Written Law and Unwritten Norms in Colonial St. Louis

Law and History Review

Volumn 14, Issue 1, 1996, Pages 33-80

  Banner, Stuart ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0040667589     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/827613     Document Type: Article

References (132)

1. Letter, Amos Stoddard to William C. C. Claiborne and James Wilkinson, March 26, 1804, Amos Stoddard Collection, Box 1. For information about the sources consulted for this study, see the Appendix.
2. Letter, Frederick Bates to Richard Bates, December 17, 1807, 1 THE LIFE AND PAPERS OF FREDERICK BATES 238 (Thomas Maitland Marshall ed., 1926).
3. Letter, William C. C. Claiborne to Lieut. Bowmar, June 27, 1804, 2 OFFICIAL LETTER BOOKS OF W. C. C. CLAIBORNE 1801-1816, at 223-24 (Dunbar Rowland ed., 1917).
4. Letter, Frederick Bates to Meriwether Lewis, April 28, 1807, 1 THE LIFE AND PAPERS OF FREDERICK BATES 107.
5. JOHN BRADBURY, TRAVELS IN THE INTERIOR OF AMERICA, IN THE YEARS 1809,1810, AND 1811; INCLUDING A DESCRIPTION OF UPPER LOUISIANA, TOGETHER WITH THE STATES OF OHIO, KENTUCKY, INDIANA, AND TENNESSEE, WITH THE ILLINOIS AND WESTERN TERRITORIES, AND CONTAINING REMARKS AND OBSERVATIONS USEFUL TO PERSONS EMIGRATING TO THOSE COUNTRIES 284 (2d ed. 1819), reprinted as TRAVELS IN THE INTERIOR OF AMERICA IN THE YEARS 1809, 1810, AND 1811, BY JOHN BRADBURY 269-70 (Reuben Gold Thwaites ed., 1904). By Bradbury's own admission, he did not visit St. Louis until a few years after the Louisiana Purchase, so it is likely that his information about the Spanish legal system reflected the general view among Americans in St. Louis.
6. Letter, Peter Du Ponceau to J. B. C. Lucas, December 7, 1803, Lucas Collection, Box 2. Years later, Du Ponceau would be a leader of the Philadelphia bar and part of the first wave of American treatise writers. See PETER DU PONCEAU, A DISSERTATION ON THE NATURE AND EXTENT OF THE JURISDICTION OF THE COURTS OF THE UNITED STATES (1824); PETER DU PONCEAU, A BRIEF VIEW OF THE CONSTITUTION OF THE UNITED STATES (1834).
7. Letter, Albert Gallatin to Thomas Jefferson, August 20, 1804, 1 THE WRITINGS OF ALBERT GALLATIN 202 (Henry Adams ed., 1879). Gallatin was Jefferson's Secretary of the Treasury at the time.
8. Letter, Gouverneur Morris to unknown recipient, February 19, 1804, Louisiana Purchase Transfer Collection, Box 1. As Moses Austin described the residents of St. Louis, “Ignorant of all the principles of our Government they View things with an evil eye.” Letter, Moses Austin to James Wilkinson, July 22, 1805, 1 THE AUSTIN PAPERS 97 (Eugene C. Barker ed., 1924).
9. Letter, Frederick Bates to Richard Bates, December 17, 1807, 1 THE LIFE AND PAPERS OF FREDERICK BATES 24213. As one traveler put it a few years later, “[T]hey had not been accustomed to distinguish between the slow and cautious advances of even-handed justice, and the despatch of arbitrary power.” HENRY MARIE BRACKENRIDGE, VIEWS OF LOUISIANA TOGETHER WITH A JOURNAL OF A VOYAGE UP THE MISSOURI RIVER, IN 1811, at 144 (1814, Quadrangle reprint 1962).
10. BATES at 243. The Americans’ contempt for the local French residents extended well beyond their legal institutions. William C. Carr, one of the first American lawyers to arrive in St. Louis after the Louisiana Purchase, wrote back to his mother that “the French manner of living is not only extremely disagreeable to us, but is really very low.” In particular, “[t]he french women are undoubtedly the greatest sluts in the world,” because it was not unusual “to see a young lady traipsing through the streets sometimes barefoot sometimes with her shoes sliped down at the heel & to be informed, she was worth 50,000 dollars.” Carr swore, no doubt to his mother's relief, that he “would not marry a french girl if she [was] worth a million.” Letter, William C. Carr to Mrs. Charles Carr, June 21, 1804, William C. Carr Collection, Box 1.
11. JOSEPH N. NICOLLET, SKETCH OF THE EARLY HISTORY OF ST. LOUIS (1842), reprinted in THE EARLY HISTORIES OF ST. LOUIS 158 (John Francis McDermott ed., 1952).
12. J. THOMAS SCHARF, HISTORY OF ST. LOUIS CITY AND COUNTY, FROM THE EARLIEST PERIODS TO THE PRESENT DAY: INCLUDING BIOGRAPHICAL SKETCHES OF REPRESENTATIVE MEN 300 (1883). Local historians, in their haste to get past those dark Spanish years, sometimes lose track of exactly what was wrong. Thus Scharf's “offensively paternal system” was, on the previous page, “patriarchial, but not paternal.” Id. at 299.
13. Rachel F. Vogel, Social Life in St. Louis, 1764-1804, at 24 (Washington University M.A. thesis, 1921).
14. JAMES NEAL PRIMM, LION OF THE VALLEY: ST. LOUIS, MISSOURI 35 (2d ed. 1990). We can award the prize for the most overdrawn account of the Spanish colonial legal system to the Harvard-educated law professor who, with reference to its attempted reintroduction in lower Louisiana in 1806, described it as “not merely snobbish, pretentious and insolent, but provocative, disruptive and counter-revolutionary.” Mitchell Franklin, The Eighteenth Brumaire in Louisiana: Talleyrand and the Spanish Medieval Legal System of1806, 16 TUL. L. REV. 514, 516(1942).
