Читать книгу The Land of the Miamis - Barce Elmore - Страница 9

– The Indian right of occupancy recognized through the liberal policy of Washington and Jefferson.

By the terms of the definitive treaty of 1783, concluding the war of the revolution the territory northwest of the river Ohio passed forever from the jurisdiction of the British government, over to the new born states of the United States. By the first article of that treaty, the thirteen former colonies were acknowledged to be free, sovereign and independent powers, and Great Britain not only relinquished all her rights to the government, but to the "proprietary and territorial rights of the same, and every part thereof." At the time of that treaty, the northwest territory was occupied by a number of powerful and warlike tribes of savages, yet no reservation of any kind was made in their favor by the English negotiators. The Iroquois confederacy of New York, and more particularly the Mohawks, had stood out stoutly on the side of the king, but they were wholly forgotten in the articles of peace. Of this action, Joseph Brant, the Mohawk leader, in his communications with Lord Sidney, in 1786, most bitterly complained, expressing his astonishment "that such firm friends and allies could be so neglected by a nation remarkable for its honor and glory." Yet if Brant had been better acquainted with the policy and usage of European nations, he would have known that England had granted away not only the sovereignty, but the very soil of the territory itself, subject only to the Indian rights of occupancy. In all the ancient grants of the crown to the duke of York, Lord Clarendon and others, there passed "the soil as well as the right of dominion to the grantee." France, while adopting a liberal policy toward the savages of the new world, claimed the absolute right of ownership to the land, based on first discovery. Spain maintained a like claim. The war for supremacy in the Saint Lawrence, the Mississippi and the Ohio valleys between Great Britain and France, terminating in the peace of 1763, was a war waged for the control of lands and territory, notwithstanding the occupancy of the Indian tribes. If a country acquired either by conquest or prior discovery, is filled with a people attached to the soil, and having fixed pursuits and habitations, the opinion of mankind would seem to require that the lands and possessions of the occupants should not be disturbed, but if the domain discovered or conquered is filled with a race of savages who make no use of the land, save for the purpose of hunting over it, a different solution must of necessity result. There can be no admixture of races where the one is civilized and the other barbarous. The barbarian must either lose his savagery and be assimilated, or he must recede. The North American Indian was not only brave, but fierce. In the wilds and fastnesses of his native land, he refused to become either a subject or a slave. No law of the European could be formulated for his control; he obeyed only the laws of nature under which he roamed in freedom. He knew nothing of fee or seisin, or the laws of conveyancing, as his white brother knew it. He knew only that the rivers and the forests were there, and that he gained his subsistence from them. With him, the strongest and the fiercest had the right to rule; the right to hunt the buffalo and elk. The European put fire arms into the hands of the Iroquois warrior, and that warrior at once made himself master of all north of the Ohio and east of the Mississippi, without regard to the prior claims of other tribes. To expect that a savage of this nature could be dealt with under the ordinary forms and conventions of organized society, was to expect the impossible. To him, the appearance of a surveyor or a log cabin was an immediate challenge to his possession. Today he might be brought to make a treaty, but on the morrow he was filled with a jealous hate again, and was ready to burn and destroy. On the other hand, to leave him in the full possession of his country was, as Chief Justice Marshall said: "To leave the country a wilderness." To stop on the borderland of savagery and advance no further, meant the retrogression of civilization. The European idea of ownership was founded on user. The inevitable consequence was, that the conqueror or discoverer in the new world claimed the ultimate fee in the soil, and the tribes receding, as they inevitably did, this fee ripened into present enjoyment. When Great Britain, therefore, owing to the conquests of George Rogers Clark, surrendered up to the United States her jurisdiction and control over the territory north and west of the Ohio river, she did, according to the precedent and usage established by all the civilized nations of that day, pass to her grantee or grantees, the ultimate absolute title to the land itself, notwithstanding its savage occupants, and the right to deal with these occupants thenceforward became a part of the domestic policy of the new republic, with which England and her agents had nothing to do. "It has never been doubted," says Chief Justice Marshall, "that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only, to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it." These facts should be kept in mind when one comes to consider the equivocal course that England afterwards pursued.

