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,
"The last but the most important affair I have at this time to
mention, is with regard to the _settling a boundary between you and
the English_. I sent a message to some of your nations some time
ago, to acquaint you, that I should confer with you at this meeting
upon it. The King, whose generosity and forgiveness you have
already experienced, _being very desirous to put a final end to
disputes between his people and_ YOU CONCERNING LANDS, and to do
you strict justice, has fallen upon the plan of a boundary between
our provinces and the Indians (which no white man shall dare to
invade) as the best and surest method of ending such like disputes,
and _securing your property_ to you, beyond a possibility of
disturbance. This will, I hope, appear to you so reasonable, so
just on the part of the King, and so advantageous to you and your
posterity, that I can have no doubt of your chearfully joining with
me in settling such a division-line, as will be best for the
advantage of both white men and Indians, _and as shall best agree
with the extent and increase of each province_, and the governors,
whom I shall consult upon that occasion, so soon as I am fully
empowered; but in the mean time I am desirous to know in what
manner you would choose to extend it, and what you will heartily
agree to, and abide by, in general terms. At the same time I am to
acquaint you, that whenever the whole is settled, and that it shall
appear you have _so far consulted the increasing state of our
people, as to make any convenient cessions of ground_ where it is
most wanted, that then you will receive a considerable present in
return for your friendship."
To this speech the Sachems and Warriors of the Six Nations, after
conferring some time among themselves, gave an answer to Sir William
Johnson, and agreed to the proposition of the boundary line;--which
answer, and the other transactions of this conference, Sir William
transmitted to the office of the Lords Commissioners for Trade and
Plantations.--
From a change of the administration, which formed the above system of
obtaining an act of parliament for regulating the Indian trade, and
establishing the _boundary line_, or from some other public cause,
unknown to us,--no measures were adopted, until the latter end of the
year 1767, for _completing_ the negotiation about this boundary
line.--But in the mean time, viz. between the years 1765 and 1768,--the
King's subjects removed in _great_ numbers from Virginia, Maryland, and
Pennsylvania, and settled _over_ the mountains,--upon which account,
the Six Nations became so irritated, that in the year 1766 they killed
several persons, and denounced a general war against the middle
colonies; and to appease them, and to avoid such a public calamity, a
detachment of the 42d regiment of root was _that year_ sent from the
garrison of Fort Pitt, to remove such settlers as were seated at _Red
Stone Creek_, &c.--but the endeavours and threats of that detachment
proved ineffectual, and they returned to the garrison, without being
able to execute their orders.--The complaints of the Six Nations
however continuing and _increasing_, on account of the settling of
their lands _over_ the mountains, General Gage wrote to the Governor of
Pennsylvania on the 7th of December 1767, and after mentioning these
complaints, he observed, "_You are a witness how little attention has
been paid to the several proclamations that have been published; and
that even the removing those people from the lands in question_, which
_was attempted this summer by the garrison at Fort Pitt_, has _been
only a temporary expedient_. We learn they are _returned again_ to the
same _encroachments_ on Red Stone Creek and Cheat River in _greater
numbers than ever_."[2]
[2] Vide p. 47.