15. By “positivist” I mean the conception of law that has characterized American legal thought for some time, the idea that law consists only of written texts issued by authorized agents of the sovereign, such as statutes, court opinions, etc. (Note that by including court opinions-which in contemporary law are written commands from authorized agents of the sovereign, just as much as any statute-I am diverging from one conventional usage of the term, which embraces only statutes.) I intend this sense of positivism to contrast with a conglomeration of alternative conceptions that admit valid unwritten sources of law, particularly the traditions of the community. This is the same sense of the word I understand Hendrik Hartog and David Millon to employ in Hendrik Hartog, Pigs and Positivism, 1985 Wis. L. REV. 899, and David Millon, Positivism in the Historiography of the Common Law, 1989 Wis. L. REV. 669.
16. There has been a longstanding controversy as to the date of Ste. Genevieve's founding. Carl Ekberg makes a persuasive case for 1750 in EKBERG at 11-25.
17. These figures come from Glen E. Holt, The Shaping of St. Louis 1763-1860, at 499 (University of Chicago Ph.D. dissertation, 1975). Holt compiled them from periodic censuses conducted by the Spanish colonial government, many of which have been published in THE SPANISH REGIME IN MISSOURI (Louis Houck ed., 1909). The numbers include slaves and free blacks but not Indians.
18. Letter, Amos Stoddard to W. H. Harrison, June 3, 1804, Amos Stoddard Collection, Box 1.
19. On French Illinois, see CHARLES J. BALESI, THE TIME OF THE FRENCH IN THE HEART OF NORTH AMERICA 1673-1818 (1992); NATALIA MAREE BELTING, KASKASKIA UNDER THE FRENCH REGIME (1948); CLARENCE WALWORTH ALVORD, THE ILLINOIS COUNTRY, 1673-1818 (1920); Winstanley Briggs, Le Pays des Illinois, 47 WM. & MARY Q. 30 (1990).
20. See PHILIP PlTTMAN, THE PRESENT STATE OF THE EUROPEAN SETTLEMENTS ON THE MISSISSIPPI 42-55 (1770) (reprinted 1973). From Pittman's description, it is clear that the towns on both sides of the river formed a larger network. He describes the location of St. Louis and Ste. Genevieve with reference to the towns on the eastern side, id. at 49-50; he notes how “short and easy” it is to get from Ste. Genevieve to “Cascasquias” (Kaskaskia) on the eastern side, id. at 50; and he identifies a resident of Ste. Genevieve as “the richest inhabitant of the country of the Illinois,” id.
21. THOMAS HUTCHINS, AN HISTORICAL NARRATIVE AND TOPOGRAPHICAL DESCRIPTION OF LOUISIANA AND WEST-FLORIDA 25 (1784) (reprinted 1968).
22. This is a drastic compression of a much-described sequence of events. See, e.g., ARTHUR PRESTON WHITAKER, THE MISSISSIPPI QUESTION 1795-1803: A STUDY IN TRADE, POLITICS, AND DIPLOMACY (1934); E. WILSON LYON, LOUISIANA IN FRENCH DIPLOMACY 1759-1804(1934).
23. NICOLAS DE FINIELS, AN ACCOUNT OF UPPER LOUISIANA 51-54 (1803) (Carl J. Ekberg & William E. Foley eds., Carl J. Ekberg transl., 1989).
24. On the legal institutions of New Orleans, see DEREK N. KERR, PETTY FELONY, SLAVE DEFIANCE, AND FRONTIER VILLAINY: CRIME AND CRIMINAL JUSTICE IN SPANISH LOUISIANA, 1770-1803, at 11-39 (1993). On the municipal government of New Orleans, see John G. Clark, The Role of the City Government in the Economic Development of New Orleans: Cabildo and City Council, 1783-1812, in THE SPANISH IN THE MISSISSIPPI VALLEY, 1762-1804 (John Francis McDermott ed., 1974); Ronald Rafael Morazan, Letters, Petitions, and Decrees of the Cabildo of New Orleans, 1800-1803: Edited and Translated, xxiii-xxxvii (Louisiana State University Ph.D dissertation, 1972).
25. One indication of this is that the standard treatments of the Spanish colonial American empire, even those limited to North America, barely mention Louisiana, much less Upper Louisiana. See DAVID J. WEBER, THE SPANISH FRONTIER IN NORTH AMERICA (1992); MARK A. BURKHOLDER & LYMAN L. JOHNSON, COLONIAL LATIN AMERICA (1990); C. H. HARING, THE SPANISH EMPIRE IN AMERICA (1947).
26. See ABRAHAM P. NASATIR, BORDERLAND IN RETREAT: FROM SPANISH LOUISIANA TO THE FAR SOUTHWEST 52-53 (1976).
27. Government business was thus often conducted in French rather than Spanish. “There is not at this post anyone who can write Spanish even moderately well,” complained Lieutenant Governor Fernando de Leyba as a way of apologizing for sending communications to New Orleans in French, “unless it be a soldier, of whose services I have not availed myself because of the many errors which he makes.” Letter, Leyba to Galvez, November 16, 1778, 1 SMV310.
28. The inadequacy of Upper Louisiana's military garrison was a constant source of complaints by lieutenant governors in St. Louis to governors general in New Orleans throughout the period. See, e.g., Letter, Perez to Miro, October 27, 1790, 2 SMV 387 (“Ylinueses [Illinois] has always been given little attention…. It is without sufficient forces to defend itself, as only forty soldiers, including two sergeants and one drummer, at the present time are its total garrison.”); Letter, Perez to Miro, December 4, 1790, id. 392 (complaining again of “its complete lack of defenses… because there are only two sergeants and thirty soldiers”). On the defense of colonial St. Louis, see JAMES B. MUSICK, ST. LOUIS AS A FORTIFIED TOWN (1941).
29. Spanish government officials were painfully aware of how the residents of Upper Louisiana identified themselves. In 1792, for example, Manuel Gayoso de Lemos reported that if war ever occurred, the “Anglo-Americans… would take the part of the United States,” and the French would side with France. Manuel Gayoso de Lemos, Political Condition of the Province of Louisiana, July 5, 1792, in 1 LRS 283-84.
