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Illinois in the eighteenth century; a report on the documents in Belleville, Illinois, illustrating the early history of the state online

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977.3



Alvord.

Illinois in the

eighteenth century.




LI B R.AR.Y

OF THE

UNIVERSITY
Of ILLINOIS



IIUN01S HISTORICAL SURVEY




BULLETIN



Illinois State

Historical Library



Volume 1. Number 1.



ILLINOIS IN THE EIGHTEENTH CENTURY

A Report on the Documents in Belleville, Illinois, Illustrating
the Early History of the State



CLARENCE WALWORTH ALVORD,
University of Illinois.



SPRINGFIELD, ILLINOIS



SPRINGFIELD:
ILLINOIS STATE JOURNAL Co., STATE PRINTERS.

1905.






BOARD OF TRUSTEES



ILLINOIS STATE HISTORICAL LIBRARY.



EDMUND J. JAMES, President.

M. H. CHAMBERLIN, Vice President.

GEORGE N. BLACK, Secretary.



MRS. JESSIE PALMER WEBER, Librarian



ILLINOIS IN THE EIGHTEENTH CENTURY:



A REPORT ON THE



Documents in Belleville, 111.,

Illustrating the early history of the State.

BY

CLARENCE WALWORTH ALVORD,



UNIVERSITY OF ILLINOIS.



TO THE TRUSTEES

OF THE

ILLINOIS STATE HISTORICAL LIBRARY.



ILLINOIS IN THE EIGHTEENTH CENTURY: A REPORT ON THE DOCU-
MENTS IN BELLEVILLE ILLUSTRATING THE EARLY
HISTORY OF THE STATE.



When the county of 'Randolph was separated from that of St. Clair
in 1795, the records of the former governments passed into the care
of different jurisdictions and have suffered diverse fates. Those of
legal interest to the new southern county, constituting the largest
part of the official papers of the eighteenth century, remained for a
time at Kaskaskia; and then were removed to Chester, where they
were neglected by the county officials and many thoughtlessly de-
stroyed, so that few documents of this period have reached a more
historically interested generation. 1 Other records were left in the
court house at Cahokia, where they remained until the year 1814,
when they were deposited in the court house at the new county seat,
Belleville. 2 The fate of the Cahokia documents has been more for-
tunate than that which befell the more important records at Kaskas-
kia ; for probably the majority of the papers have been preserved, as
there are in existence records dating from every period of the history
of Illinois during the eighteenth century, with the exception of that
of the English occupation, 1765 to 1778. At the end of this report
will be found a catalog of these early documents in the various offices
of the court house at Belleville.

It seems best to preface this catalog with a brief history of the
institutions and the laws under which these documents originated,
and also to give some account of the men who have written them.
The proposed limits of the report will not include a study of political
events or an analysis of the documents themselves in order to dis-
cover their evidence on the political, legal, and social conditions of the
times. For this reason the documents have been little used, except
in two cases. Such a study must be made, but it will be several
months before it can be completed, and the desirability of an early
report to the trustees of the Historical Library has determined the
limits of this preliminary study.

1. Mason, Illinois in the Eighteenth Century, 49; Perrin, "The oldest Civil Record in the
West", in Transactions of the 111. State Hist. Soc., 1901, p. 64.

2. History of St. Clair County, 183.



A DOCUMENT OF THE FRENCH REGIME.

There is only one document belonging to the French period; it is a
Record of the Registrations of Donations, kept by two successive
clerks of the court in the district of the Illinois during the years L737
to 1769 inclusive. 1

In 1717, the territory of the Illinois was placed under the govern-
ment of the province of Louisiana and on Sept. 20, 1721, the Western
Company divided the province into nire districts, one of which was that
of the Illinois. 2 This extended east and west of the Mississippi be-
tween the lines of the Ohio and the Illinois rivers. The district was
subordinated to the provincial government, and appeal from the de-
cision of the local court might be made to the superior council sitting
at New Orleans. 3 The civil government of the district consisted of a
commandant, a commissaire, a judge, a principal scrivener of the ma-
rine, a king's attorney, a keeper of the royal warehouse, a sealer of
weights and measures, a clerk of the court, huissiers, deputy clerks,
and notaries. Generally several offices were combined. For instance,
in this district the duties of the commissaire, the judge, and the
scrivener were always performed by one man; as were also the duties
of attorney and keeper of the warehouse; and a notary was clerk of
the court. 4 All civil officers were directly responsible to the intend-
ant. 5 The commandant, whose military duties were the more impor-
tant, was under the orders of the governor. Besides these officers of
the district, the commandant of each village may have had some civil
duties. 6

There is a need of a much more careful study of all the sources
than has yet been made, before the rather complicated machinery of
the French colonial government in the Mississippi valley can be un-
derstood. The limitations of this paper, however, require only an
explanation of the duties of the clerk of the court, when he registered
certain kinds of donations. To understand these it will be necessary
to study the legislation of Louis XIV and his successor upon the sub-
ject, since this was the law practiced in the French settlements on the
Mississippi.

