A Historical Sketch of the Formation of the Confederacy, particularly with reference to the provincial limits and the jurisdiction of the general government over Indian tribes and the public territory

Front matter

A HISTORICAL SKETCH OF THE iFotrtnation of tfit Confetrttracg, PARTICULARLY WITH REFERENCE TO THE PROVINCIAL LIMITS AND THE JURISDICTION OP THE GENERAL GOVERNMENT OVER INDIAN TRIBES AND THE PUBLIC TERRITORY. BY JOSEPH BLUNT. JYEW-YORK: PUBLISHED BY GEO. & CHAS. CARVILL C. S. Van Winkle, Frintbr Southern District of New-York, ss. BE IT REMEMBERED, That on the eight day of December, A. D. 1825, in the fiftieth yparofthe Independence nstiie United states of Ameri ca, Geo. &. Chas. Carvill, of Ibe said district, have deposited in this office the title of a book, the right whereof they claim as proprietors, in 'he words following, to wit : " A Historical Sketch of the formation of the confederacy, particularly with reference to the provincial limits and the jurisdiction of the General Government, over Indian Tribes and the public territory.

By Joseph Blunt." In conformity to the act of Congress of the United States, entitled, " An act for the encouragement of learning, by securing: the copies of maps, charts, Rnd books, to the authors and proprietors of such copies, during the time therein mentioned ;"and also to an act, entitled. " An act supplemen tary to an act, entitled, an act for the encouragement of learning, by secu ring the copies of maps, charts, and books, to the' authors and proprietors of such copies, during the limes therein mentioned, and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints." JAMES DILL, Clerk of the Southern District of York. TO THE HON. STEPHEN VAN RENSSELAER. DEAR SIR, The examination of the subject of the following remarks was suggested by the discussions, which grew out of the controversy between the state of Georgia and the general government.

The extra ordinary positions assumed by the executive of that state, and his vehement invectives at the violation of its sovereignty, were well calculated to attract public attention, and to induce inquiry into the justice of his complaints. In governments of limited powers, as this confess edly is, a grave charge by the chief magistrate of a state, of an. infringement of the federal constitution, is well worthy of serious consideration. It necessarily implies the existence of one of the prominent dan gers, to which this republic is exposed : A design to usurp power on the part of the national government ; or a factious disposition in the state authorities : consolidation and despotism on one side ; disunion and anarchy on the other. In this imperfect volume, I venture to present to the puMic the result of my examination into the chief topics connected with that controversy.

Chapter I

Foundation of the European claims lo America. — Papal Grantst — Actual Possession. — First DiscoverVi The manner in which the European powers occupied the American continent, and the principles upon which this occupation was justified, and lines of division marked out between their transatlantic possessions, offer a most inte resting subject for the investigation of the historian. Among the various titles to this continent derived from papal grants; first discovery; prior occupation; or actual possession; it is not easy to fix upon all the eras, when each of these different claims was first set up, nor when it was generally admitted to be valid. In most instances the opposing parties have pro ceeded upon different principles ; until they have been brought into hostile contact, when their conflicting preten sions to American territory have been decided by an ap peal to the sword.

The oldest title of the European nations is not involved in so much doubt. It was founded upon papal grants* This continent was discovered at a time when none dared to call in question the right of the vicegerent of Christ, to dispose of the countries inhabited by the heathen, according to his sovereign pleasure. The bigotled feelings wi.ich had justified the invasion of Palestine, and the destruction of the followers of Mahomet ; though rendered less active and adventurous by the severe checks received by the catholic princes in their romantic expeditions, was still the dominant spirit of the age ; and Europeans implicitly believed, that the divine origin of their religion gave to its professors the same right to all countries possessed by unbelievers, that the Israelites had to the promised Canaan, and that the Pope was authorized to distribute, in the fulness of his apostolic power, those countries, with their pagan inhabitants, among the faithful servants of the catholic church.