30. See, e.g., Letter, Ulloa to Grimaldi, August 4, 1768, 1 SMV 59-60.
31. See Jay Gitlin, On the Boundaries of Empire: Connecting the West to Its Imperial Past, in UNDER AN OPEN SKY: RETHINKING AMERICA'S WESTERN PAST 85 (William Cronon, George Miles, and Jay Gitlin eds., 1992).
32. The statistics in this paragraph are for St. Louis in the year 1800; in earlier years and in other towns, the percentage of white men was slightly higher, the percentage of slaves, free blacks, and white women slightly lower. The statistics are taken from Glen E. Holt, The Shaping of St. Louis 1763-1860, at 502-3 (University of Chicago Ph.D. dissertation, 1975).
33. The occasional written records of free blacks provide a fascinating glimpse into a world about which we know little. In the 1803 estate auction of “negra livre” Juaneta Forchet, for example, we find that she owned a plot of land and enough property to occupy five pages of a list. St. Louis Colonial Archives, Box 9, Folder 4, Inst. 956. The free blacks of colonial New Orleans, a larger group, have been the subject of more study. See Thomas N. Ingersoll, Free Blacks in a Slave Society: New Orleans, 1718-1812, 48 WM. & MARY Q. 173 (1991); Kimberly S. Hanger, Personas de Varias Clases y Colores: Free People of Color in Spanish New Orleans, 1769-1803 (University of Florida Ph.D. dissertation, 1991); Lois Virginia Meacham Gould, In Full Enjoyment of Their Liberty: The Free Women of Color of the Gulf Ports of New Orleans, Mobile, and Pensacola, 1769-1860 (Emory Univ. Ph.D. dissertation, 1991).
34. Susan Boyle's excellent study of women in colonial Ste. Genevieve relied entirely on such documents, almost none of which were written by the women themselves. See Susan C. Boyle, Did She Generally Decide ? Women in Ste. Genevieve, 1750-1805, 44 WM. & MARY Q. 775 (1987). For a rare example of a surviving document written by a woman-in this case a married woman attempting to collect a debt owed to her absent husband (merchants spent long stretches away from home)-see Letter, Victoire Chouteau Gratiot to M. St. Gemes, August 10, 1794, Semsrott Collection, Box 1.
35. Many of the residents, particularly in later years, were of partial Indian ancestry as well. See Tanis Chapman Thome, People of the River: Mixed-Blood Families on the Lower Missouri 69-125 (UCLA Ph.D. dissertation, 1987).
36. On intermarriage, see PAUL BECKWITH, CREOLES OF ST. LOUIS (1893).
37. The estate of Pierre Laclede, for instance, included 781 pounds of coffee, eight gross of awls, three dozen “common hats,” and a wide variety of styles of handkerchiefs. Pierre Laclede Collection, Box 1, estate inventory at 6. He may have intended to use some of this himself and for trade with Indians, but some, especially all that coffee, must have been intended for sale to whites. William Carr noted that the French inhabitants all drank coffee with breakfast, although “[t]o a small cup of coffee, they add as much milk as will make a sufficiency for that meal, and, then they boil it which you must know destroys the taste of the coffee, gives it very much the flavor of boiled milk.” Letter, William C. Carr to Mrs. Charles Carr, June 21, 1804, William C. Carr Collection, Box 1.
38. The papers of Auguste Chouteau, for example, are full of promissory notes from various people. See, e.g., Jacob Filie, April 26, 1782, Chouteau Collection, Box 1 (“je promets payer a la volonte de M. Chouteau onze Livres Dix Sols”); M. Labuxiere, October 4, 1785, Chouteau Collection, Box 1 (“je payeray a Monsieur Chouteau ou a son ordre dans le… printems prochain la somme de deux cent trente huit livres en argent”). Many were Chouteau's employees. WILLIAM E. FOLEY & C. DAVID RICE, THE FIRST CHOUTEAUS 39 (1983). The importance of this kind of unofficial banking cannot be overstated. In an area chronically short of specie and lacking any financial institutions, these promissory notes served as currency. This practice resulted in some spectacularly complex networks of credit, usually denominated in units of peltries. See, e.g., “Statement of various promissory notes delivered to Monsieur Sarpy, by William Grant, to be recovered if possible at St. Louis in Illinois 22 March 1785,” Berthold Collection, Box 1. This sort of unofficial banking is typical of frontiers. See, e.g., HARLAN HAGUE & DAVID J. LANGUM, THOMAS O. LARKIN: A LIFE OF PATRIOTISM AND PROFIT IN OLD CALIFORNIA 84 (1990).
39. See, e.g., Letter, Charles Gratiot (in St. Louis) to Collignon (in London), June 8, 1796, in Warren Lynn Barnhart, The Letterbooks of Charles Gratiot, Fur Trader: The Nomadic Years, 1769-1797, at 381-89 (St. Louis University Ph.D. dissertation, 1972).
40. Given the geographical conditions, some of these men had remarkable libraries. See generally JOHN FRANCIS MCDERMOTT, PRIVATE LIBRARIES IN CREOLE ST. LOUIS (1938); id., Myths and Realities Concerning the Founding of St. Louis, in THE FRENCH IN THE MISSISSIPPI VALLEY 12-13 (John Francis McDermott ed., 1965). Jay Gitlin has perfectly captured the incongruity between the facts of life in colonial St. Louis and the enduring myths of the “frontier”: “someday, perhaps, schoolchildren will know that French merchants were reading Voltaire while, far to the east, Daniel Boone was ‘trailblazing’ in the supposedly unmarked wilderness.” Gitlin, On the Boundaries of Empire 72. Information about books and libraries comes from inventories of estates, many of which do not list specific titles, so it is likely that colonial St. Louis housed many more books than we know.
41. The title of this study would perhaps be more accurate if it referred to “Upper Louisiana” or “western Illinois,” or even “the Illinois country,” rather than St. Louis, which was just the local capital. The names Louisiana and Illinois, however, refer today to different places; a title with either of those names would thus be misleading. The name “Missouri” in the title would be an anachronism, as the name was applied at the time only to the river, not to the general area; the area came to be called Missouri only after the Louisiana Purchase.
