sioners concluded their note with the statement that they proposed a provisional article, which was enclosed and which met the only two objections which they conceded the Americans had raisedfirst, that the article was not reciprocal, and second, that, as the United States could have no security that the Indian nations would conclude a peace on the terms proposed, the provision would be unilateral. This provisional article, the British Commissioners stated, was delivered as their ultimatum.66

This provisional article, in the form transmitted by the British plenipotentiaries, became Article IX of the Treaty of Ghent, and will be analyzed and discussed in detail later.

On October 13th, the American Commissioners replied to the British note of October 8th.67 Before discussing the provisional article submitted, they exposed the fallacy of the arguments, with which the British Commissioners endeavored to dignify their abandonment of their former sine qua non. The American Commissioners pointed out that, in the negotiations in 1761, Mr. Pitt had rejected the proposal of France to establish an independent Indian state between the boundaries of Canada and Louisiana, for the identical reason, which they had given for rejecting the British proposal, to wit, "that the recognition of a boundary gives up to the nation, in whose behalf it is made, all the Indian tribes and countries within that boundary;" and they quoted to the British Commissioners the statement of Mr. Pitt that "the fixation of new limits to Canada, as proposed by France, is intended to shorten the extent of Canada, which was to be ceded to England, and to lengthen the boundaries of Louisiana, which France was to keep, and in the view to establish what must not be admitted, namely, that all which is not Canada is Louisiana, whereby all the intermediate nations and countries, the true barrier to each province, would be given up to France."

The American Commissioners then reviewed the precedents cited by the British Commissioners as authorizing a sovereign to treat in behalf of his allies and showed that they were not in point, since there was no analogy between the political character of allies such as the independent states of Germany, and that of the wandering tribes of North American savages. They declared that the

66 Appendix, Vol. II, p. 550.

principles, against which the British Commissioners had protested as novel and alarming pretensions, were inaccurately quoted by the British Commissioners, but that, as such principles were founded upon the practice for two centuries of Great Britain herself, no further recognition of them was necessary, and that the principles and pretensions asserted by the British Commissioners in their notes as to the relation of Indian tribes to the sovereign, within whose territory they were domiciled, were the new pretensions that were novel and alarming. The American Commissioners then stated that they were willing to accept the provisional article submitted by Great Britain for the following reasons, and upon the following terms:

"The article proposed by the British plenipotentiaries in their last note, not including the Indian tribes as parties in the peace, and leaving the United States free to effect its object in the mode consonant with the relations which they have constantly maintained with those tribes, partaking, also, of the nature of an amnesty, and being at the same time reciprocal, is not liable to that objection, and accords with the views uniformly professed by the undersigned, of placing those tribes precisely, and in every respect, in the same situation as that in which they stood before the commencement of hostilities. This article, thus proposing only what the undersigned have so often assured the British plenipotentiaries would necessarily follow, if, indeed, it has not already, as is highly probable, preceded, a peace between Great Britain and the United States, the undersigned agree to admit it in substance as a provisional article, subject, in the manner originally proposed by the British Government, to the approbation or rejection of the Government of the United States, which, having given no instructions to the undersigned on this point, cannot be bound by any article they may admit on the subject."

The American Commissioners requested the British to submit to them a projet of the entire treaty, to which they engaged to deliver a contre-projet with respect to all the articles so proposed, as to which they might not agree.

68

The subsequent negotiations upon the other subjects covered by the Treaty of Ghent do not require particular notice, as they do not affect Article IX. It should be noted, however, that in the

projet submitted by the American Commissioners, an article was proposed restraining the Indians living within the dominions of each power from committing hostilities against the other, and binding both powers not to employ Indians in any future war which might unhappily occur between them, which article was rejected by the British Comissioners as inadmissible. An article of amnesty was also suggested by the American Commissioners and rejected by the British.69

Article IX of the Treaty of Ghent was identical with the provisional article of the British Commissioners. This article provided as follows:

"Article IX. The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided always that such tribes or nations shall agree to desist from all hostilities against the United States of America, their citizens and subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly. And His Britannic Majesty engages, on his part, to put an end immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom he may be at war at the time of such ratification, and forthwith to restore to such tribes or nations respectively all the possessions, rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided always that such tribes or nations shall agree to desist from all hostilities against His Britannic Majesty, and his subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly.'