A striking illustration of the state of feeling prevalent in Christendom, prior to the discovery of America, is to be found in the conduct of Prince Henry of Portugal, at the time he was pursuing those voyages of discovery towards the cape of Good Hope, which he had set on foot and pa tronized. To prevent any of the other powers from par ticipating in the advantages which he expected to secure to Portugal, he procured at different times from Eugene IV., then on the papal throne, bulls granting to that crown all the countries which should be discovered by the Por tuguese from Cape Non to the continent of India, together with the inhabitants, whom he authorized them to enslave.* This donation was then considered so valid, that Edward IV. of England caused John Tintam and William Fabian, subjects of his, who contemplated an expedition to Guinea, to relinquish it ; because the country fell within the bounds of the grant to Portugal ;t and all Christian princes, influ enced by their zeal for religion, were deterred from in truding into those countries which the Portuguese had dis- * Robertson's America, Book I. § 33. t Hakluyt, Pt. 2. p. 2. cpvered.

Their voyages, however, were confined to the coast of the eastern continent ; and about the time that they were turning the cape of Good Hope, Columbus discovered the Antilles, by steering a western course from Eu rope. The existence of islands and a continent beyond the Atlantic had not before that time been suspected ; and when Spain applied to the pope for a bull confirming its title to these dissoveries, Alexander VI. granted one, giving to Spain all the countries west of a north and south line one hundred leagues west of the Azores ; thus leaving to Por tugal an undisturbed title to all the discoveries on the eastern continent south of Cape Non ; which was, as Alexan der VI. construed it, all that Eugene had intended to grant.

Portugal, however, did not acquiesce in this construc tion; but claimed the islands discovered by Columbus in his first voyage, immediately upon his return to Spain, as within the limits of the grant by Eugene IV. ; and it appears, from a memoir addressed by Robert Thorne to the English ambassador at the. court of Spain, in 1527, that the Spanish crown offered to relinquish these discoveries to Portugal, as within that grant ; provided the latter would restore to Spain the goods of the Spanish Jews, that had taken refuge in Portugal, according to the treaty between the two powers, by which they had mutually agreed to restore fugitive subjects with their goods.* This agreement Portugal found it difficult to comply with ; or, perhaps, the new discoveries were not then considered as worth the sum she would have been obliged to raise ; and she accordingly entered into a treaty with Spain, concluded June 6, 1484, by which the line of demarcation between their possessions was fixed at 370 leagues west * Hakluyi, Vol. I. p. 217. of Cape de Verd, instead of the one prescribed in the bull of Alexander VI.* At that early period, the title to newly discovered coun tries appears to have been derived from the apostolic power of the pope.

Every Christian prince, indeed, considered himself entitled to those countries, independent of any papal grant, from the religious obligation by which they all felt bound to convert the heathen ; or to drive them from the possessions they so unworthily held : and the discovery of the countries inhabited by infidels gave them the privi lege of first exerting their arms for the propagation of Christianity, and also a strong claim upon the considerate bounty of the father of the church ; but still, to him they looked for a confirmation of their claims, and for a distri bution of the territories discovered. This is the foundation of the European title to the Ame rican continent, The right derived from the labour and expense of discovery is a subsequent improvement, which we owe to the doctrines of the reformation snd the diminu tion of the papal power.

Had not those great changes in the religious belief of Christendom taken place, the whole of the American continent, except Brazil, which fell to Portugal under the treaty of 1494, would probably to this day have been claimed and held by the Spanish crown. The expressions in the commissions given by Ferdinand and Isabella to Columbus, by Henry VII. to Cabot, and the voyages of discovery ordered by Francis I. do not refute the proposition, that this right originated in a papal grant. The first commission authorized Columbus " to discover and conquer islands in the ocean. "t It was, in fact, a per mission to make war upon infidels in unknown parts, plainly beyond the limits intended to be assigned to the Portu- * Jung's New World. t Hazard's State Papers, p. 1 . guese ; and the subsequent negotiation and treaty with Portugal fully proves, that Spain did not then conceive herself so much claiming by discovery, as by grant from the pope and the consent of Portugal.