42. On the Spanish assumption of control, see JOHN PRESTON MOORE, REVOLT IN LOUISIANA: THE SPANISH OCCUPATION, 1766-1770 (1976); DAVID KER TEXADA, ALEJANDRO O'REILLY AND THE NEW ORLEANS REBELS (1970). There have been three different published English translations of the first of Governor General Alexander O'Reilly's two relevant orders, in 1 AMERICAN STATE PAPERS, MISC. 363 (Gales & Seaton eds. 1834); 1 LA. L.J. no. 2, 1 (1841); and 1 SMV 108. The Spanish original is published in BlBIANO TORRES RAMIREZ, ALEJANDRO O'REILLY EN LAS INDIAS 187 (1969). The second of the orders is published, in English translation, in 1 AMERICAN STATE PAPERS 369, and 1 LA. L.J. no. 2, 27 (1841). The Spanish original is in RAMIREZ at 203. The original printed French version is in AGI, Cuba, leg. 2357, doc. 374. These orders were quickly given informal approval by the Spanish government. See Letter, Grimaldi to Unzaga, March 24, 1770, 1 SMV 163-64. Formal approval came in 1772. Hans W. Baade, Marriage Contracts in French and Spanish Louisiana: A Study in “Notarial” Jurisprudence, 53 TUL. L. REV. 1, 37, 42 (1978) (citing AGI, Cuba, leg. 180A, docs. 4, 6-11).
43. Because American officials needed Spanish law pertaining to land grants, parts of these codes-the portions that could conceivably affect the validity of a land grant-were translated into English in the early nineteenth century. See JOSEPH M. WHITE, A NEW COLLECTION OF LAWS, CHARTERS AND LOCAL ORDINANCES OF THE GOVERNMENTS OF GREAT BRITAIN, FRANCE AND SPAIN, RELATING TO THE CONCESSIONS OF LAND IN THEIR RESPECTIVE COLONIES; TOGETHER WITH THE LAWS OF MEXICO AND TEXAS ON THE SAME SUBJECT, TO WHICH is PREFIXED JUDGE JOHNSON'S TRANSLATION OF AZO AND MANUEL'S INSTITUTES OF THE CIVIL LAW OF SPAIN (1839). The new American state of Louisiana kept a background of Spanish law in effect where not modified by statute, a circumstance that led to the state-sponsored translation of most of the Siete Partidas. See THE LAWS OF THE SIETE PARTIDAS, WHICH ARE STILL IN EFFECT IN THE STATE OF LOUISIANA (L. Moreau Lislet & Henry Carlton transl. 1820). On the Nueva Recopilacion of Castile, see RICHARD L. KAGAN, LAWSUITS AND LITIGANTS IN CASTILLE 1500-1700, at 25-27 (1981). On the Siete Partidas, see E. N. VAN KLEFFENS, HISPANIC LAW UNTIL THE END OF THE MIDDLE AGES 155-64, 291-373 (1968). On the Recopilacion de las Indias, see JOHN THOMAS VANCE, THE BACKGROUND OF HlSPANlCAMERICAN LAW: LEGAL SOURCES AND JURIDICAL LITERATURE OF SPAIN 155-65 (1943).
44. See “Inventory of the Civil Archives of St. Louis-1799,” 2 SRM 261; “Inventory of the Civil and Military Archives of New Madrid-1799,” 2 SRM 273; “Inventory of Papers, Instructions, etc., Delivered to Don Manuel Perez by Lieutenant Governor Cruzat in 1787,” 1 SRM 258; “Inventory of Papers and Other Effects Delivered by Piernas to his Successor, Don Francisco Cruzat, May 19, 1775,” 1 SRM 126. Similar inventories, both of documents handed over and documents not handed over, were compiled before power was transferred to the Americans in 1804. See 2 SRM 331 (New Madrid, documents handed over); Valle Collection, Box 3 (Ste. Genevieve, documents handed over); Delassus Collection, Box 3 (St. Louis, documents not handed over). These latter inventories were prepared, at least in Ste. Genevieve, pursuant to American instructions. See Letter, Amos Stoddard to Jean Baptiste Valle, Sept. 30, 1804, Governors Collection, Box 1.
45. See JOHN FRANCIS MCDERMOTT, PRIVATE LIBRARIES IN CREOLE ST. LOUIS (1938). One interesting note here: Auguste Chouteau, probably the wealthiest man in Upper Louisiana, owned the first French edition (1766) of Beccaria's Traite de delits et des peines. Id. at 132.
46. AGI, Cuba, leg. 190, doc. 475, at 4. The earliest surviving government inventory for Ste. Genevieve is from 1804. It does not mention the Recopilacion, which suggests that someone removed the Recopilacion from Ste. Genevieve before that date.
47. Id. The order preserving the Code Noir in Spanish Louisiana is cited as AGI, Santo Domingo, leg. 2543, doc. 195, in Hans W. Baade, The Law of Slavery in Spanish Luisiana 1769-1803, in LOUISIANA'S LEGAL HERITAGE 54 (Edward F. Haas ed., 1983). On slavery in Upper Louisiana, see EKBERG, COLONIAL STE. GENEVIEVE 197-239; E. M. Violette, The Black Code in Missouri, 6 MISS. VALLEY HIST. ASSOC. PROC. 287 (1913).
48. There is only one other reference to codes of any kind in the sampled cases: Arguments made in 1800 in the protracted suit over who would inherit the estate of Genevieve Charleville contain scattered references to the Coutume de Paris, the French code which had supposedly been superseded thirty-one years earlier. See AGI, Cuba, leg. 217b, doc. 100.
49. See Baade, Marriage Contracts in French and Spanish Louisiana 1, 66-73. This practice probably came from across the river in Illinois, where formulaic reference to the Coutume was common in early eighteenth-century marriage contracts. Winstanley Briggs, The Forgotten Colony: Le Pays des Illinois 154 (University of Chicago Ph.D. dissertation, 1985).