But how were the savage wards occupying these lands, and thus suddenly coming under the guardianship of the republic, to be dealt with? Were they to be evicted by force and arms, and their possessory rights entirely disregarded, or were their claims as occupants to be gradually and legitimately extinguished by treaty and purchase, as the frontiers of the white man advanced? In other words, was the seisin in fee on the part of the states, or the United States, to be at once asserted and enforced, to the absolute and immediate exclusion of the tribes from the lands they occupied, or was a policy of justice and equity to prevail, and the ultimate right to the soil set up, only after the most diligent effort to ameliorate the condition of the dependent red man had been employed? The answer to this question had soon to be formulated, for on March 1st, 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe, delegates in the Continental Congress on the part of the State of Virginia, in pursuance of the magnanimous policy of her statesmen, executed a deed of cession to the United States, of all her claim and right to the territory northwest of the Ohio, the same to be used as a common fund "for the use and benefit of such of the United States as have become, or shall become, members of the confederation or federal alliance of the states." The only reservations made were of a tract of land not to exceed one hundred and fifty thousand acres to be allowed and granted to General George Rogers Clark, his officers and soldiers, who had conquered Kaskaskia, Vincennes, and the western British posts under the authority of Virginia, said tract being afterwards located on the Indiana side of the Ohio, adjacent to the falls of that river, and known as the "Illinois Grant," and a further tract to be laid off between the rivers Scioto and Little Miami, in case certain lands reserved to the continental troops of Virginia upon the waters of the Cumberland, "should, from the North Carolina line, bearing in further upon the Cumberland lands than was expected," prove to be deficient for that purpose. The cession of Virginia was preceded by that of New York on the first day of March, 1781, and followed by that of Massachusetts, on the 19th day of April, 1785, and that of Connecticut on the 14th of September, 1786, and thus the immense domain now comprising the states of Ohio, Indiana, Illinois, Michigan and Wisconsin, with the exception of the reservations of Virginia, and a small reservation of the state of Connecticut in northeastern Ohio, passed over to the general government, before the adoption of the federal constitution, and before George Washington, the first president of the United States, was sworn into office, on the 30th day of April, 1789.

But the wisdom and the broad national views of the leading Virginia law-makers and statesmen, had already, in great measure, pointed the way to the Indian policy to be pursued by Washington and his successors. No state, either under the old confederation or the new constitution, presented such a formidable array of talent and statecraft as Virginia. Washington, Jefferson, John Marshall, and Madison, stood pre-eminent, but there was also Edmund Randolph, Patrick Henry, James Monroe, George Mason, William Grayson and Richard Henry Lee.

Washington had always taken a deep and abiding interest in the western country. In 1770 he had made a trip down the Ohio in company with his friends, Doctor Craik and William Crawford. The distance from Pittsburgh to the mouth of the Great Kanawha was two hundred and sixty-five miles. The trip was made by canoes and was rather hazardous, as none of Washington's party were acquainted with the navigation of the river. The party made frequent examinations of the land along the way and Washington was wonderfully impressed with the future prospects of the country. Arriving at the mouth of the Great Kanawha, he ascended that river for a distance of fourteen miles, hunting by the way, as the land was plentifully stocked with buffalo, deer, turkeys and other wild game. He also made critical observations of the soil here, with a view to future acquisitions. The whole country below Pittsburgh at that time, was wild and uninhabited, save by the Indian tribes.

At the close of the revolution the minds of Washington, Jefferson and other leading Virginians were filled with the grand project of developing and colonizing the west, and binding it to the union by the indissoluble ties of a common interest. There was nothing of the narrow spirit of provincialism about these men. Their thoughts went beyond the limited confines of a single state or section, and embraced the nation. They entertained none of those jealousies which distinguish the small from the great. On the contrary, they looked upon the mighty trans-montane domain with its many watercourses, its rich soil, and its temperate climate, as a rich field for experimentation in the erection of new and free republics. The deed of cession of Virginia had provided: "That the territory so ceded shall be laid out and formed into new states, containing a suitable extent of territory, not less than one hundred, nor more than one hundred fifty miles square, or as near thereto as circumstances will admit: and that the states so formed should be distinct republican states, and admitted members of the federal union, having the same rights of sovereignty, freedom, and independence, as the other states." If this great public domain, thus dedicated to the whole nation, and under the control of its supreme legislative body, the continental congress, could be filled up with a conglomerate population from all the states, factions and sectional jealousies would disappear, and at the same time the original states would be more closely knit together by the bonds of their common interest in the new federal territory.

But there was one great obstacle to the realization of these hopes, and that was the difficulty of opening up any means of communication with this western empire. The mountain ranges stood as barriers in the way, unless the headwaters of such rivers as the Potomac and the James, could be connected by canals and portages with the headwaters of the Ohio and its tributaries. If this could be accomplished, and if the headwaters of the Miami, Scioto and Muskingum, could be connected in turn with those of the Cuyahoga, the Maumee and the Wabash, then all was well, for this would furnish an outlet for the commerce of the west through the ports and cities of the Atlantic seaboard. There were other and highly important political questions that engaged Washington's attention at this time, and they were as follows: The English dominion of Canada bordered this northwest territory on the north. The British, contrary to the stipulations of the treaty of peace of 1783, had retained the posts of Detroit, Niagara and Oswego, to command the valuable fur trade of the northwest, and the Indian tribes engaged therein, and in addition they also enjoyed a complete monopoly of all trading vessels on the Great Lakes. To the south and west of this northwest territory lay the Spanish possessions, and the Spanish were attempting to bar the settlers of Kentucky from the use of the Mississippi for the purposes of trade. In other words, they were closing the market of New Orleans against the Kentuckians. But suppose that either or both of these powers, who were then extremely jealous of the growth and expansion of the new republic, should hold forth commercial advantages and inducements to the western people? What then would be the result? What then the prospect of binding any new states to be formed out of this western territory in the interest of the federal union?

