Part 3
That General Braddock and the American Governors, were _not_ singular in their opinion, as to the right of the Six Nations to the land _over_ the Allegany mountains, and on both sides of the river Ohio, quite to the Mississippi,--is evident, from the memorials which passed between the British and French Courts in 1755.
In a memorial delivered by the King's Ministers on the 7th June 1755, to the Duke Mirepoix, relative to the pretensions of France to the above-mentioned lands, they very justly observed--"As to the exposition, which is made in the French memorial of the 15th article of the treaty of Utrecht, the Court of Great Britain does not think it can have any foundation, either by the words or the intention of this treaty.
1st, "The Court of Great Britain cannot allow of this article, relating only to the persons of the Savages, and _not their country_: The words of this treaty are clear and precise, that is to say, the Five _Nations_ or Cantons, are subject to the dominion of Great Britain,--which, by the received exposition of all treaties, must relate to the _country_, as well to the persons of the inhabitants;--it is what France has acknowledged in the most solemn manner;--She has well weighed the importance of this acknowledgement, at the time of signing this treaty, and Great Britain can never give it up. The countries possessed by these Indians, _are very well known, and are not at all so undetermined_, as it is pretended in the memorial: they _possess_ and _make them over, as other proprietors do, in all other places_."
5th, "Whatever pretext might be alledged by France, in considering these countries as the appurtenances of Canada; _it is a certain truth, that they have belonged, and_ (as they have not been given up, _or made over_ to the English) _belong still to the same Indian nations_; which, by the 15th article of the treaty of Utrecht, France agreed not to molest,--Nullo in posterum impedimento, aut molestia afficiant."
"Notwithstanding all that has been advanced in this article, the Court of Great Britain _cannot_ agree to France having the least title to the river Ohio, and the _territory in question_." [_N.B._ This was all the country, from the Allegany mountains to the Ohio, and down the same, and on both sides thereof to the river Mississippi.]
"Even that of possession is not, nor can it be alledged on this occasion; since France cannot pretend to have had any such before the treaty of Aix-la-Chapelle, nor since, unless it be that of certain _forts_, unjustly erected lately _on the lands which evidently, belong to the Five Nations_, or which these have made over to the Crown of Great Britain or its subjects, as may be proved by treaties and acts of the greatest authority.--_What_ the Court of Great Britain _maintained, and what it insists upon_, is, _That the Five Nations of the Iroquois, acknowledged_ by France, _are_, by origin, or _by right of conquest_ the _lawful proprietors of the river Ohio, and the territory in question_: And as to the territory, which has been _yielded and made over by these people_ to Great Britain (which cannot but be owned must be the most just and lawful manner of making an acquisition of this sort) she reclaims it, as belonging to her, having continued cultivating it for above 20 years past, and having made settlements in several parts of it, from the sources even of the Ohio to Pichawillanes, in the center of the territory between the Ohio and the Wabache."
In 1755, the Lords Commissioners for Trade and Plantations were so solicitous to ascertain the territory of the Six Nations, that Dr. Mitchel, by their desire, published a large map of North America; and Mr. Pownal, the present Secretary of the Board of Trade, _then_ certified, as appears on the map,--That the Doctor was furnished with documents for the purpose from that Board.--In this map Dr. Mitchel observes, "That the Six Nations have extended their territories, ever since the year 1672, _when they subdued and were incorporated with the antient Shawanesse, the native proprietors of these countries, and the river Ohio_: Besides which, they likewise claim a right of conquest over the Illinois, and all the Mississippi, as far as they extend. This," he adds, "is confirmed by their own claims and possessions in 1742, which include all the bounds here laid down, and none have ever thought fit to dispute them." And, in confirmation of this right of the Six Nations to the country on the Ohio, as mentioned by the King's Ministers, in their memorial to the Duke of Mirepoix in 1755, we would just remark, that the Six Nations, Shawanesse and Delawares, were in the _actual occupation_ of the lands _Southward_ of the Great Kenhawa for some time after the French had encroached up on the river Ohio; and that in the year 1752, these tribes had a large town on Kentucke River,--238 miles below the _Sioto_:--That in the year 1754, they resided and hunted on the _Southerly_ side of the river Ohio, in the _Low Country_, at about 320 miles _below_ the Great Kenhawa;--and in the year 1755, they had also a large town opposite to the mouth of Sioto;--_at the very place_, which is the _Southern boundary_ line of the tract of land applied for by Mr. Walpole and his associates.--But it is a certain fact, that the Cherokees _never_ had any towns or settlements in the country, _Southward_ of the Great Kenhawa;--that they do _not_ hunt there, and that neither the Six Nations, Shawanesse nor Delawares, do _now_ reside or hunt on the Southerly side of the river Ohio, nor did _not_ for several years _before_ they sold the country to the King.--These are facts, which can be easily and fully proved.