50. The fudge-word “appear” is used because of the obvious difficulties in proving a negative proposition from the modern absence of documents. See DAVID HACKETT FISCHER, HISTORIANS’ FALLACIES: TOWARD A LOGIC OF HISTORICAL THOUGHT 478 (1970). This dilemma results from refusing to accept behavior in line with written law as proof in itself that the people doing the behaving are “following” the law in any meaningful sense of the word. Without examples of conscious rejection of written law or of case outcomes patently at odds with written law, the best evidence is the accumulation of individual cases in which the law was ignored.
51. See, e.g., Letter, Morales to Delassus, May 24, 1802, Delassus Collection, Box 7. The Spanish government did regulate international trade throughout the period by setting and lifting tariffs (see, e.g., Royal Cedula granting new favors to encourage the commerce of Louisiana, 1782, 2 SMV 1, 3) and by prohibiting the import of certain products (see, e.g., Letter, Arriaga to the Governor of Louisiana, January 12, 1772, 1 SMV 197). The government's attempts to enforce these rules suggest that traders in Upper Louisiana understood themselves to regulated by them, at least when they imported or exported through New Orleans.
52. See especially O'Reilly's order of November 25, 1769, 1 AMERICAN STATE PAPERS, MISC. 369 (Gales & Seaton eds., 1834); and “Instructions regulating the lieutenant governors of Illinois, Natchitoches and other dependencies of these, in everything concerning the administration of justice,” AGI, Cuba, leg. 2357, doc. 396 (Jan. 26, 1770). On land allocation, see 1 SRM 1 (order of 1767); 1 AMERICAN STATE PAPERS, MISC. 376 (order of 1770); AGI, Cuba, leg. 2365, doc. 378 (order of 1797); 3 AMERICAN STATE PAPERS, PUBLIC LANDS 432(1834) (order of 1799).
53. The phrase also appears in French as “temoins d'assistance.” Because no such role exists in our legal system, there is no good English translation; “assisting witnesses” is a literal translation, but the temoins d'assistance were witnesses only to the testimony of others, not to the underlying events giving rise to the litigation.
54. The hundred-peso limit is at AGI, Cuba, leg. 2357, doc. 396, at 1. For sample cases worth more than one hundred pesos, see, e.g., Litigation, Clamorgan against Bouvet, July 11, 1803, Litigation Collection (St. Louis); Ste. Genevieve Colonial Archives, Litigation #32; New Madrid Colonial Archives, Box 14, Inst. 1392. The jurisdictional limits appear not to have been taken very seriously in Arkansas either. See MORRIS S. ARNOLD, UNEQUAL LAWS UNTO A SAVAGE RACE: EUROPEAN LEGAL TRADITIONS IN ARKANSAS 1686-1836, at 53-56 (1985).
55. The order requiring sentencing in New Orleans is at AGI, Cuba, leg. 2357, doc. 396, at 3. For samples of sentencing in Upper Louisiana, see, e.g., Prosecution of Buteau and Baribeau, November-December 1779, Litigation Collection; Prosecution of Joseph Motard and Benito Basquez, June 17-20, 1779, Governors Collection. According to Derek Kerr, there is no evidence that any cases involving property crimes were ever referred from Upper Louisiana to New Orleans for sentencing. DEREK N. KERR, PETTY FELONY, SLAVE DEFIANCE, AND FRONTIER VILLAINY: CRIME AND CRIMINAL JUSTICE IN SPANISH NEW ORLEANS, 1770-1803, at 103 (1993). When the crimes were more serious, government officials in Upper Louisiana were more likely to send the case to New Orleans. See EKBERG, COLONIAL STE. GENEVIEVE 371 (citing cases).
56. See, e.g., Valuation of Victoria, June 1796, St. Louis History Collection, Box 1; “Sentence arbitrale entre J. Bte. Greuze &c. et Michel Lamotte 28 Avril 1803,” Emmons Collection, Box 1; “Arbitrage entre Clamorgan y Sanguinet,” June 10, 1800, Litigation Collection.
57. The 1799 letter from Gayoso de Lemos to Delassus suggesting official approval of arbitration is at 2 BLC 598. By 1804 Amos Stoddard could report that “[i]t is customary here to have all matters settled by arbitration.” Letter, Amos Stoddard to W. C. C. Claiborne, March 26, 1804, at 4, Stoddard Collection, Box 1. On arbitration in French Illinois, east of the Mississippi, in the first half of the eighteenth century, see Winstanley Briggs, Le Pays des Illinois, 47 WM. & MARY Q. 30, 46 (1990). Arbitration is, of course, a cross-cultural practice much older than the period discussed here and one that would have been familiar to Spanish lawyers at the time.
58. This discrepancy between written law and unwritten custom would fuel an immense amount of litigation in American courts, lasting much of the nineteenth century, devoted to determining the validity of Spanish land grants. See Eugene Morrow Violette, Spanish Land Claims in Missouri, 8 WASHINGTON UNIVERSITY STUDIES 167 (1921); Lemont K. Richardson, Private Land Claims in Missouri, 50 Mo. HIST. REV. 132, 271, 387 (1956); see also Paul Wallace Gates, Private Land Claims in the South, 22 J. So. HlST. 183 (1956).
59. For pre-1770 civil cases, see Ste. Genevieve Colonial Archives, Litigation #132; Litigation #45; Litigation #73; Litigation #122; and Litigation #121; see also Petition of Larose, January 1770, Valle Collection, Box 1. For the only surviving pre-1770 fragment of a criminal case, see Ste. Genevieve Colonial Archives, Litigation #52. For pre-1770 wills, see Ste. Genevieve Colonial Archives, Will #14 and Will #18; St. Louis Colonial Archives, Box 19, Folder 4, Insts. 2163, 2164, and 2165. For pre-1770 contracts, see St. Louis Colonial Archives, Box l,Folder5, Inst. 23; Box 1, Folder4, Inst. 16; Box 1, Folder 3, Inst. 13; Box 1, Folder 2, Inst. 2; see also Ste. Genevieve Colonial Archives, Agreements-Contracts #20. The continuity between pre-Spanish and Spanish contracting practices is equally apparent in the formulaic wording of the contracts, which predates any Spanish influence and barely changes throughout the entire period, apart from the fact that in the 1770s these documents begin to appear in Spanish as well as French.