970

From an analysis of this article and a review of the negotiations preceding it, the following deductions are inevitable:

First. The obligation to put an end to hostilities with all tribes and nations of Indians, with which each power was at war at the time of the ratification of the treaty, is reciprocal in terms 69 Appendix, Vol. II, pp. 562-563.

and leaves it entirely in the hands of each power to determine the manner in which peace with such Indian nations should be concluded. It is not, therefore, in any way a recognition of the Indians within the territories of either power as independent nations, and is in no way contradictory of the principle of international law, for which the American Commissioners had contended, namely, that Indian nations living within the territories of a sovereign power were entitled to its protection and subject to its authority and were not persons in international law, which another power could recognize, or with which it could directly treat.

Second. The agreement by each party to restore to such tribes or nations of Indians the possessions, rights, and privileges, which they may have enjoyed or been entitled to in 1811, previous to hostilities, merely places such tribes or nations of Indians in the situation in which they were before the war, and, in effect, is nothing more than an amnesty to disaffected Indian tribes or nations.

Third. The obligations of making peace and of restoring possessions, rights, and privileges, are made subject to the performance of certain conditions precedent by the Indian tribes or nations, in that, upon the notification to them of the ratification of the treaty, they must agree to desist from all hostilities against the sovereign, within whose territories they are domiciled, and further, must actually desist from all hostilities.

Fourth. The obligations of each party under the Article are limited to tribes or nations of Indians, which are domiciled within its territory and with which it is at war. The reason for the omission of such an express limitation in the Article is obvious. It must be remembered that this Article was drafted in the British Foreign Office and that it was the culmination of a negotiation, in which Great Britain had abandoned every point in relation to the Indian tribes, upon which she had originally insisted as a sine qua non to a treaty of peace. The original sine qua non had embodied the creation of an independent Indian state out of territory, which had been acknowledged by the Treaty of 1783 to be within the boundaries of the United States. In order to prevent her sine qua non from appearing as a demand for a cession of territory, Great Britain contended that the Indian

that the independence of such nations had been recognized by the United States in treaties made with them; that, even though Great Britain had had the sovereignty and dominion over the territory, she could not have transferred them to the United States by the Treaty of 1783, to which the Indian nations were not parties; and that any provisions of treaties made by the Indian nations with the United States, in which they had acknowledged themselves to be under its protection, had been abrogated by the war." Great Britain was forced to recede from each of these untenable positions. A statement in Article IX that the United States was obligated to make peace only with such tribes and nations of Indians as had been hostile to it and were domiciled within its territory would, however, have put the British Commissioners on record as admitting the fallacy of their own contentions and the truth of those advanced by the American Commissioners.

Article IX, therefore, was phrased so that it would not be, in terms, an admission of the rights of the United States of sovereignty and of soil over the territory occupied by the Northwest Indians (against which the British Commissioners had formally protested as novel and alarming pretensions), and, at the same time, its language met the objections of the American Commissioners, since it did not in any way question the existence of such rights. As the American Commissioners themselves pointed out, in their note of October 13th,72 in which they accepted this provisional article, so long as that article did not in terms deny the sovereignty and dominion of the United States over the territory inhabited by such tribes or nations of Indians, no "further recognition" of these principles was deemed necessary in view of the British policy and practice from the discovery of America until that time, which had not only recognized again and again the soundness of these principles, but also had been the primary cause of their recognition as a part of the law of nations.

Moreover, any other construction of Article IX than that each party was to treat only with the Indian nations within its own dominions would mean that the United States must make treaties of peace with Indian nations domiciled in Canada and Great Britain with Indian nations domiciled within the United States,

71Appendix, Vol. II, pp. 546-551.