Since the Middle Ages the French law has divided private legal
acts into two broad classes. In the first are included all agreements,
acts, and deeds, which individuals make voluntarily, such as contracts,
wills, donations, etc. These, therefore, are called acts of voluntary
jurisdiction. In the second are placed all those acts which require
the intervention of a court. The former class is under the jurisdic-
tion of the notaries, whose engrossed copies have complete validity



1. Registre des Insinuations des Donations aux Siege des Illinois, see Catalog, No. 1; Perrin,
' 'Oldest Civil Record in the West", in Transactions of the 111. State Hist. Soc., 1901, p. 64etseq.

2. French Hist. Collections of La., Ill, 49-59, 101-104; Collet, in Mag. of Western Hist., VIII.
268; Winsor, Narrative and Critical Hist., V., 43.

3. Pittman, Present State of the European Settlements, \1\Yrenc\\, Hist. Collections of Lit., Ill,
101-104; Winsor. Narrati-ce and Critical Hist., V.. 43.

4. French. Hist. Collections, III, 49-59, 101-104; Pittman, Present State of the European Set-
tlements, 53; Edits, Ordonnances Royaux, etc.. I., 581, art. 14, Registre des Insinuations des Dona-

5. The title of this officer varied ;but generally he signed himself, King's Councillor. Com-
missaire General of the Marine, and Intendant. Gayarre History of Louisiana, II, appendix.

6. Breese, Early History of Illinois, 216.



y

without the need of an approval by a civil judge. 1 Provided all for-
malities are complied with, the notarial act is as effective as a judg-
ment of the American court. 2 During the eighteenth century, others
besides the notaries might draw up wills under certain conditions.
This privilege was accorded the testator, the installed parish priest,
and military officers; but whoever may have written them, all acts of
this character were brought finally to the notaries, who were obliged
by law to make and keep minutes of them. 3

In order that they might exercise a needed control over the notarial
acts and to prevent their loss the French kings, beginning with
Francis I, (1539), promulgated laws which made compulsory the
registration of certain classes of acts, among which were donations
and wills. 4 Edict followed edict until the law of deeds, wills, and
donations became so complex that a revision was necessary. Louis
XIV. in his old age undertook the task, which was completed by his
successor. During the first third of the eighteenth century these two
kings issued a series of general laws, 'which regulated the writing,
preservation, and registration of all acts drawn up by notaries.

The first of this series of ordinances was that of December, 1703,
which systematized the law of registration and established a bureau
for that purpose at each of the royal courts. 5 The clerk, who was
charged with the duty of registration, acted as a recorder rather than
as the agent of the court to which he was attached. The number of
acts required to be registered was greatly increased ; but it is sufficient
for our purposes to note that donations and wills were still included.
Several explanations of this edict followed; but the two ordinances
issued in February of 1731 are of special interest, for they governed
the clerk's action in keeping this record of registration in the Illinois.
The first of these has not been printed; the second was a codification
of the previous law of donations inter vivos and abrogated all former
edicts, laws, and coutumes on the subject. Hereafter there were to be
only two forms for the gratuitous disposal of property, namely,
donations inter vivos and testaments or codicils. 6

The donation inter vivos, before it became effective, must be
accepted by the donee in person, or through attorney, or by notarial
act. All such donations, with the single exception of those made by
contract of marriage, were limited to property actually in the pos-
session of the donor. There was another exception made for the same



1. Larousse, Grande Diet. Universel, art. Notaire.

2. Koy, Histoire du Notarial au Canada, I, 262; Brooke, Treatise on the Practice of a Notary
of England, 8.

3. Coutume de Paris, art. 248; Isambert, etc., Recrteil general, XXI, p. 292, arts. 25-37, pp.
386-402; Edits, Ordonnances Royaux, etc., II, 296 (interprets the law in the colonies), I. ,372:
Viollet, Histoire du Droit, Civil Francais, 3d ed., 952-965. Great privileges were granted to
soldiers engaged in war. Wills drawn up by priests in the Mississippi settlements received
the vise of the commandant.

