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No maxim of public law has hitherto been more universally established among the Powers of Europe possessing territories in America, and there is none to which Great Britain has more uniformly and inflexibly adhered, than that of suffering no interposition of a foreign Power in the relations between the acknowledged sovereign of the territory and the Indians situated upon it. Without the admission of this principle there would be no intelligible meaning attached to stipulations establishing boundaries between the dominions in America of civilized nations, possessing territories inhabited by Indian tribes. Whatever may be the relations of Indians to the nation in whose territory they are thus acknowledged to reside, they cannot be considered as an independent Power by the nation which has made such an acknowledgment.
That the territory of which Great Britain wishes now to dispose is within the dominions of the United States was solemnly acknowledged by herself in the treaty of peace of 1783, which established their boundaries, and by which she relinquished all claims to the government, propriety, and territorial rights within those boundaries. No condition respecting the Indians residing there was inserted in that treaty. No stipulation, similar to that now proposed, is to be found in any treaty made by Great Britain, or, within the knowledge of the undersigned, by any other nation.
The Indian tribes for which Great Britain proposes now to stipulate, have themselves acknowledged this principle. By the Greenville treaty of 1795, to which the British plenipotentiaries have alluded, it is expressly stipulated, and the condition has been confirmed by every subsequent treaty, so late as the year 1810, "that the Indian tribes shall quietly enjoy their lands, hunting, planting, and dwelling thereon so long as they please, without any molestation from the United States; but that when those tribes, or any of them, shall be disposed to sell their lands, they are to be sold only to the United States; that, until such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude on the same; and that the said Indian tribes again acknowledge themselves to be under the protection of the said United States, and of no other Power whatever."
That there is no reciprocity in the proposed stipulation is evident. In prohibiting Great Britain and the United States from
purchasing lands within a part of the dominions of the latter Power, while it professes to take from Great Britain a privilege which she had not, it actually deprives the United States of a right exclusively belonging to them.
The proposition is also utterly unnecessary for the purpose of obtaining a pacification for the Indians residing within the territories of the United States. The undersigned have already had the honor of informing the British plenipotentiaries that, under the system of liberal policy adopted by the United States in their relations with the Indians within their territories, an uninterrupted peace had subsisted from the year 1795, not only between the United States and all those tribes, but also amongst those tribes themselves, for a longer period of time than ever had been known since the first settlement of North America. Against those Indians the United States have neither interest nor inclination to continue the war. They have nothing to ask of them but peace. Commissioners on their part have been appointed to conclude it, and an armistice was actually made last autumn with most of those tribes. The British Government may again have induced some of them to take their side in the war; but peace with them will necessarily follow immediately a peace with Great Britain. To a provisional article, similar to what has been stipulated in some former treaties, engaging that each party will treat for the Indians within its territories, include them in the peace, and use its best endeavors to prevent them from committing hostilities against the citizens or subjects of the other party, the undersigned might assent, and rely on the approbation and ratification of their Government. They would also, for the purpose of securing the duration of peace, and to prevent collisions which might interrupt it, propose a stipulation which should preclude the subjects or citizens of each nation respectively from trading with the Indians residing in the territory of the other. But to surrender both the rights of sovereignty and of soil over nearly one-third of the territorial dominions of the United States to a number of Indians, not probably exceeding twenty thousand, the undersigned are so far from being instructed or authorized that they assure the British plenipotentiaries that any arrangement for that purpose would be instantaneously rejected by their Government.
Not only has this extraordinary demand been made a sine qua non, to be admitted without discussion, and as a preliminary
basis, but it is accompanied by others equally inadmissible, which the British plenipotentiaries state to be so connected with it that they may reasonably influence the decision of the undersigned upon it, yet leaving them uninformed how far those other demands may also be insisted on as indispensable conditions of a peace. . Whatever the motive may be, and with whatever consistency views of conquest may be disclaimed, while demanding for herself or for the Indians a cession of territory more extensive than the whole island of Great Britain, the duty marked out for the undersigned is the same. They have no authority to cede any part of the territory of the United States, and to no stipulation to that effect will they subscribe.