60. See.e.g., 1 SRM 1, 13-15; 3 SMV 205; Order of Charles Dehault Delassus, Feb. 19, 1803, Emmons Collection, Box 1. On Indian trade, see GILBERT C. DIN & A. P. NASATIR, THE IMPERIAL OSAGES: SPANISH-INDIAN DIPLOMACY IN THE MISSISSIPPI VALLEY (1983); A. P. Nasatir, Anglo-Spanish Rivalry on the Upper Missouri, 16 MISS. VALLEY HIST. REV. 359(1929).
61. Most of these were concerned with protecting the slaves’ owners when the slaves interacted with third parties. See, e.g., 1 SMV 89-90; 2 SMV 150; 1 AMERICAN STATE PAPERS, MISC. 380-81. For “precise orders as to the treatment which the inhabitants must give to their Negroes so that they may get a suitable usefulness out of them without infringing with impunity the laws of humanity,” see 3 SMV 58-59.
62. See, e.g., 3 SMV 139; 1 AMERICAN STATE PAPERS, MISC. 377-79.
63. Sometimes local government officials were, quite literally, putting out fires. See 1 SRM 246: “The fires, of which there has been no instance until the present time, and which are singularly making their appearance for some days past without our being able to discover the causes, oblige us to take measures for preventing still greater dangers in such cases.” For another example of a response to a pressing problem-this time, too many dead animals in the street-see Ste. Genevieve Colonial Archives, Document #17.
64. See, e.g., Ste. Genevieve Colonial Archives, Documents #5, #26, #28, #30; St. Charles common field regulations, January 6, 1802, Emmons Collection, Box 1.
65. Letter, Bouligny to Miro, August 22, 1785, 2 SMV 138-39. On Bouligny, see GILBERT C. DIN, FRANCISCO BOULIGNY: A BOURBON SOLDIER IN SPANISH LOUISIANA (1993); LOUISIANA IN 1776: A MEMORIA OF FRANCISCO BOULIGNY 11-28 (Gilbert C. Din ed., 1977).
66. AMOS STODDARD, SKETCHES OF LOUISIANA 273 (1812).
67. See, e.g., Letter, Anonymous (“Le Peuple des Illinois”) to Galvez, 1780, in John Francis McDermott, The Myth of the “Imbecile Governor”: Captain Fernando de Leyba and the Defense of St. Louis in 1780, in THE SPANISH IN THE MISSISSIPPI VALLEY 1762-1804 368-
68. 72; Letter, Valiniere to Miro, February 23, 1788, 2 SMV 242-44; Letter, Trudeau to Valle, March 4, 1795, Valle Collection, Box 2.
69. A good example of this is John Reid's use of diaries to reconstruct the attitudes toward property and the “law-mindedness” of emigrants on the California and Oregon trails. See JOHN PHILLIP REID, LAW FOR THE ELEPHANT: PROPERTY AND SOCIAL BEHAVIOR ON THE OVERLAND TRAIL (1980).
70. Morris S. Arnold, Toward an Ideology of the Early English Law of Obligations, 5 LAW & HIST. REV. 505, 508 (1987). See also Millon, Positivism in the Historiography of the Common Law 669, 704-6. For the same idea with reference to a closer time and place, see John Phillip Reid, Principles of Vengeance: Fur Trappers, Indians, and Retaliation for Homicide in the Transboundary North American West, 24 WESTERN HIST. Q. 21, 34 (1993).
71. The best records in the remaining towns are for New Madrid. The New Madrid Colonial Archives contain lists of trials apparently compiled by the last commandant in 1804 for the benefit of incoming American officials. The list includes five criminal trials for the years 1791 through 1794, eight criminal trials still to be adjudicated from 1803 and 1804, twenty-three civil trials already adjudicated in the year 1804, and a list of seventeen criminal trials so badly damaged that the years the trials took place can no longer be determined. New Madrid Colonial Archives, Box 15, Inst. 1412.
72. For all these reasons, it would be pointless to attempt any statistical analysis of these cases of the sort that can be done with more recent, complete data. See, e.g., LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); RANDOLPH E. BERGSTROM, COURTING DANGER: INJURY AND LAW IN NEW YORK CITY, 1870-1910 (1992). The only result would be a misleading sense of precision, the false comfort that seems to come from counting things.
73. Census of Louisiana, September 2, 1771, 1 SMV 196. The total population was 605; the 273 black slaves and the 120 white women figure in barely any of that year's cases.
74. See, e.g., DAVID THOMAS KONIG, LAW AND SOCIETY IN PURITAN MASSACHUSETTS: ESSEX COUNTY, 1629-1692, at xi-xii (1979).
75. No relation to the Joseph Story, so far as I can tell.
76. New Madrid Colonial Archives, Box 10, Insts. 1005, 1005A (October 28-29, 1801).
77. Ste. Genevieve Colonial Archives, Litigation #25 (June-October 1794).
78. New Madrid Colonial Archives, Box 15, Inst. 1410 (March-April 1799). This example should dispel any notion that unwritten norms are necessarily simpler or more homespun than official written law. The merchants of New Madrid knew a great deal of what we would call the law of negotiable instruments; the key point here is that this law was derived from the practices of merchants like themselves, not from the command of any government official in New Madrid, St. Louis, New Orleans, or Spain.
79. Litigation, Moses Austin against Robert Greer (February-March, 1799), Washington County Court Collection, Box 1.
80. Generally accepted, of course, by the community of merchants, which did not include the slave whose future was in question. Undoubtedly he would not have characterized the issue as purely one of commercial law.