4. Larousse, Grande Diet. Universe!, art. Insinuation; La Grande Encyclopedic, art.
Insinuation; Viollet, Histoire du Droit Civil Francais, 965-971.

5. Isambert, etc.. Recueil general, XX, 438-441; La Grande Encyclopedic, art. Insinuation,
As early as 1690, Louis XIV had issued a declaration on the subject of donations. Isambert,
etc., Recueil general, XX. 113.

6. Isambert. etc., Recueil general, XXI, 343-354. The first ordinance regulated the
method of registration, the fees of the clerk, etc., as may be learned from the Illinois register,
in which reference to the law of February 17, 1731, was frequently made. The second was an
ordinance concerning donations, a partial translation of which is printed in Appendix II.
The present French law has made few changes, if any, in this ordinance. (Compare
Code Civil Fran (ais, Bk., Ill, Tit. 2K On June 25, 1735, an ordinance concerning testaments
was issued. Isambert, etc., Recueil general, XXI, 386-402.



10

contracts: donations to direct heirs contained in them needed no-
registration. This was also true of donations of movables, when
there was actual delivery, and of small sums of money. All others
must be registered on penalty of nullity at the nearest royal court,
from which there was direct appeal to the king.

For this purpose there was kept at each royal court a particular
register, which was numbered and paraphed on every page by the
first officer of the court. 1 No vacant space between the deeds was left
for fear of unauthorized interpolations. At the end of each year this
register was inspected by the same officer and, if found in accordance
with the law, the judge approved it, closed the register with his sig-
nature, and gave it into the keeping of the clerk. In this register
there was copied the entire donation, if it were made by a separate
act; or that part of any act, which contained the donation, so that
reference to the notary's minute to learn the terms of the gift would
not be necessary. Upon demand the clerk was obliged to give access
to the book; and, if requested, to make a copy of the deed for a fixed
fee.

In the register containing the registration of these donations inter
vivos, the clerk in the district of the Illinois has also kept a record of
testaments and codicils. That these must be registered has been al-
ready stated; but I have been unable to find any law permitting or
ordering the registration of wills in the particular record reserved by
the Ordinance of 1731 for donations infer vivos. 2 Since wills, how-
ever are only a particular kind of donation, it is probable that the
clerk was following a universal custom.

Such was the French law regulating the registration of donations
and of wills or codicils, and the clerk in the district of the Illinois
observed this law with as much care as if he were attached to the
court of the provost of Paris, at least during the earlier years. The
leaves of the book were all numbered and paraphed by the judge of
the district; the formulae of the registration were carefully observed;
the deeds were written so that the pages were filled, even crowded.
In one instance the clerk it was the later one who was less care-
ful missed an eighth of a page and across this space he has drawn a
line and written, "passed by mistake." The acts registered may be
thus classified: 1. Simple acts of mutual donation of real and personal
property, both present and to be acquired, made by contract of mar-
riage, so that in case of the death of one, the survivor would have all
the property possessed by both. These donations were to be null
and void in case of the birth of a child. 2. Acts of donation by one
party to the other in the contract of marriage. 8. Acts of donation
by a third party to one or both of the contracting parties in a con-
tract of marriage. 4. Acts of mutual donation mortis causa? 5.
Simple acts of donation by one party to another. 6. Acts of donation



1. Isambert, etc., Rec-ueil general, XXI, 345-349. A paraph was a flourish of the pen
under the signature, the number of the page, or words inserted on the margin. It was used
to prevent falsification.

2. Ibid., XX., 438-441, XXI, 401, art. 79; Larouse Grande Dicf Univ., art. Enregistments
La Grande Encyc., art.. Insinuation.

3. These were forbidden, but may have been permitted to soldiers. Isambert, etc.,
Recueil general, XXI, 393, art., 27.



11

in return for which the donee promised some compensation. These
were generally made by aged persons in return for the promise of
support. 7. Solemn wills and testaments. 8. Codicils. 9. Formal
renunciation of the "community of property" by the wife. 1 The prop-
erty, which is thus disposed of, included real estate, mortgages, notes
of all kinds, state bonds, money, household and personal property,
and slaves.

