STATUS OF THE ILLINOIS COUNTRY IN THE EMPIRE.
Before entering upon the more detailed study of events in the Illinois
country during the period of the British occupation, it is necessary
to take into consideration certain general aspects of the subject
which will enable us to understand more clearly the bearing of those
events. The relation of that country to the empire and the view held
by British statesmen of the time relative to its status are problems
which naturally arise and demand solution. What was the nature of the
government imposed upon the French in Illinois after its occupation? Is
the hitherto prevailing opinion that the British government placed the
inhabitants of those villages under a military government any longer
tenable? Was the government de jure or de facto?
The treatment received by the settlements in the Northwest and West
in general was fundamentally different in nature from that accorded
other portions of the new empire. By the terms of the Proclamation
of 1763,[87] civil governments were created for the provinces of
Quebec, East Florida, West Florida, and Grenada, while all the western
territory outside the prescribed limits of those colonies, including
a large portion of southern Canada of today, was reserved as a vast
hunting ground for the Indian nations. No mention whatsoever is made
in the Proclamation concerning the settled portions of the West and
since it is, therefore, impossible to ascertain in this document their
governmental status, we will examine the official correspondence of the
ministry which immediately proceeded the issuance of the Proclamation
to find, if possible, what the directors of the British colonial policy
had in mind.
When the question of the Proclamation was under discussion by the
Ministry in the summer of 1763, two opposing views with reference
to the West were for a time apparent in the ministry. It appears to
have been the policy of Lord Egremont, at that time Secretary for the
Southern Department, which included the management of the colonies, to
place the unorganized territory within the jurisdiction of some one of
the colonies possessing a settled government, preferably Canada.[88]
It was at least his aim to give to the Indian country sufficient
civil supervision so that criminals and fugitives from justice from
the colonies might be taken. That he did not intend to extend civil
government to the villages or any of the French inhabitants of the
West seems clear: his only reference is to the "Indian country" and to
"criminals" and "fugitives from justice."
Lord Shelburne, President of the Board of Trade and a member of the
Grenville ministry, and his colleagues were of the opinion that the
annexation of the West to Canada might lend color to the idea that
England's title to the West came from the French cession, when in
fact her claim was derived from other sources; that the inhabitants
of the province to which it might be annexed would have too
great an advantage in the Indian trade; and finally that such an
immense province could not be properly governed without a large
number of troops and the governor would thus virtually become a
commander-in-chief.[89] Shelburne then announced his plan of giving
to the commanding general of the British army in America jurisdiction
over the West for the purpose of protecting the Indians and the fur
trade.[90] Lord Halifax, who succeeded to Egermont's position at the
latter's death in August, 1763, fell in with Shelburne's views. But
the commission to the commanding general does not appear to have been
issued; for Hillsborough, who succeeded Shelburne as President of the
Board of Trade in the autumn of 1763, favored a different policy. There
is nothing, however, to indicate that Shelburne and his advisers had
any thought of the government of the French colonies. There is no hint
in any of this correspondence that the ministry had any idea of the
existence of the several thousand French inhabitants of the West.[91]
There remain one or two documents in which we might expect to find some
reference to the government of the French settlers. The authors of that
part of the Proclamation of 1763 which provided for the reservation
of the Indian lands and the regulation of the trade,[92] had in
contemplation the formation of an elaborate plan comprehending the
management of both in the whole of British North America.[93] It was
left to Hillsborough, Shelburne's successor as President of the Board
of Trade, to direct the formulation of the plan, which was finished
in 1764. The details of this program will be taken up in a later
chapter,[94] and it will therefore suffice to note the presence or
absence of any provisions for the French. The chief object of the plan
seems to have been to bring about a centralization in the regulation
of the trade and the management of the Indians, and in no place is
there any intimation that its provisions have any application to the
government of the French residing at the various posts.[95]
Turning to another source we find a document addressed directly to the
inhabitants of the Illinois country, dated in New York, December 30,
1764 and signed by General Thomas Gage.[96] Mention has already been
made in another connection of the unsuccessful mission of Lieutenant
Fraser to Illinois in the spring of 1765, when he carried this
proclamation to the inhabitants. But its contents were not announced
until the entry of Captain Sterling in October of that year. This
proclamation related solely to guarantees by the British government
of the right of the inhabitants under the treaty of Paris: freedom of
religion, the liberty of removing from or remaining within English
territory and the requirements as to taking the oath of allegiance made
up its contents. As to whether the inhabitants were to enjoy a civil
government or be ruled by the army there is no intimation.