The conditions proposed by Great Britain have no relation to the subsisting differences between the two countries; they are inconsistent with acknowledged principles of public law; they are founded neither on reciprocity nor on any of the usual bases of negotiation, neither on that of uti possidetis nor of status ante bellum. They would inflict the most vital injury on the United States, by dismembering their territory, by arresting their natural growth and increase of population, and by leaving their northern and western frontier equally exposed to British invasion and Indian aggression; they are, above all, dishonorable to the United States, in demanding from them to abandon territory and a portion of their citizens; to admit a foreign interference in their domestic concerns, and to cease to exercise their natural rights on their own shores and in their own waters. A treaty concluded on such terms would be but an armistice. It cannot be supposed that America would long submit to conditions so injurious and degrading
It is, therefore, with deep regret, that the undersigned have seen that other views are entertained by the British Government, and that new and unexpected pretensions are raised, which, if persisted in, must oppose an insuperable obstacle to a pacification. It is not necessary to refer such demands to the American Government for its instruction. They will only be a fit subject of deliberation when it becomes necessary to decide upon the expediency of an absolute surrender of national independence.
Lord Castlereagh to Lord Liverpool."
PARIS, August 28, 1814. Draft. My dear Liverpool
I send you a despatch and two private letters received from Ghent; also my reply to Goulburn, and some observations upon the documents referred to.
During my stay of the greater part of two days at Ghent, I did not see any of the American Commissioners; they did not call upon or desire to see me; and I thought my originating an interview would have been objectionable and awkward by our own Commissioners. When I left them, they inferred, from the manner in which their verbal explanations had been received, that the American Commissioners were disposed to treat and sign upon the frontier and Indian arrangements. No surprise or repugnance was at the moment disclosed to any of our suggestions.
If I had been to prepare the note given in on our part, I should have been inclined to state the proposition as to Indian limits less peremptorily; but the Commissioners appeared to attach so much importance to the not weakening, in this stage of their discussions, the ground which they had previously taken up upon this point, that I acquiesced in the expression, “it is equally necessary,” etc., which is very strong. I cautioned them, in reasoning on the words “purchase or otherwise," not to commit themselves, without further authority, to mean thereby to negative the possibility of conquest in a war justifiably declared, however open such a principle might be to evasion—the absence of any such right of acquiring territory being, at this moment, the state in which Great Britain and America stand mutually, with respect to each other's Indians.
Each Power would repel an attack, and follow the Indian enemy within the lines of the other State, would extinguish the tribe, if possible, and destroy their towns; but their right of war would not extend to the acquisition of territory beyond their own boundary. It is a right of reprisal, rather than a perfect right of war.
The whole seems a question of expediency and not of principle, as the American Commissioners have endeavoured to make it.
Correspondence of Lord Castlereagh, 3rd Series, Vol. II, p. 100.
There is nothing demanded which is not, or may not be made, consistent with reciprocity; nor does it follow, because, in the year 1783, the two States, not perhaps very justly, took a common boundary, thereby assuming a sort of sovereignty over the Indians, that they may not mutually recede from that boundary, if a frontier conterminous with that of the Indians is preferable to one with each other: and special exceptions might be introduced in favour of existing settlements on either side, which had given birth to rights of property.
It is extremely material to answer fully the American note, as it is evidently intended to rouse the people upon the question of their independence. As I leave Paris in a few hours, I have not time to suggest a sketch for your consideration, and can only send a few rough materials for you and my colleagues to work upon.
The substance of the question is, are we prepared to continue the war for territorial arrangements; and, if not, is this the best time to make our peace, saving all our rights, and claiming the fisheries, which they do not appear to question (in which case, the territorial questions might be reserved for ulterior discussion); or is it desirable to take the chance of the campaign, and then to be governed by circumstances? If the latter is advisable, we have the means of doing so, as the American Commission gives us no room to expect any pacific stipulation whatever in favour of what they call their Indians, without now putting the war solely and avowedly on a territorial principle, which I think it would be imprudent to do. On the other hand, if we thought an immediate peace desirable, as they are ready to 'wave all the abstract questions, perhaps they might be prepared to sign a Provisional Article of Indian peace, as distinct from limits, and relinquish their pretensions to the islands in Passamaquoddy Bay, and possibly to admit minor adjustments of frontier, including a right of communication from Quebec to Halifax, across their territory. But whilst I state this, I feel the difficulty of so much letting down the question, under present circumstances, upon the chance of such a body, containing all the varieties of American party, agreeing amongst themselves to any measure of responsibility; and, further, upon the imperfect security that, if they did, it would be approved at home.