With all these great questions revolving in his mind, we see the father of his country again on horseback in the year 1784, traversing six hundred and eighty miles of mountain wilderness in Pennsylvania and Virginia and examining the headwaters of the inland streams. He made every inquiry possible, touching the western country, examined every traveler and explorer who claimed to have any knowledge of its watercourses and routes of travel, and after spending thirty-three days of fatiguing travel in the saddle, he returned to his home and made a report of his observations to Governor Harrison of Virginia. His remarks on the western country are so highly interesting and important, and manifest such a deep and profound interest in the future welfare of the western world, as to call for the following quotations:

"I need not remark to you that the flanks and rear of the United States are possessed by great powers, and formidable ones, too; nor how necessary it is to apply the cement of interest to bind all parts of the Union together by indissoluble bonds, especially that part of it, which lies immediately west of us, with the middle states. For what ties, let me ask, should we have upon these people? How entirely unconnected with them shall we be, and what troubles may we not apprehend, if the Spaniards on their right, and Great Britain on their left, instead of throwing stumbling-blocks in their way, as they now do, should hold out lures for their trade and alliance? What, when they get strength, which will be sooner than most people conceive (from the emigration of foreigners, who will have no particular predilection towards us, as well as from the removal of our own citizens), will be the consequence of their having formed close connections with both or either of those powers, in a commercial way? It needs not, in my opinion, the gift of prophecy to foretell."

"The western states (I speak now from my own observation) stand as it were upon a pivot. The touch of a feather will turn them any way. They have looked down the Mississippi, until the Spaniards, very impolitically, I think, for themselves, threw difficulties in their way; and they look that way for no other reason, than because they could glide gently down the stream; without considering, perhaps, the difficulties of the voyage back again, and the time necessary to perform it in; and because they have no other means of coming to us, but by long land transportations and unimproved roads. These causes have hitherto checked the industry of the present settlers; for except the demand for provisions, occasioned by the increase of population, and a little flour, which the necessities of the Spaniards compel them to buy, they have no incitements to labor. But smooth the road, and make easy the way for them, and then see what an influx of articles will be poured upon us; how amazingly our exports will be increased by them, and how amply we shall be compensated for any trouble and expense we may encounter to effect it."

"A combination of circumstances makes the present conjuncture more favorable for Virginia, than for any other state in the union, to fix these matters. The jealous and untoward disposition of the Spaniards on the one hand, and the private views of some individuals, coinciding with the general policy of the court of Great Britain, on the other, to retain as long as possible the posts of Detroit, Niagara, and Oswego (which though done under the letter of the treaty, is certainly an infraction of the spirit of it, and injurious to the Union) may be improved to the greatest advantage by this state, if she would open the avenues to the trade of that country, and embrace the present moment to establish it. It only wants a beginning. The western inhabitants would do their part towards its execution. Weak as they are, they would meet us at least half-way, rather than be driven into the arms of foreigners, or be made dependent upon them; which would eventually either bring on a separation of them from us, or a war between the United States and one or other of those powers, most probably the Spaniards."

These remarks coming from the pen of Washington aroused intense interest in Virginia. He did not stop there. On the fourteenth of December, 1784, we see him calling the attention of the president of the old continental congress to these affairs. He urged, "that congress should have the western waters well explored, their capacities for navigation ascertained as far as the communications between Lake Erie and the Wabash, and between Lake Michigan and the Mississippi, and a complete and perfect map made of the country at least as far west as the Miamis, which run into the Ohio and Lake Erie," and he pointed out the Miami village as the place for a very important post for the Union. The expense attending such an undertaking could not be great; the advantages would be unbounded. "Nature," he said, "has made such a display of her bounty in these regions that the more the country is explored the more it will rise in estimation. The spirit of emigration is great; people have got impatient; and, though you cannot stop the road, it is yet in your power to mark the way. A little while and you will not be able to do either." Such were the enlightened and fatherly hopes that Washington thus early entertained of the great west and its struggling pioneers, who were trying to carve out their destinies in a remote wilderness.