Laying aside the barren papers of 1763-1765 and giving attention to the
documentary material after those dates proves much more productive.
We are thereby enabled to arrive at some pretty definite conclusions.
Fortunately there were a few men in authority during that period who
had some interest in the interior settlements, and who, from their
official positions realized the difficulties of the problem. Such
men have left expressions of opinion and stray bits of information
which leave us in little doubt as to the governmental status of the
Illinois country. General Thomas Gage, Sir William Johnson, and Lord
Hillsborough are perhaps the most representative examples. Gage, who
was commander-in-chief of the American army throughout this period,
with headquarters in New York City, was in direct communication both
with his subordinates in Illinois and the home authorities. He was in
a position to know, in general, the state of affairs in the West
as well as to keep in touch with ministerial opinion. Sir William
Johnson, by virtue of his office as Superintendent of Indian affairs
for the northern district, was in a peculiarly strategic position
to acquire information. His Indian agents were stationed at all the
western posts and he was in constant correspondence with the Board of
Trade relative to Indian and trade conditions. From the ministry itself
the correspondence of Lord Hillsborough best reflects the prevailing
opinion of the government. He was one of the few governmental
authorities who took any considerable interest in the western problem
and information coming from him must, therefore, have some weight.
That the British commandant of the fort in the Illinois country had no
commission to govern the inhabitants, except perhaps that power, which,
in the absence of all other authority, naturally devolves upon the
military officer, seems amply clear from a recommendation transmitted
by General Gage to his superior shortly after the occupation of Fort
de Chartres. "If I may presume to give my opinion further on this
matter, I would humbly propose that a Military Governor should be
appointed for the Ilinois (sic) as soon as possible. The distance of
that Country from any of the Provinces being about 1400 Miles, making
its Dependance upon any of them impractical, and for its Vicinity to
the French Settlements, no other than a Military Government would
answer our purpose."[97] In the following year he took a similar point
of view in a communication to his co-laborer in America: "I am quite
sensible of the irregular behavior of the Traders and have intimated to
his Majesty's Secretary of State what I told the Board of Trade four
or five years ago: That they must be restrained by Law, and a Judicial
Power invested in the officer Commanding at the Posts to see such Law
put in force. And without this, Regulations may be made, but they will
never be observed."[98]
With the condition of comparative anarchy in the Illinois country
during this period and indeed at all the western posts and throughout
the Indian country the authorities seemed unable to combat
successfully. Had all the regulations outlined in the plan for the
management of Indian affairs,[99] been put into operation the Indian
department would have been able to cope more successfully with that
phase of the situation. But neither military nor Indian departments had
legal authority to take any action whatsoever. As Johnson, in speaking
of his inability to handle the situation for lack of sufficient power,
declared in 1767 that "the authority of commissaries is nothing, and
both the Commanding Officers of Garrisons and they, are liable to
a civil prosecution for detaining a Trader on any pretence."[100]
Probably more emphatic still the commanding general four years later
in writing of the disturbances, said: "And I perceive there has been
wanting judicial powers to try and determine. There has been no way
to bring Controversys & Disputes properly to a determination or
delinquenents to punishment."[101]
There is probably some justification for the current belief that the
government placed the inhabitants under a military rule, inasmuch as
the actual government proved in the last analysis to be military.