In October 1768, at a congress held with the Six Nations at Fort Stanwix, they observed to Sir William Johnson: "Now, brother, you who know all our affairs, must be sensible, that _our_ rights go much farther to the _Southward_ than the _Kenhawa_,--and that we have a very good and clear title as far _South_ as the _Cherokee River_, which we cannot allow to be the right of any other Indians, without doing wrong to our posterity, and acting unworthy those warriors who fought and conquered it;--we therefore expect this our right will be considered."
In November 1768, the Six Nations sold to the King all the country on the Southerly side of the river Ohio, as far as to the Cherokee river; but notwithstanding that sale, as soon as it was understood in Virginia, that government _favoured_ the pretensions of the Cherokees, and that Dr. Walker and Colonel Lewis (the commissioners sent from that colony to the congress at Fort Stanwix) had returned from thence, the late Lord Bottetourt sent these gentlemen to Charles-town, South-Carolina, to endeavour to convince Mr. Stuart, the Southern superintendent of Indian affairs, of the necessity of enlarging the boundary line, which he had settled with the Cherokees;--and to run it from the _Great Kenhawa_ to Holston's river.--These gentlemen were appointed commissioners by his Lordship, as they had been long conversant in Indian affairs, and were well acquainted with the actual extent of the Cherokee country.--Whilst these commissioners were in South Carolina, they wrote a letter to Mr. Stuart, as he had been but a very few years in the Indian service, (and could not, from the nature of his former employment, be supposed to be properly informed about the Cherokee territory), respecting the claims of the Cherokees to the lands _Southward_ of the Great Kenhawa, and therein they expressed themselves as follows:
"Charles-town, South Carolina, February 2, 1769.
"The country _Southward_ of _the Big Kenhawa was never claimed by the Cherokees_, and now is the property of the Crown, as Sir William Johnson purchased it of the Six Nations at a very considerable expence, and took a deed of cession from them at Fort Stanwix."
In 1769, the house of burgesses of the colony of Virginia represented to Lord Bottetourt, "That they have the greatest reason to fear the said line," (meaning the boundary line, which the Lords Commissioners for Trade and Plantations have referred to, in the map annexed to their Lordships report) "if confirmed, would constantly open to the Indians, and others _enemies_ to his Majesty, a free and easy ingress to the heart of the country on the Ohio, Holston's river, and the Great Kenhawa; whereby the settlements which may be attempted in these quarters will, in all probability, be utterly destroyed, and _that great extent of country_ [at least 800 miles in length] _from the mouth of the Kenhawa_ to the _mouth of the Cherokee river_ extending Eastward as far as the Laurell Hill, _so lately ceded to his Majesty, to which no tribe of Indians at present set up any pretensions, will be entirely abandoned to the Cherokees_; in consequence of which, claims, _totally destructive_ of the true interest of his Majesty, may at some future time arise, _and acquisitions justly ranked among the most valuable of the late war be altogether lost_."
From the foregoing detail of facts, it is obvious,
1st. That the country _Southward_ of the _Great Kenhawa_, at least as far as the Cherokee river, originally belonged to the Shawanesse.
2d. That the Six Nations, in virtue of their conquest of the Shawanesse, became the lawful proprietors of that country.
3d. That the King, in consequence of the grant from the Six Nations, made to his Majesty at Fort Stanwix in 1768, is _now_ vested with the undoubted right and property thereof. 4th. That the Cherokees _never_ resided, nor hunted in that country, and have _not_ any kind of right to it.
5th. That the House of Burgesses of the colony of Virginia have, upon good grounds, asserted, [such as properly arise from the nature of their stations, and proximity to the Cherokee country], that the Cherokees had not any just pretensions to the territory _Southward_ of the Great Kenhawa.
And lastly, That neither the Six Nations, the Shawanesse nor Delawares, do _now_ reside, or hunt in that country.
From these considerations, it is evident no possible injury can arise to his Majesty's Service,--to the Six Nations and their confederacy,--or to the Cherokees, by permitting us to settle the _whole_ of the lands comprehended within our contract with the Lords Commissioners of the Treasury:--If, however, there has been any treaty held with the Six Nations, _since_ the cession made to his Majesty at Fort Stanwix, whereby the faith of the crown is pledged, both to the Six Nations and the Cherokees, that no settlements should be made beyond the line, marked on their Lordships report; we say, if such agreement has been made by the orders of government with these tribes, (not withstanding, as the Lords Commissioners have acknowledged, "_the Six Nations had ceded the property in the lands to his Majesty_)"--We flatter ourselves, that the objection of their Lordships in the second paragraph of their Report, will be entirely obviated, by a specific clause being inserted in the King's grant to us, _expressly prohibiting us from settling any part of the same_, until such time as we shall have _first_ obtained his Majesty's allowance, and the full consent of the Cherokees, and the Six Nations and their confederates, for that purpose.