81. New Madrid Colonial Archives, Box 13, Inst. 1365, at 2.
82. See, e.g., New Madrid Colonial Archives, Box 13, Inst. 1358.
83. Roubieu responded that he only “struck her with the back of his fingertips, lightly and with restraint, on her head-kerchief; this could not have killed the weakest fly.” After angry petitions back and forth, the case settled; Constance moved in with her sister. Litigation, Dubreuil against Roubieu (February-November, 1786), Litigation Collection.
84. Letter, Peyroux to Francois Valle, June 11, 1792, Valle Collection, Box 1. Certain specialists may note a familiar ring to this dispute; the residents of Ste. Genevieve never spoke of transaction costs, but they would have agreed that the assignment of liability makes a difference. Cf. Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
85. Proceso entre Dn. Carlos Sanguinet y Dn. Santiago Clamorgan (February 27-March 28, 1787), at 4, Poepping Collection, Box 1.
86. Litigation between Vachard and Labadie (June 9-27, 1785), at 5, Litigation Collection.
87. AGI, Cuba, leg. 118, doc. 609, at 1.
88. In at least one instance, custom was also used to ascertain the intent of contracting parties, in much the same way it is used in American law today. In 1801 Hugh Wallace defended against Francois Duquette's petition to collect on a note by pointing out that the scrivener had written “1900” rather than 1800 as the year payment was due. Wallace explained that he was fully prepared to pay Duquette one hundred years later. Lieutenant Governor Charles Delassus ordered Wallace to pay Duquette immediately, on the ground that “it is not customary to enter into transactions like this one for a term of one hundred years.” Delassus also sentenced Wallace to eight days in prison for making an argument so clearly in bad faith. Litigation, Duquette against Wallace (January 7-March 27, 1801), Emmons Collection, Box 1.
89. Litigation, Pourree against Chouteau (November 14-16, 1782), at 2, Chouteau Collection, Box 1. A slightly different translation of this case has been published as The Case of Pouree Against Chouteau, 2 MISSOURI HISTORICAL SOCIETY PUBLICATIONS 68 (1900).
90. The arbitrators’ decision poses a difficult problem of translation because the phrase quoted in the text-“suivant conventions reciproques”-can be rendered as “foldislowing mutual understandings,” “conventions,” “agreements,” or “contracts,” each of which has a slightly different meaning, and those differences are crucial to the point being made. Even in English the words “understandings” and “conventions” have two meanings; they can refer to actual contracts among particular people or to an unarticulated (and often unknown) congruence of belief or desire. Finally, the arbitrators did not preface this phrase with any possessive pronoun, admitting the possibility that the “conventions reciproques” actually belong to the arbitrators, or even to the community at large, rather than simply to Pouree and Chouteau. I have opted for the translation that preserves as much of the ambiguity of the French original as possible, in each of these ways.
91. One indicator of the status of Papin and Cerre is that their names live on today as obscure streets in downtown St. Louis, which places them in a select group. Geographical names in St. Louis track the social and economic hierarchy of the early French community fairly closely. There are a handful of minor streets like Papin and Cerre; a couple of small neighborhoods bearing the names of Soulard and Laclede; and (at the top of the hierarchy) a major east-west artery called Chouteau. It is possible that Papin and Cerre would have self-interestedly preferred a rule favoring shippers over shipmasters, although if their personal gain from the establishment of such a practice would have been large, it is hard to see why Pouree would have chosen one of them as an arbitrator.
92. Opinions of Ezekiel Able, Andrew Price, Israel Dodge, Hugh Beatty, and Jos. Tucker regarding litigation between William Cowan & James Ferel (September 24, 1800), at 1, Valle Collection, Box 3.
93. The employees’ response, dated June 30, 1780, is in the Chouteau Collection, Box 1. The original petition of Labadie and Chouteau has been lost.
94. The arbitrators’ decision, dated July 31, 1780, is in the Soulard Collection, Box 1.
95. For a similar case, see Ste. Genevieve Colonial Archives, Litigation #205 (April 28-December 24, 1798).
96. The Black Legend is still alive. See, e.g., 1 SAMUEL ELIOT MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 74 (1972) (“Spanish America grew up understanding no form of government but autocracy tempered by corruption”).
97. For information on the organization and staffing of the area, see WILLIAM FRANCIS ENGLISH, THE PIONEER LAWYER AND JURIST IN MISSOURI 46-64 (1947); William E. Foley, The American Territorial System: Missouri's Experience, 65 Mo. HIST. REV. 403 (1971); Floyd C. Shoemaker, A Sketch of Missouri Constitutional History During the Territorial Period, 9 Mo. HIST. REV. 1 (1914); Isidore Loeb, The Beginnings of Missouri Legislation, IMo. HIST. REV. 53(1906).
98. Stat. 287 (March 26, 1804); 2 Stat. 332 (March 3, 1805).
99. On the more complex situation in lower Louisiana (by then called the Orleans Territory and soon to be the state of Louisiana), see GEORGE DARGO, JEFFERSON'S LOUISIANA:POLITICS AND THE CLASH OF LEGAL TRADITIONS (1975); Elizabeth Gaspar Brown, Legal Systems in Conflict: Orleans Territory 1804-1812, 1 AM. J. LEG. HIST. 35 (1957); Elizabeth Gaspar Brown, Law and Government in the “Louisiana Purchase”: 1803-1804, 2 WAYNE L. REV. 169 (1956).
100. Stat. 287-89 (March 26, 1804).
101. Letter, Amos Stoddard to William C. C. Claiborne and James Wilkinson, March 26, 1804, at 3-4, Stoddard Collection, Box 1. Claiborne reported the same problem from New Orleans: “The state in which I found the jurisprudence of this country embarrasses me greatly…. To go thro’ the several causes now pending,… would require not only an intimate knowledge of the Spanish language (for to translate the words, would, I am credibly informed, be the work of years), but also an acquaintance with the Spanish laws and habits of practice.” Letter, W. C. C. Claiborne to James Madison, January 2, 1804, 2 LRS 232. On Claiborne, see JOSEPH T. HATFIELD, WILLIAM CLAIBORNE: JEFFERSONIAN CENTURION IN THE AMERICAN SOUTHWEST (1976); Gerard J. Toups, The Provincial, Territorial, and State Administrations of William C. C. Claiborne, Governor of Louisiana, 1803-1816 (University of Southwestern Louisiana Ph.D. dissertation, 1979).
