime rival that will sooner or later humble her pride."
  This treaty is the crowning glory of Jefferson's administration; and if he had
  done nothing else to endear his name to the American people, this one act would
  render it immortal.

  The treaty reached Washington in July, 1803, and strange, at this day to say,
  its ratification in the senate was opposed by the old federal party leaders, so
  blind were they to the nation's interest. 

  The population of Louisiana at the time of the cession has been variously
  estimated by different authors. Mr. Stephens, in his History of the United
  States, page 393, estimates it at ninety -thousand, near one-half of which, he
  says, were negro slaves. This estimate is in the opinion of the author much too
  great, for the following reasons: Don Manuel De Lamos Gayoso, governor-general
  of Louisiana in 1798, directed the census of both upper and lower Louisiana to
  be taken. Complete returns were made on the 18th July, 1799, showing the total
  population of Louisiana at forty-nine thousand four hundred and seventy-five;
  only about one-fourth of this population was negroes. The old Spanish records
  (to which Mr. Stephens, I presume, did not have access) show this. The
  population of the parish of Arkansas is set down in these returns at three
  hundred and sixty-eight.

  Arkansas was under the dominion of the governors or viceroys of France from 1689
  to 1762 inclusive, and it was under the dominion of the governors-general of
  Spain from 1762 to 1803. During this period eleven viceroys ruled over Arkansas
  and nine governors-general, exclusive of the dominion of Law and his successors
  from 1718 to 1732.

  A great number of incipient land titles were issued under the authority of these
  rulers, which has given rise to a vast volume of legislation and judicial
  determination in State and national courts. The secret treaty of St. Ildefonso
  gave rise to some intricate and very interesting questions, and some able
  discussions in the supreme court of the United States, relating to land titles
  acquired from the Spanish authorities after Spain had ceded the territory to
  France.

  The governor-general of Louisiana, being unadvised by his royal master of the
  cession to France, continued to dispose of the public domain in the name of
  Spain. All the titles issued in the interim between the 1st of October, 1800,
  and the 30th of November, 1803, were thus tainted. The early viceroys of France
  and the later governors-general of Spain, were clothed alike with little less
  than absolute authority, being so far removed from the parent government. The
  right of appeal which existed under the Spanish authorities, in virtue of a
  royal edict from the Emperor Charles V, amounted to little more than a shadow.
  Judge White who translated and compiled "The Laws of the Indies," in this
  connection says (vol. 2, p. 503): "Even the laws of the Indies, obscure,
  perplexed and even sometimes unintelligible as they are, hardly reached across
  the ocean, and the doctrine of the Spanish, like that of the Roman empire was
  marked by the absolutism of the distant prefects.

  Intrusted with the command and defense of remote and exposed possessions - often
  reduced to the greatest extremities - neglected by the feeble government of the
  mother country, they were yet expected to guard the colony and execute the most
  rigorous system of monopoly, amid greedy neighbors and an impoverished people.
  They were often obliged to create their own resources. Their "first duty was to
  preserve their Catholic majesty's province committed to their care." And again,
  the same able and learned author says (vol. 2, p. 503): "Every nation has its
  own manner of securing the fidelity of its agents. Free governments are
  constructed upon the principle of intrusting as little power as possible, and
  providing against its abuse, by all species of checks and limitations. Arbitrary
  ones proceed on the principle of bestowing complete powers and extensive
  discretion, and guarding against their abuse by prompt and strict accountability
  and severe punishment. How absurd, then, would it be to apply the maxims of the
  one to the acts of the other.

  As well might we judge the life of Pythagoras by the law of the New Testament,
  or the philosophy of Zoroaster by that of Newton, as to subject the
  administration of a Spanish governor to the test of magna charta, the bill of
  rights, the habeas corpus act, or the principles of American constitutional law.

  The United States, in virtue of the law of nations and the seventh article of
  the treaty of Paris, was bound to respect and protect the inhabitants of the
  ceded territory in their landed property. That vast body of civil polity known
  as the common law of England and her colonies was utterly unknown to the
  inhabitants of the ceded territory, where the civil law derived from the Romans
  prevailed.

  The Roman or civil law, although "the grand original" of many precepts embodied
  in the common law of England, yet, as a distinct system, bears but little
  relation to that code so dear to Englishmen and their descendants. Outside of
  the territory acquired it may safely be assumed that there was in 1803 neither
  lawyer nor jurist who was able to define the extent of the obligations assumed
  by the United States in relation to her new subjects. The government then found
  itself in the attitude of having assumed obligations with the details of which
  it was ignorant.

  In March, 1804, congress authorized the president to appoint three commissioners
  each in lower and upper Louisiana, whose duty it was to examine into the land
  titles of the inhabitants and report the result of their action to congress for
  confirmation or rejection of claims reported on. This act was the original of a
  large body of statutes passed by congress on the subject.

  Judge White says: "The want of information has caused a delay in the adjustment
  of titles which could, under no other circumstance, be excused. It is now thirty
  years since many titles in Louisiana, Arkansas and Missouri had been presented
  for confirmation." To obviate these great difficulties as far as possible, the
  Hon. Joseph M. White of Florida, at the suggestion of Wm. Wirt, attorney-
  general, was employed by the government to collect and translate the laws of
  Spain and France, the colonial ordinances of each, and the local ordinances of
  Great Britain. His beautiful and accomplished wife lent her scholarly
  attainments to the accomplishment of this great task, but her husband forgot to
  record his obligations to his noble wife for the fame which she helped to win
  and wreathe around his name; now both are gone, let justice be done and the
  jeopardy of veritable tradition pass into authentic record. For want of an
  understanding of these laws congress confirmed spurious claims to $10,000,000
  worth of land in Louisiana. These claims involved a large volume of litigation.
  In some instances their consideration was taken from the commissioners and
  transferred to the Federal courts. I find in an old copy of The Arkansas Banner
  published in Little Rock in January, 1845, the following notice:

  "The district court of the United States for the district of Arkansas, for the
  adjudication of unconfirmed French and Spanish land claims, has adjourned until
  the fourth Monday in March, 1845.
                                "WM. FIELD, Clerk."

  The first designation of Arkansas as a geographical unity, a political identity,
  is found in the old Spanish records denominating it as one of the parishes of
  lower Louisiana.