III. In regard to the third paragraph of their Lordships Report, that it was the _principle_ of the board of trade, _after_ the treaty of Paris, "to _confine_ the western extent of settlements to such a distance from the sea-coast, as that these settlements should lie within the _reach_ of the trade and commerce of this kingdom," _&c._ we shall not presume to controvert;--but it may be observed, that the settlement of the country _over_ the Allegany mountains, and on the Ohio, was _not_ understood, either _before_ the treaty of Paris, nor intended to be so considered by his Majesty's proclamation of October 1763, "as _without the reach of the trade and commerce of this kingdom_," &c.;--for, in the year 1748, Mr. John Hanbury, and a number of other gentlemen, petitioned the King for a grant of 500,000 acres of land _over_ the Allegany mountains, and on the river Ohio and its branches; and the Lords Commissioners for Trade and Plantations were _then_ pleased to _report_ to the Lords committee of his Majesty's most honourable privy council, "_That the settlement of the country, lying to the westward of the great mountains_, as it was the center of the British dominions, _would be for his Majesty's interest, and the advantage and security of Virginia and the neighbouring colonies_."
And on the 23d of February 1748-9, the Lords Commissioners for Trade and Plantations _again reported_ to the Lords of the committee of the privy council, that they had "fully _set forth the great utility and advantage of extending our settlements beyond the great mountains_ ("which _Report has been approved of by your Lordships_").--And as, by these _new_ proposals, there is _a great probability of having a much larger tract of the said country settled than under the former, we are of opinion, that it will be greatly for his Majesty's service_, and the _welfare and security of Virginia, to comply with the prayer of the petition_."
And on the 16th of March 1748-9, an _instruction_ was sent to the Governor of Virginia to grant 500,000 acres of land _over the Allegany mountains_ to the aforesaid Mr. Hanbury and his partners (who are now _part_ of the company of Mr. Walpole and his associates); and that instruction sets forth, That "_such settlements will be for our interest_, and the _advantage and security of our said colony, as well as the advantage of the neighbouring ones_;--inasmuch as our loving subjects _will be thereby enabled to cultivate a friendship, and carry on a more extensive commerce_ with the nations of Indians inhabiting those parts; _and such examples may likewise induce the neighbouring colonies to turn their thoughts towards designs of the same nature_."--Hence we apprehend, it is evident, that a former board of trade, at which Lord Halifax presided, was of opinion, that settlements _over_ the Allegany mountains were not against the King's interest, _nor_ at such a distance from the sea-coast, as to _be without_ "the _reach_ of the trade and commerce of this kingdom," nor _where_ its authority or jurisdiction could not be exercised.--But the _Report_ under consideration suggests, that two capital objects of the proclamation of 1763 were, _to confine_ future settlements to the "sources of the rivers which fall into the sea from the West and North-West," (or, in other Words, to the _Eastern side of the Allegany mountains_) and to the three new governments of Canada, East Florida, and West Florida;--and to establish this fact, the Lords Commissioners for Trade and Plantations recite a part of that proclamation.
But if the _whole_ of this proclamation is considered, it will be found to contain the nine following heads; viz.[1]
[1] Vide the Proclamation in the Appendix, No. 1.
1st, To declare to his Majesty's subjects, that he had erected four distinct and separate governments in America; viz. Quebec, East Florida, West Florida, and Grenada.
2d, To ascertain the respective boundaries of these four new governments.
3d, To testify the royal sense and approbation of the conduct and bravery, both of the officers and soldiers of the King's army, and of the reduced officers of the navy, who had served in North America, and to reward them, by grants of lands in Quebec, and in East and West Florida, without fee or reward.
4th, To hinder the governors of Quebec, East Florida and West Florida, from granting warrants of survey, or passing patents for lands, _beyond_ the bounds of their respective governments.
5th, To forbid the governors of any other colonies or plantations in America, from granting warrants or passing patents for lands, _beyond_ the heads or sources of any of the rivers, which fall into the Atlantic Ocean from the west or north-west, or upon any lands whatever, "_which, not having been_ CEDED _to or purchased by the King_, are reserved to the said Indians, or any of them."