The words in the commission to Cabot, authorizing him to discover countries "which were, before that time, unknown to all Christian people,"* are thought by Judge Marshall! to imply an admission of the right of any Chris t.an people, who had made a prior discovery : thus affording evidence of the early authority of that sort of title. With every disposition to submit to an authority so univer sally and so justly respected as his, still, I cannot but incline to the opinion, that these words, though of general import, referred solely to Spain and Portugal, and that it was the expectation of Henry, that Cabot might make some discove ries which would be construed to be without their grants; although their literal meaning would comprehend them. The construction of Alexander, by which the discoveries of Columbus were taken out of the grant of Eugene, justified that conjecture ; and his ceasing to take any steps, sub sequent to the discoveries of Cabot, to derive any benefit from them, proves that Henry did not mean to infringe the papal grant by that expedition.

After Cabot's return, it was evident that his discoveries lay within the boundaries there prescribed ; and Henry appears, from that time, to have relinquished all serious thoughts of acquiring the sove reignty of unknown countries.}; Francis I. of France, a liberal and enlightened prince, but little affected by the superstitions of his age, and, during his long and eventful reign, almost always in a state of hostility with Spain, so far questioned the validity of the fr> " Hazard's State Papers, p. 9. t 8th Wheaton, 577 f Robertson's America, Lib. 9. $ 5. papal grant, as to send out several mariners atdifferent times upon voyages of discovery. Whatever inference might be justly drawn from these voyages, if set on foot by another catholic monarch; when the peculiar circumstances in which Francis was placed, are taken into consideration, they will appear to be but of small or no authority in savour of the right of prior discovery, unsanctioned by the head of the church.

The first expedition, commanded by Verrazano, was in 1524, in the midst of that bloody war with Spain, which was closed by the entire defeat and captivity of Francis. After this, Jacques Quartier made several voyages to Cana da in the years 1534 and 1535, &c. In 1540, De Roche was sent out with Quartier by the same monarch, as his lieutenant, and in 1542, De Roche built a fort, and win tered in Canada.* At this period France and Spain were again at war ; and in that state the most scrupulous catholic could not be condemned, if he did not consider the transatlantic possessions of his enemy as more sacred than those in Europe. The same right of war which would have justified the invasion and conquest of Spain, would have authorized the invasion and occupation of her Ame rican dominions. It does not appear that any permament establishments were then Tnade ; and the title of Spain seemed to be gene rally acquiesced in by the European powers, except Henry VIII. who, having denied the supremacy of Rome, also questioned the validity of the gift to Spain and Portugal.

This, however, was a novel doctrine, savoring of protes tantism ; and more than a century elapsed after the discovery of America, before it obtained general currency. England, indeed, adhered to that principle during the ' Harris' Collection, 81 P. reigns of Henry VIII. and Edward VI. ; but their successor, Mary, restored the catholic faith, and with it submission to the Spanish title to America. In her reign we hear of no claim of England to any part of this continent, nor of any voyages nor expeditions to America; although the commer cial enterprise of the British nation was seeking new ave nues to wealth in Russia, Turkey, and Nova Zembla. In France, too, the same unwillingness to violate the papal grant was manifested by the catholic party ; and the protestants there, as in England, led the way to its in fringement.

The first French colony sent to America, was under the patronage and direction of Admiral Coligny, the celebrated leader of the Hugonots; and the utter indiffe rence manifested by the Court, at the massacre of those colo nists by the governor of Florida for an intrusion upon the possessions of his master, (when no war existed between the kingdoms,) and the coldness with which the gallant avenger of his countymen (De Guerges, also a protestant) was received by the minister, proves that the catholics still regarded the claim of Spain under the bull of Alexander as valid ; and that its violation by their heretic countrymen was justly punished. This colony was planted about the year I5si3.* Shortly after the destruction of this colony in 1567, Eli zabeth being securely seated on the English throne, and the protestant party having established its ascendancy upon a sure foundation, a more systematic policy seems to have been adopted by that princess, for the purpose of securing a footing on this continent.