In the largest number of cases these acts were drawn up by a no-
tary, generally by the notary who, as clerk of the court, registered
them and received three livres for so doing. There are, however, a
number of contracts of marriage and of wills, which were written by
priests, or by the military commandant of one of the settlements, or
by an officer in the army, and some wills written by the testator.

Usually the party interested in the deed brought it to the bureau
of the court to have it registered, in which case the following formula
was used by the clerk: "Today, the seventh day of April, 1752,
there has appeared at the bureau of this jurisdiction before the clerk
whose signature is below, Mr. Jean Baptiste Gouier called Cham-
pagne, inhabitant of St. Philippe, dwelling in the parish of Ste. Anne,
with a .copy of his contract of marriage with Miss Marie Joseph
Lacroix, passed before the late Mr. Jerome Rousillet, notary, on the
date, February 14, 17ob." Sometimes the clerk was commissioned to
make the registration, in which case he wrote after dating: "We,
Bertlor Barrios, clerk at the Illinois, by virtue of the commission of
Francois Lacroix to register, etc." The invariable formula at the
close is this: "And after having read the said contract of marriage
in our bureau, we have inscribed the said donation on the Record of
the Registrations of this court in accordance with the ordinance for
their preservation and validation, by reason ' of which, etc. Done in
our bureau the day and year above written." Then followed the sig-
nature of the clerk with a paraph.

The time intervening between the redaction of an act and its regis-
tration varied considerably. Generally only a few days were allowed
to pass before the parties appeared in the court to fulfill the require-
ments of the law. As a rule the bridegroom brought the contract of
marriage, but not always; and in the case of wills the executor, after
the death of the testator. At times, years elapsed before this final
act of registration, as in the case of a contract of marriage dated
February 17, 1726, and registered August 2, 1741. In this case the
donation was made before the promulgation of the Ordinance of 1731,
but it will be remembered that this ordinance did not change the
existing law on the registration of donations. There were cases
when a doubt arose whether an act had been registered and the party
interested requested the clerk to search the record and, if necessary,
to fulfill the requirements of the law. Thus, on October 25, 1741,
Francois Lacroix requested the clerk to look up his contract of



1. Viollet, Histoire du Droit, Civil Francais , 3d ed., 826-848.



LIBRARY

UNIVERSITY Of ILUNOlb



/



marriage, which had been drawn up November 8, 1739, by M. Jerome,
deceased. Since it had not been registered, the clerk recorded the fact
and corrected the omission.

The first entry in the book was made on January 15, 1737, by Jean
Baptiste Bertlor Barrois. 1 This was not the only book under his
charge; for the French law required the memoranda of all acts of the
court to be carefully and systematically kept. As royal notary, he
was obliged to make and preserve his minutes and copy his engross-
ments; 2 as clerk of the court, he had four distinct registers; 3 as clerk
of the marine, he was obliged to keep records in seven registers ; 4 and
as clerk of registration, he must have had a book for the registration
of other acts than donations. It is doubtful whether the entries in
any one of them were numerous, since his registrations of donations
averaged only four a year. The entries are in various handwritings,
so that probably he had the assistance of several deputy clerks in the
bureau.

Barrois lived at Kaskaskia until December of 1754. He called him-
self clerk of the court and named this register the Record of the Reg-
istrations of Donations at the Court of the Illinois . Yet writers on
Illinois history have generally regarded Fort Chartres as the seat of
both civil and military government and, by inference, the place where
the court of justice always held its sessions. 5 In favor of this view is
Pittman's statement that the fort was the seat of government and that
the commissaire's house was situated there; 6 the burial of the judge,
Delaloire Flancour, in 1746 at the same place; the statement of Bar-
rois that on October 25. 1741, he was requested to search the register of
the late M. Jerome of Fort Chartres, whom he called both notary and
clerk, for a donation in a contract of marriage, which Jerome had
been expected to register. 7 Since this contract of marriage was drawn
up by Jerome on November 8, 1739, he must have been acting as notary
and clerk of the court at Fort Chartres two years after Barrois had be-
gun his register of donations in Kaskaskia. From these facts it may
be inferred that between January 15,1737 and November 9,1739, the
judge held sessions of the court at both places, unless Barrois was acting
as deputy of Jerome at Kaskaskia. It is not probable, however, that
Barrois was deputy clerk of registrations, since there was no provision
for such an officer in the ordinances.