6th, To reserve, "_for the present_," under the King's sovereignty, protection, and dominion, _for the use of the said Indians_, all the lands _not_ included within the limits of the said three new governments, or within the limits of the Hudson's Bay company; as also, all the lands lying to the westward of the sources of the rivers, which fall into the sea from the west and north-west, and forbidding the King's subjects, from making any purchases of settlements whatever, or taking possession of the lands _so reserved_, without his Majesty's leave and licence first obtained.
7th, To require all persons, who had made settlements on lands, _not_ purchased by the King from the Indians, to remove from such settlements.
8th, To regulate the future purchases of lands from the Indians, within such parts as his Majesty, by that proclamation, permitted settlements to be made.
9th, To declare, that the trade with the Indians should be free and open to all his Majesty's subjects, and to prescribe the manner how it shall be carried on.
And lastly, To require all military officers, and the superintendants of Indian affairs, to seize and apprehend all persons who stood charged with treasons, murders, &c. and who had fled from justice, and taken refuge in the reserved lands of the Indians, to send such persons to the colony, _where_ they stood accused.
From this proclamation, therefore, it is obvious, that the sole design of it, independent of the establishment of the three new governments, ascertaining their respective boundaries, rewarding the officers and soldiers, and regulating the Indian trade, and apprehending felons, was to _convince_ the Indians "of his Majesty's justice and determined resolution to remove all reasonable cause of discontent," by interdicting all settlements on land, not _ceded to or purchased by his Majesty_; and declaring it to be, as we have already mentioned, his royal will and pleasure, "for _the present, to reserve_, under his sovereignty, protection, and dominion, _for the use of the Indians_, all the lands and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west."--Can any words express more decisively the royal intention?--Do they not explicitly mention, That the territory is, _at present_, reserved under his Majesty's protection, _for the use of the Indians_?--And as the Indians had _no use_ for those lands, which are bounded _westerly_ by the _south-east side_ of the river Ohio, either for residence or hunting, they were willing to sell them; and accordingly did sell them to the King in November 1768, (the occasion of which sale will be fully explained in our observations on the succeeding paragraphs of the _Report_).--Of course, the proclamation, so far as it regarded the settlement of the lands included within that purchase, has absolutely and undoubtedly ceased.--The late Mr. Grenville, who was, at the time of issuing this proclamation, the minister of this kingdom, always admitted, that the design of it was totally accomplished, _so soon as the country was purchased of the natives_.
IV. In this paragraph, the Lords Commissioners for Trade and Plantations mention two reasons for his Majesty's entering into engagements with the Indians, for fixing a _more precise and determinate boundary line_, than was settled by the proclamation of October 1763, viz.
1st, Partly for want of _precision_ in the one intended to be marked by the proclamation of 1763.
2d, And partly from a consideration of justice in regard to _legal titles to lands_.
We have, we presume, fully proved, in our observations on the third paragraph,--That the design of the proclamation, so far as it related to lands _westward_ of the Allegany mountains, was for no other purpose than to _reserve_ them, under his Majesty's protection, for _the present, for the use of the Indians_; to which we shall only add, That the line established by the proclamation, so far as it concerned the lands in question, could _not_ possibly be fixed and described with more _precision_, than the proclamation itself describes it; for it declares,--That "all the lands and territories lying to the westward of the sources of the rivers, _which fall into the sea from the west and north-west_," should be reserved under his Majesty's protection.
Neither, in our opinion, was his Majesty induced to enter into engagements with the Indians for fixing a more _precise_ and determinate boundary "_partly from a consideration of justice, in regard to legal titles to lands_,"--for there were _none_ such (as we shall prove) comprehended within the tract _now_ under consideration.
But for a full comprehension of ALL the reasons for his Majesty's "entering into engagements with the Indians, for fixing a more precise and determinate boundary line," than was settled by the royal proclamation of Oct. 1763, we shall take the liberty of stating the following facts:--In the year 1764, the King's ministers had it _then_ in contemplation, to obtain an act of parliament for the proper regulation of the Indian commerce; and providing a fund, (by laying a duty on the trade) for the support of superintendants, commissaries, interpreters, &c. at particular forts in the Indian country, _where_ the trade was to be carried on:--And as a part of this system, it was thought proper, in order to avoid future complaints from the Indians, on account of encroachments on their hunting grounds, to purchase a large tract of territory from them, and establish, with their consent, a respectable _boundary line_, beyond which his Majesty's subjects should _not_ be permitted to settle.
In consequence of this system, orders were transmitted to Sir William Johnson, in the year 1764, to call together the Six Nations,--lay this proposition of the _boundary_ before them, and take their opinion upon it.--This, we apprehend, will appear evident from the following speech, made by Sir William to the Six Nations, at a conference which he held with them, at Johnson Hall, May the 2d, 1765.
BRETHREN,