The best illustration of the theory and practice, upon which the above principles were founded, is seen in the policy pursued by France and Great Britain in their dealings with the Indian nations, which inhabited that part of North America which had fallen under their respective sovereignties and within their respective dominions. It is unnecessary to follow in detail the development of the policies of these governments since the principles governing them are fully embodied in their royal proclamations or charters of the eighteenth century.

The French policy is set forth in certain letters patent given by His Majesty Louis XV to the "Western Company" in August, 1717,5 which are, in part, as follows:

"SEC. V. With a view to give the said Western Company the means of forming a firm establishment, and enable her to execute all the speculations she may undertake, we have given, granted, and conceded, do give, grant, and concede to her, by these present letters and forever, all the lands, coasts, ports, havens, and islands which compose our province of Louisiana, in the same way and extent as we have granted them to M. Crozat by our letters patent of 14th September 1712, to enjoy the same in full property, seigniory, and jurisdiction, keeping to ourselves no other rights or duties than the fealty and liege homage the said company shall be bound to pay us and to the kings our successors at every new reign, with a golden crown of the weight of thirty marks. "SEC. VI. The said Company shall be free, in the said granted lands, to negotiate and make alliance in our name with all the nations of the land, except those which are dependent on the other powers of Europe; she may agree with them on such conditions as she may think fit, to settle among them, and trade freely with them, and in case they insult her she may declare war against them, attack them or defend herself by means of arms, and negotiate with them for peace or for a truce."

By section VIII, authority is given to the Company "to sell and give away the lands granted to her for whatever quit or ground rent she may think fit, and even to grant them in freehold, without jurisdiction or seigniory."

These letters patent show:

First. That the right of empire over Louisiana was in the Crown of France and that the terms of the grant in no way lessened or impaired that right.

Second. While the right of dominion, including the ultimate fee to the soil and the right to treat with the native nations, was delegated and granted to the Western Company, the right to deal with such nations was expressly limited to those under the dominion and sovereignty of France, and the Company was precluded from dealing with such nations as were "dependent on the other powers of Europe."

Third. The Indian right of use or occupancy, while not defined in terms, appears by implication. Although section VIII gives the company the power to grant the lands in fee, section VI recognizes a limited right in the native nations by requiring the company to treat with them as to the conditions, upon which settlements might be made.

The policy of Great Britain may be traced through all her colonial charters and royal proclamations. This policy, as developed up to the time of the American Revolution, appears in a proclamation of His Majesty George V, issued on October 7, 1763, at St. James, and promulgated in America through Sir William Johnson, His Majesty's Superintendent of Indian Affairs." This proclamation provides in part as follows:

"And whereas, it is just and reasonable, and essential to our interest and the security of our colonies, that the several nations or tribes of Indians, with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to, or purchased by us, are reserved to them, or any of them, as their hunting grounds; we do, therefore, with the advice of our privy council, declare it to be our royal will and pleasure, that no Governor or commander in chief, in any of our colonies of Quebec, East Florida, or West Florida, do presume, upon any pretense whatever, to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective governments, as described in their commissions; or upon any lands whatever, which, not having been ceded to, or purchased by, us, as aforesaid, are reserved to the said Indians or any of them.

"And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve under our sovereignty, protection, and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new Governments, or within the limits of the territory granted to the Hudson's Bay Company; as also all the lands and territories lying to the Westward of the sources of the rivers which fall into the sea from the West and Northwest as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained.

"And we do further strictly enjoin and require all persons whatever, who have either wilfully or inadvertently seated themselves upon any lands within the countries above desscribed, or upon any other lands, which, not having been ceded to, or purchased by, us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements.

"And whereas great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissatisfaction of the said Indians; in order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our privy council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians, of any lands reserved to the said Indians, within those parts of our colonies where we have thought proper to allow settlement; but that, if, at any time, any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of the said Indians, to be held for that purpose, by the Governor or commander-in-chief of our colony, respectively, within which they shall lie."

The right of empire and the right of domain over the lands occupied by the Indians were here clearly defined, as the Indian tribes were stated to be living under the sovereignty and protection of the British Crown. All subjects of His Majesty were prohibited from acquiring any lands from these Indian tribes, and no purchases were thereafter permitted to be made except for and in the name of the British Crown at a public meeting or assembly

mander-in-chief of the Colony, within which were the lands to be purchased.

A recognition of these principles is also to be found in the Treaty of Utrecht, between France and Great Britain in 1713,7 in which certain tribes are referred to as subject to the sovereignty of Great Britain and others as subject to the sovereignty of France, and in the Treaty between Spain and the United States of October 27, 1785, in which the Indians inhabiting the Spanish possessions are referred to by Spain as "her Indians." Vattel also recognized these principles to be so universally established by the practice of civilized nations as to entitle them to a place in his work on the "Law of Nations."

8

The treaty of peace, concluded in 1783 between Great Britain and the United States, recognized the United States as a sovereign nation, and fixed the boundaries of its territories. No reference to the Indian tribes or nations, which were domiciled within the boundaries of the United States, as thus defined, was deemed to be necessary or proper in the treaty itself, since the ratification of that treaty, ipso facto, vested in the United States the rights of empire and domain, which Great Britain had formerly possessed over such Indian tribes or nations. The Indian nations, which thus fell under the American sovereignty and dominion, were left in a precarious position for the reason that many of them had forfeited any claim they might have had to their lands by their hostility to the United States during the war. The United States, however, deemed it inadvisable to take advantage of the situation of such hostile Indian nations, and uniformly pursued towards them a liberal policy.

Various treaties were made with the Indian nations, in which such nations acknowledged themselves to be under the protection of the United States and of no other Power whatsoever, and by which peace was established between them and the United States and the boundaries of the lands, to which such nations had a right of use or occupancy, defined and confirmed. The United States followed the practice of William Penn and the settlers of New England, in acquiring no lands from the Indian nations except through amicable treaties, by which such nations were given a

"Appendix, Vol. I, pp. 9-10. Appendix, Vol. I, p. 34.

valuable consideration, satisfactory to them, in return for the rights which they thus relinquished.

In spite of the generous policy adopted by the United States, (which was explained by President Washington himself to such of the tribes or nations as chose to send deputations to Philadelphia, then the capital of the United States),1o great difficulty was experienced in maintaining peace with the Indian nations. The natural proclivity of the savages towards war, and their conflicting claims to certain of the lands ceded to the United States, were among the causes which led to intermittent but bitter Indian wars along the western frontiers of the United States from 1783 until 1814.

The proximate cause, however, of the failure of the United States to attach firmly to itself and to maintain permanent friendly relations with the more remote Indian tribes domiciled within its territory, may be justly ascribed to the activities of the British traders, and to the policy pursued towards these tribes by the British Colonial Government in Canada.

At the close of the Revolution, the British traders had overrun the unsettled portions of the United States, and had penetrated as far as the regions lying to the west of the Mississippi River, establishing trading posts at various places. The operations of these traders had been so successful as to give to them a practical monopoly of the fur trade with the Indian tribes of those regions. They were quick to realize that, if those tribes became friendly to the United States, their monopoly of the trade would cease, and they would come into competition with American traders. For this reason they did everything in their power to keep the tribes friendly to themselves and to His Majesty's Government, and hostile to the United States.

The Indian tribes had learned to rely upon the British Indian agents for advice and counsel as to their affairs, and they were unable to appreciate the change in their status and allegiance, which had been brought about by the independence of the United States. The British were loath to relinquish the influence which they had possessed over these Indian tribes for nearly a century. The retention of certain frontier posts by Great Britain on or near the international boundary enabled the British officers and