102. Letter, J. B. C. Lucas to unidentified recipient, March 24, 1806, at 2, Lucas Collection, Box 3. On Lucas, see Hugh G. Cleland, John B. C. Lucas, Physiocrat on the Frontier, 36 WESTERN PA. HIST. MAG. 1, 87, 141 (1953).
103. Letter, Amos Stoddard to William C. C. Claiborne, March 26, 1804, at 1, Stoddard Collection, Box 1 (this is a different letter from that quoted in note 122).
104. Letter, J. B. C. Lucas to unidentified recipient, March 24, 1806, at 2, Lucas Collection, Box 3.
105. Letter, William C. Carr to Albert Gallatin, September 6, 1807, at 1, Missouri Register of Land Titles Collection, Box 1. On Carr, see WILLIAM FRANCIS ENGLISH, THE PIONEER LAWYER AND JURIST IN MISSOURI 74-77 (1947); W. V. N. BAY, REMINISCENCES OF THE BENCH AND BAR OF MISSOURI 310-13 (1878).
106. Letter, J. B. C. Lucas to Thomas Jefferson, December 10, 1805, at 4, Lucas Collection, Box 2.
107. Letter, John Coburn to James Madison, August 15, 1807, 2 LRS 358.
108. Letter, J. B. C. Lucas to unidentified recipient, March 24, 1806, at 3, Lucas Collection, Box 3.
109. Letter, J. B. C. Lucas to Thomas Jefferson, December 10, 1805, at 6, Lucas Collection, Box 2. On Wilkinson, see William E. Foley, James A. Wilkinson: Territorial Governor, 25 BULL. MO. HIST. SOC. 3 (1968).
110. Letter, John Coburn to James Madison, August 15, 1807, 2 LRS 358.
111. See Letter, J. B. C. Lucas to Thomas Jefferson, December 10, 1805, Lucas Collection, Box 2; Letter, J. B. C. Lucas to unidentified recipient, March 24, 1806, Lucas Collection, Box 3; see generally WILLIAM E. FOLEY, THE GENESIS OF MISSOURI: FROM WILDERNESS OUTPOST TO STATEHOOD 162-69 (1989).
112. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991).
113. Halvor Gordon Melom, The Economic Development of St. Louis, 1803-1846, at 35 (Univ. of Missouri Ph.D. dissertation, 1947).
114. WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 29-30,59 (1975); GEORGE LEE HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS 120-24,227-30 (1960); George E. Woodbine, Book Review (Records of the Suffolk County Court, 1671-1680), 43 YALE L.J. 1036,103910 (1934); HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 188-90.
115. See JOHN PHILLIP REID, IN DEFIANCE OF THE LAW 42-49 (1981); id., CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY OF RIGHTS 72-73 (1986); id., In Accordance with Usage: The Authority of Custom, the Stamp Act Debate, and the Coming of the American Revolution, 45 FORDHAM L. REV. 335 (1976).
116. See BRUCE H. MANN, NEIGHBORS AND STRANGERS: LAW AND COMMUNITY IN EARLY CONNECTICUT 101-36 (1987); KONIG, LAW AND SOCIETY IN PURITAN MASSACHUSETTS.
117. 108; William C. Jones, An Inquiry Into the History of the Adjudication of Mercantile Disputes in Great Britain and the United States, 25 U. CHI. L. REV. 445 (1958); William C. Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 WASH. U.L.Q. 193.
118. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 28-29, 165-71 (1975); Albert W.Alschuler& Andrew G. Deiss, A Brief History of the ChminalJury in the United States, 61 U. CHI. L. REV. 867, 902-21 (1994).
119. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 322-26 (2d ed. 1985); WILFRED J. RITZ, REWRITING THE HISTORY OF THE JUDICIARY ACT OF 1789 46-51 (1990).
120. See, e.g., ZEPHANIAH SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT (1795); JAMES SULLIVAN, THE HISTORY OF LAND TITLES IN MASSACHUSETTS (1801); ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES (1803). See generally FRIEDMAN at 326-33.
121. NELSON at 165-74; HORWITZ at 141-43.
122. HORWITZ at 145-55.
123. LEGAL PAPERS OF JOHN ADAMS 288 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). Adams's student notes, following Coke, list “Customs reasonable” as the sixth of fifteen sources of the “diverse Laws within the Realm of England,” just after “Statute Laws,” and just before “Jus Belli.” 1 id. 2-3.
124. Watts V. Hasey, Quincy Mass. Rep. 194, 195 (1765).
125. Letter, Thomas Oliver to William C. Carr, July 29, 1805, William C. Carr Collection, Box 1.
126. Letter, John Bowman to John Bowman, May 17, 1810, Ste. Genevieve Collection, Box 1.
127. LAWS OF A PUBLIC AND GENERAL NATURE OF THE DISTRICT OF LOUISIANA, OF THE TERRITORY OF LOUISIANA, OF THE TERRITORY OF MISSOURI, AND OF THE STATE OF MISSOURI, UP TO THE YEAR 1824, ch. 154, at 436 (1842).
128. See generally WILLIAM FRANCIS ENGLISH, THE PIONEER LAWYER AND JURIST IN MISSOURI (1947).
129. WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 (1975); id., DISPUTE AND CONFLICT RESOLUTION IN PLYMOUTH COUNTY, MASSACHUSETTS, 1725-1825 (1981).
130. KONIG, LAW AND SOCIETY IN PURITAN MASSACHUSETTS.
131. MANN, NEIGHBORS AND STRANGERS: LAW AND COMMUNITY IN EARLY CONNECTICUT.
132. An essential resource was JOHN FRANCIS MCDERMOTT, GLOSSARY OF MISSISSIPPI VALLEY FRENCH 1673-1850(1941).