But was the court at Fort Chartres continued after 1739? Pittman's
testimony is only of value for the later period of the French occupa-
tion, and it is certain that the judge sat at Fort Chartres after De-
cember, 1754; for during that month Barrois left Kaskaskia, where he
had continued to register acts of donation, to take up his residence at



1. The names Jean Baptiste were obtained from a contract of marriage, drawn up by Barrois
in 1757, in which he appeared for the bride, his daughter Celeste. Manuscript in the Missouri
Hist. Society's Collection. In the register he called himself Bertlor Barrois. See also
American State Papers, Public Lands, II. 217.

2. Edits, Oidonnances Royaux, etc . I, 217.

3. At least such was the case in Montreal. Ibid., II, 386.

4. Tsambert. etc., Recueil general, XIX., 289.

5. Mason, Illinois in the Eighteenth Century, (Old Fort Chartres), 23 et seq.; Moses, Illinois
Historical and Statistical, 1, 98.

6. Pittman, The Piesent State of the European Settlements. 45.

7. De faire recherche dans les registres de feu M. Jerome rivant Greffier aux dites Illinois resi-
dent an fort de Chartres. From the Registre des Insinuations des Donations, Oct. 25,1741; see also
the Appendix III, Jerome Rousillet; Mason, Illinois in the Eighteenth Century, 32.



13

Fort Chartres, as is proved by the record. Also from the few quota-
tions from the sessions of the court made by Judge Breese we know
the court was in session in 1756 at the same place. 1 Therefore the
question concerns only the years 1739 to 1754. During this period
the fort was badly in need of repair and permanent abandonment of it
was contemplated. 2 So dangerous did the situation become in 1748
that the commandant temporarily withdrew his troops from it and
concentrated his forces at Kaskaskia. 3 The quotations of Judge
Breese from the record of the court prove it to have been in session
in that settlement in 1749 and 1752. 4 Furthermore, on Oct. 25, 1741,
the register of the clerk Jerome was in the hands of the clerk Barrois
at Kaskaskia. which would not have been the case had a successor to
Jerome been appointed at Fort Chartres. 5 The natural inference from
these facts is that the civil government was moved from Fort Chartres
to Kaskaskia sometime after 1739 and before Oct. 25, 1741. Still the
evidence is not conclusive, for during the years 1737 to 1739 the judge
probably held court at both places, and it is possible that this con-
tinued to be the case. 6

The rebuilding of Fort Chartres was completed in the year 1754,
and during December of the same year Barrois began to date his reg-
istrations at Nouvelle Chartres, which he continued to do up to the
year 1757." The first registry of his successor, Labuxiere, dated
March 14, 1757, was an act drawn up by the notary Barrois on March
10, 1757. This is the last official act by him which is recorded in the
Registre, so it is probable that he died between that date and March
14. If that was the case, it is strange that Labuxiere never used the
phrase, the late M. Barrois; but it is possible that he was as unfamil-
iar with the correct phraseology as he proved himself to be with other
particulars.

There is very little to be learned from the register about Bertlor
Barrois, since there is no act recorded in which he was personally in-
terested. From the contract of marriage of his daughter, Celeste
Therese, in the collection of the Missouri Historical Society, we learn
that he was at that time, Jan. 8, 1757, a widower, his wife's name
having been Magdalen' Cardinal. The church register at Kaskaskia
contains the record of baptism of their son, Louis, in ] 732. 8 In the
year 1756. Magdalen Barrois, widow of Louis Marin, registered her
contract of marriage. Possibly she was another daughter if her name
is any evidence. When the United States government sent commis-
sioners to these Mississippi settlements to examine the land titles,
there were several heirs of Barrois living in the Illinois district. 9
From the same source comes information of an earlier date which



1. Breese, Early History of Illinois, 214-220.

2. Mason. Illinois in the Eighteenth Century (Old Fort Chartres), 32.

3. Doc. re 1. to the Col. Hist, of the State of N. Y.. X, 143.

4. Breese, Early History of Illinois, 217 et seq.

5. Registre des Insinuations des Donations, October 25.1741 ; see above.

6. The only objection is that the registers of the clerk Jerome were sent to Kaskaskia.
There mipht have been some other reason for this than the one proposed in the text.

7. Ma*on, Illinois in the Eighteenth Century (Old Fort Chartres), 34; Moses, Illinois Histor-
ical and Statistical, I. 114.

8. "Kaskaskia Church Records," in Transactions of the 111. State Hist. Soc., 1904, p. 399.


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