But that the British ministry consciously attached the interior
settlements to the military department is far from the truth. Such a
system was probably contemplated by no one, particularly between the
years 1763 and 1765 when the re-organization of the new acquisitions
was under discussion. The greater part of the new territory was the
seat of the fur trade and the desire for the development of that
industry controlled in the main the policy of the ministry relative
to the disposition of the peltry districts and the interests of the
settlements were completely ignored. Secretary Hillsborough, who
helped formulate the western policy in 1763 and 1764 doubtless gave
the most adequate explanation when in 1769, he wrote: "With regard to
the Posts in the interior Country considered in another view in which
several of your letters have placed them; I mean as to the settlements
formed under their protection, which, not being included within the
jurisdiction of any other Colony are exposed to many Difficulties
& Disadvantages from the Want of some Form of Government necessary
to Civil Society, it is very evident that, if the case of these
Settlements had been well known or understood at the time of forming
the conquered Lands into Colonies, some provision would have been
made for them, & they would have been erected into distinct Governments
or made dependent upon those Colonies of which they were either the
offspring, or with which they did by circumstances and situation, stand
connected. I shall not fail, therefore, to give this matter the fullest
consideration when the business of the Illinois Country is taken
up."[102]
That the occupation of Fort Chartres became anything more than
temporary was due to the necessity of being prepared to crush a
possible uprising of the savages and to repel the constant invasion of
the French and Spanish traders[103] from beyond the Mississippi, whose
influence over the Indians, it was feared, would be detrimental to the
peace of the empire. In its policy of retrenchment owing to the trouble
with the colonies, the government at various times contemplated the
withdrawal of the troops, but each time the detachment was allowed to
remain the sole reason given was to guard that portion of the empire
against the French and Indians.
In the course of this inquiry relative to the legal status of Illinois
no mention has been made of the extension or non-extension of English
law and custum to the West after its cession. This is one of the more
important general aspects of the western problem and deserves some
attention inasmuch as it may throw some light on the legal position of
the settlements. During the seventeenth and eighteenth centuries, the
great era of English colonization, the necessity of fixing definitely
the legal status of the colonies called forth a series of judicial
opinions and legal commentaries; it is to these we have to look to
determine the theory held regarding the application of English law
to the colonies and particularly to conquered provinces. In general
it may be said that Blackstone represents the usual view taken by
jurists during these two centuries. In his commentaries published in
1765 he declared that "in conquered or ceded countries, that have
already laws of their own, the king may indeed alter and change those
laws, but till he actually does change them, the ancient laws of the
country remain.[104]" This opinion is supported by the authority of
Lord Mansfield in his decision in the case of Campbell vs Hall,[105]
rendered in 1774, which involved the status of the island of Granada, a
conquered province. He laid down in this decision the general principle
that the "laws of a conquered country continue in force until they are
altered by the conquerer. The justice and antiquity of this maxim are
incontrovertible:——"[106]
The Proclamation of 1763 which had definitely extended the laws of
England to the new provinces,[107] made no such provisions for the
West, nor did the crown ever take such action. We may, therefore, lay
down the general principle that the British Government was obliged
to govern her new subjects in this region according to the laws
and customs hitherto prevailing among them; any other course would
manifestly be illegal. The commanding general of the army in America
and his subordinates, who were embarrassed by the presence of this
French settlement for which no provision had been made by the ministry,
and who found it necessary to assume the obligation of enforcing some
sort of order in that country, had no power to displace any of the
laws and customs of the French inhabitants. It will be pointed out in
succeeding chapters that this general principle, while adhered to in
many respects, was not uniformly carried out.
It is apparent from the foregoing considerations that the government
of the Illinois people was de facto in nature. It had no legal
foundations. Every action of the military department was based on
expediency; although this course was in general acquiesced in by the
home authorities, all the officials concerned were aware that such a
status could not continue indefinitely. But it did continue for about a
decade, during which time the inhabitants were at the mercy of some six
or seven different military commandants. In 1774, however, Parliament
passed the Quebec Act, which provided, among other things, for the
union of all the western country north of the Ohio River, and which but
for the cataclysm of the American revolution meant civil government for
the whole region.