Very little stress, however, appears to have been laid upon the prior disco very of Cabot. The letters patent granted to Humphrey Ogilby's America, 107. Gilbert in 1578,* and to Walter Raleigh in 1584-5,tdo not refer to any such discovery. They merely authorize them to "discover and search such remote heathen and barbarous lands, not actually possessed of any Christian prince, as to them shall seem good," and to hold the soil of the country to the grantees. They were also empowered to fortify the places they chose to occupy, and to repel all persons attempting to inhabit within 200 leagues thereof; unless those places should be pre-occupied by the subjects of any Christian prince in amity with Elizabeth. These patents were, in truth, nothing more than authorities to annoy the Spaniards, then preparing to invade England, and to de throne the head of the protestant party in Europe.

These expeditions were hostile measures against Spain ; and to Gilbert and Raleigh patents were given to encourage them in their designs. Many other subjects of that queen were engaged in voyages of discovery and adventure, as they were then called ; and the only distinction made by them, as to the American discoveries in possession of Spain, and those that were not, was, to plunder the former, and to trade with the natives in the latter. The title of Spain was acknowledged to no part of America ; but the whole con tinent was regarded as a good field for adventurous mariners, whether traders or buccaneers. This dispute between England and Spain raged with more or less violence for many years, and may not be considered as settled until the year 1C70. Previous to that time, difficulties were constantly occurring between the subjects of the two crowns in this quarter of the globe.

During the reign of Elizabeth, and also under her success sor, a continual war existed in America ; without any reference to the European relations of their respective * 1st Hazard's State Papers. 24. t Ib. 3». kingdoms. A remarkable illustration of this is to be found iii the efforts made by the Spanish ambassador to England (Gondamor) to procure the execution of Raleigh for an invasion of his master's possessions in the new continent* James yielded to his request, so far as to order that gallant and unfortunate soldier to be brought to the block ; butj not choosing to acknowledge the Spanish title to the coun try in which he had landed, (Guiana,) he issued a warrant for his execution upon a sentence of death, which had been passed sixteen years before against him on another ac count, and which had laid dormant all that period.* This singular state of things continued, with the general understanding among the English, that " there was nd peace beyond the line," and the Spaniards, on their part) treating all visiters to their settlements as hostile invaders ; until by a treaty, concluded in 1G70, between England and Spain, it was agreed that " the king of Great Britain and his subjects should remain in possession of what they then possessed in America.'' This Was the first recognition by Spain of a title to American territory in any European power but herself, and may be regarded as the era when the validity of the papal grant was formally relinquishedi From this date the right of discovery, connected with occu* pation, may be considered to be established, and the triumph of the protestant principle over the catholic complete* Previous, however, to the conclusion of this treaty^ Prance, a catholic kingdom, had in some respects counte nanced the protestant doctrine.

In addition to what was done by Francis and Coligny, under Henry IV. (who Was a protestant at heart,) colonies were sent out to the north eastern parts of the United Sta;es and Cankda ; and A 1st State Trinls, 2)9 Commission given, dated 1603, to De Montz, constituting him Lieutenant-General in L'Acadie.* In this document, as well as in those patents given by James and his successor in England, no mention is made of the right of discovery ; but the settlement and occupation of the American continent are justified by reason of the unbelief of their inhabitants, and the desire of the grantors to extend the blessings of Christianity aud civilization to barbarous, and, in some instances, almost uninhabited regions. Henry IV. in his commission to De Montz, expresses his motive to make a settlement in L'Acadie, to be " a zealous resolution to cause the inhabitants, men without religion, to be converted to Christianity, and to draw them from the ignorance and unbelief wherein they are."

James asserts the motive of granting the first Virginia charter, 1606, t aud of planting that colony, to be "the propagating of the Christian religion to such people, as yet live in darkness and miserable ignorance of the true know ledge and worship of God — and may in time bring the infidels and savages living in those parts to human civility and to a settled and quiet government." A similar motive is declared in the second charter, 1609,J and, as the conversion of the aboriginals is declared to be the principal effect desired from the colony, all catholics are forbidden to go thither until they have taken the oath of supremacy. So too in the third charter to Vir ginia, 161 1 ;§ the commission to Raleigh " to undertake a voyage into the south part of America," 1616 ;|| the charter to the Plymouth company, 1620 ;1T the grant of Nova Sco tiatt and of New-Albion ;H the dilserent proclamations con- * Hakluyt, Vol. 4. 1619. 1st Hazard, 45. t 1st Hazard, 50 t Ib. 58.