No less enlightened were the views of Jefferson. He may be said in truth to be the father of the northwest. When a member of the legislature of Virginia, he had promoted the expedition under George Rogers Clark, which resulted in the conquest of the northwest, and its subsequent cession to the United States under the treaty of 1783. As governor of Virginia he had taken part in its cession to the general government on March first, 1784. "On that same day," says Bancroft, "before the deed could be recorded and enrolled among the acts of the United States, Jefferson, as chairman of a committee, presented a plan for the temporary government of the western territory from the southern boundary of the United States in the latitude of thirty-one degrees to the Lake of the Woods. It is still preserved in the national archives in his own handwriting, and is as completely his own work as the Declaration of Independence." As the profoundest advocate of human rights of his day or time, freeing himself from the narrow spirit of sectionalism, and despising human slavery and its contamination of the institutions of a free people, he proposed the ultimate establishment of ten new states in the territory northwest of the Ohio, a republican form of government for each of them, and no property qualification for either the electors or the elected. "Following an impulse of his own mind," he proposed the everlasting dedication of the northwest to free men and free labor, by providing that after the year 1800 there should be neither slavery nor involuntary servitude in any of them. While Jefferson's plan for the exclusion of slavery was stricken from the ordinance, his noble ideas of freedom were afterwards fully and completely incorporated in the final Ordinance of 1787, whereby "neither slavery nor involuntary servitude, in the said territory, otherwise than in the punishment of crime, whereof the party shall have been duly convicted," should ever be permitted. This ordinance, through the predominating influence of Virginia and her statesmen, was passed by the vote of Georgia, South Carolina, North Carolina, Virginia, Delaware, New Jersey, New York and Massachusetts, and afterwards ratified by the legislature of Virginia who had to consent thereto to give it full force.

It is at once apparent that these statesmen and patriots who looked forward to the establishment of free republics in the western domain, based on free labor and equal rights, would never consent that the foundation of these new republics should be laid in blood. The outrages perpetrated on the frontiers of New York, Pennsylvania and Virginia, and on the infant settlements of Kentucky, during the revolution, and all at the instigation of the British, had left behind them a loud cry for vengeance. In fact similar outrages were still taking place daily. The claim was made that under the treaty of peace with Great Britain, that no reservation had been made in favor of any of the Indian tribes, or in favor of their claims to any of the lands they occupied; that under the treaty the absolute fee in all the Indian lands within the limits of the United States had passed to the several states such as Virginia, who had a legitimate claim to them, and later by cession of these states to the general government, and that congress "had the right to assign, or retain such portions as they should judge proper;" that the Indian tribes, having aided Great Britain in her attempt to subjugate her former colonies, and having committed innumerable murders, arsons and scalpings on the exposed frontiers, should now be required to pay the penalty for their crimes; that their lands and hunting grounds should stand forfeit to the government, and they be expelled therefrom. In other words, it was asserted that the government should turn a harsh and stern countenance towards all these savage marauders and drive them by force, if need be, from the public lands.

Towards all these arguments in favor of a hard and uncompromising attitude toward the savage tribes, both Washington and Jefferson turned a deaf ear. They assumed a high plane of mercy and forgiveness towards the red man that must ever redound to their glory. On August 7th, 1789, in a message to the senate of the United States, Washington said: "While the measures of government ought to be calculated to protect its citizens from all injury and violence, a due regard should be extended to those Indian tribes whose happiness, in the course of events, so materially depends upon the national justice and humanity of the United States." These sentiments were reflected in his course of action from the first day of peace with Great Britain. He, together with General Philip Schuyler, said, "that with regard to these children of the forest, a veil should be drawn over the past, and that they should be taught that their true interest and safety must henceforth depend upon the cultivation of amicable relations with the United States." He took the high ground that peace should be at once granted to the several tribes, and treaties entered into with them, assigning them certain lands and possessions, within the limits of which they should not be molested. To avoid national dishonor, he advocated the purchase of all lands occupied by the various Indian tribes as the advance of the settlements should seem to require, thus fully recognizing the Indian right of occupancy. He utterly rejected all ideas of conquest, and as he commanded a powerful influence over all the better minds of that day, his counsels prevailed.

To those who have read Jefferson's speeches to the Little Turtle, the Miamis, Potawatomi and Delawares in the year 1808, near the close of his second administration, the broad humanitarianism and fatherly benevolence of the third president is at once apparent. In those addresses he laments the "destructive use of spirituous liquors," the wasting away of the tribes as a consequence thereof, and directs the attention of their chieftains to "temperance, peace and agriculture," as a means of restoring their former numbers, and establishing them firmly in the ways of peace. "Tell this, therefore, to your people on your return home. Assure them that no change will ever take place in our dispositions toward them. Deliver to them my adieux, and my prayers to the Great Spirit for their happiness. Tell them that during my administration I have held their hand fast in mine; that I will put it into the hand of their new father, who will hold it as I have done." Jefferson demanded always that the strictest justice should be done toward the tribes, and carrying forward his ideas in his first ordinance of 1784, for the government of the northwest territory, he inserted a provision that no land was to be taken up until it had been first purchased from the Indian tribes and offered for sale through the regular agencies of the government.