(j Ib. 72. || Ib. 82. U Ib. 103. tt Ib. 134. tt Ib. 160. cerning Virginia and New-England by James ; the charter to Massachusetts, 1628;* to Lord Baltimore, 1632 ;t the Carolina charters, 1664 4 that to Connecticut, 1664 ;§ to Rhode-Island, 1664 ;|| to William Penn, 1680 ;f the motive to undertaking the colonies, and the chief end of the adventures are declared to be, by means of commerce and intercourse with the natives to bring them to the know ledge of Christianity, and to bring them, by just and gentle manners, to the love of civil society. Such are the principles upon which the Europeans justified the occupation of the American continent. The catholic and protestant monarchs diilered only in this : that the former derived their title from the pope, who made the donation for the purpose of extending the kingdom of Christ ; and the latter occupied the territory under the same pretence, without a grant : but neither asserted that prior discovery gave any right to the soil.

The right of occupation was derived by both; either directly, or through the pope, from their obligation to ameliorate the condition and christianize the aboriginals, whose permission to make a settlement was generally asked and obtained. In the Bri tish provinces, although individual instances may be found in which Indian rights were violated ; their title to the soil was always respected by the public authorities. It was not, indeed, regarded as a fee simple, which cannot pro perly belong to wandering tribes in a hunter state. But that they had a right to territory within certain boundaries, and that they were treated with by the colonial govern ments, from the first settlement of the country, until those governments became independent of the crown, to induce them to transfer and sell their title to the whites, are incon- » 1st Hazard, 239. t Ib. 327.

X 4th Vol. Remembrancer. | Ib. Vol. 3. p. 30. (I Ib. 34. 1[ Ib. 104. trovertible facts. Upon the first landing of the colonists, they purchased, in person, of the Indian chiefs the title of the tribes to tracts required for their accommodation, and afterwards made agreement for the extension of their limits upon the increase of population. Such were the purchases made by the first settlers at Jamestown and Plymouth, by the Dutch at New-York and Albany, the Swedes in the Delaware, by BaUimore in Maryland, and by Penn at Philadelphia, Afterwards, when civil governments were established, and conquests were made at the common expense in the Indian wars, that grew out of the different habits and in stitutions of the two parties, the legislatures or the royal governors took the subject under their control, and pro hibited citizens from purchasing the aboriginal title without public authority.

In short, they assumed the right of pre emption of that title, as a right of the community, and it became vested in that bodv. or person, that possessed the constitutional right to act in its behalf. In this manner, the sea coast of the North American continent became studded with European settlements of various nations, which extended themselves into the interior, and along the shore, until they encrpached upon the limits claimed by a colony of another power. This produced a conflict of in terests, generally resulting in a decision by force, in which the mother countries often, although not invariably, sus tained their colonies. In discussing the respective titles of the European powers, the right of prior discovery was, of course, strongly insisted upon, especially by those whose claims were not supported by the better title of actual occupation, All Christian princes professed to be equally desirous of civilizing and converting the savages ; and as none would allow the superior qualifications of their antagonists to impart those benefits to the aboriginals, it became necessary to appeal to some other principle, by which their clashing claims might be settled.

In this dilemma, it was natural to resort to the right of prior discovery, it having been the foundation of the papal grants, and of the right of Spain. This soon became generally acknowledged as between Europeans, especially when followed by occupation ; and the limits of their several claims were marked out by treaties, made at different times, by the principal powers.

Chapter II

Various claims to the North-Eastern coast of America. — Provincial Charters. — French Claims. — North-West Territory. — Treaty of 1763. — Extent of British Provinces at the commencement of the American Revolution. For more than two centuries after the discovery of Ame rica, the greatest uncertainty prevailed as to the limits of the territory claimed by the British colonies ; and it was not until 1795, three centuries after that event, that the title of the United States to the whole territory comprehended within the boundaries marked out by the treaty of 1783, was acknowledged by Spain, one of the powers which originally disputed the British claim, and which was the last that recognized the title of the United States. At the time of the first settlements by Europeans, no less than four powers laid claim to the sovereignty of this part of the continent ; and a fifth (Sweden) actually com menced a colony upon the Delaware.

Henry IV. of France, by his commission to De Montz, dated 1603,* authorized him " to extend and establish the authority" of that monarch from the 40th to the 46th degree of north latitude. James I. of England 1606, granted to the London and Plymouth Companies, the pri vilege of making two settlements on any part of the coast of America between the 34th and 45th degrees of north latitude;! all which country he called "Virginia," a name given by Raleigh, in honour of his royal mistress, to the place which he undertook to colonize, about 20 years before. Harris's Collection, 1st vol. 813. 1 Hazard, 2d vol. 50. All the territory, from Connecticut river to the wcstwaid of Delaware bay, was claimed by the Dutch under the title of the New Netherlands ;* the southern part by Spain, as part of Florida.

This last power also set up the papal gift against all these powers, although her claims had then fallen into disrepute ; and finally, her adverse circumstances com pelled her to relinquish a title which all but herself were interested in denying. Such were the different claims to the North Eastern coast of America at the commencement of the seventeenth century ; and under these circumstances, some English adventurers, acting under the London company, undertook to make a settlement under the grant, above referred to, from James I. By this grant they were empowered to establish a colony between the 34th and 41st degrees of north latitude ; " in that part of America," as the grant expresses it, " called Virginia, and other parts and territories in America, either appertaining unto us, or which are not now actually possessed by any Christian prince or people ;" and when they had selected a spot, the coast on either side for 50 miles, and the land 100 miles into the interior, became appro priated to that colony.

The other (Plymouth) company, named in the same charter, was authorized to do the same with similar privileges between the 38th and 45th degrees of north latitude. To prevent these companies from inter fering with each other, the one which should iast plant a colony, was forbidden to settle within 100 miles of the other ; and as the planters had it in view to trade with the Indians, it was provided that no Englishmen should be per mitted to establish themselves in the interior behind either of these colonies, without the consent of the Directors of Smith's History of New York, 21. Ogrilbey's America. the several Companies residing in England, and appointed by the king. The colony first planted under this grant was at Jamestown, by the London company, which secured by that step a tract one hundred miles square.

Finding this too small for their purposes, they applied three years after wards for " a further enlargement and explanation of their said grant ;" and in 1600 an additional grant was made to the London company in the following words : " All those Lands, Countries, and Territories, situate, lying, and being in that part of America, called Virginia, from the Point of Land, called Cape or Point Comfort, all along the Sea Coast to the Northward, two hundred miles, and from the said Point of Cape Comfort, all along the Sea Coast to the Southward, two hundred miles, and all that Space and Circuit of Land, lying from the Sea Coast of the Precinct aforesaid, up into the Land throughout from Sea to Sea, West and Northwest." The terms of this grant are very vague and indefinite. The first inquiry naturally suggested upon its perusal is i does the north and south line follow the windings and in dentations of the coast, or is it to be a direct north and south line, and then to comprehend all the sea coast be tween the parallels of latitudes at the extreme north and south points ?

But the most essential question as to its meaning is< what is intended by the phrase, '' into the land from sea to sea, west and north west ?" From which end of the north and south line, should the western line commence to tun ? and from which end, that which runs to the north-west ? If the west line should run from the north end of the line, and the north-west line from the south end, as the order in which the boundaries are mentioned would lead one to conclude, they will meet before they reach the Pacific, and Comprehend a tract of land of a triangular form, about as large as Pennsylvania. But if the other construction be adopted, the west line. commencing at the south point, will run on to the Pacific ; whilst the north-west line will run up into the northern parts of America, until it strikes the Frozen Ocean ; thus making the southern boundary of Virginia three thousand miles, the western boundary four thousand, and the north eastern boundary five thousand miles in length.